I move—

This side of the House did its best to persuade the Minister of Finance to do his duty in connection with this matter, namely, to get hold of the people who have been living on the fat of the land for the last five years and to compel them to bear a share of the burden of the State. Unfortunately, we did not succeed in that, but I think that this debate has nevertheless served its purpose. First of all, our friends of the Labour Party were unmasked yesterday. They are the party who have told us ad nauseam that they are the enemies of the capitalist system in South Africa. They are the people who cannot bear to see the rich people being the privileged section, and they do not want rich people to make money as they like, or to be placed in the special position of not being taxed in proportion to the rest of the community. We have been told time and again that that is a system which they want to destroy. I think it is an excellent thing that we should know that the Labour Party had a chance yesterday to show that their intentions were sincere. What is the spectacle we witnessed here? That the enemies of the capitalist system yesterday went as far as to assist in the protection of that privileged section in our country. To me it was one of the sorriest spectacles we have ever witnessed here, namely, that the Labour Party repudiated its past in front of Parliament and the people. This only goes to show how bad company can spoil good people. They are now in company with the capitalists on the other side, and for that reason they are now acting as the advocates and champions of the capitalists. They are the people who have always told us that the Minister of Finance should assist in raising the standard of living, especially of the less-privileged section of the population, and that the Minister of Finance and the Government should do more to make social services available for the less privileged. Yesterday we moved an amendment which in our opinion, if the Minister had accepted it, would have brought an additional amount of at least £4,000,000 into the coffers of the Treasury. If the Minister had accepted our proposal to tax share transactions in the same way as land transactions, it would have brought in an amount of at least £4,000,000. But we know, and it is a well-known fact, that share transactions do not take place on the Stock Exchange only.

The Minister himself most likely does not know how much it is, but many transactions take place away from the Stock Exchange; it is therefore possible that if the amendment which we moved yesterday had been accepted the State would not have received £4,000,000 but perhaps £5,000,000 or £6,000,000. This was an excellent opportunity to supply the Minister with money to benefit the less privileged section, the people for whom our friends over there have always pleaded, according to their own statements, namely, the poor people and the workers in this country. The man who wanted to improve the position of the workers should have voted in favour of that amendment; but what did we find? The Labour Party refused to support us.

But surely you do not doubt that we want to further the interests of the workers?

Well, you did not show that yesterday. We asked them to turn their words into deeds, and not only to talk glibly about the lot of the less well-to-do. Yesterday they had the opportunity of further taxing people who have been living on the fat of the land for five years.

You have also allowed chances to pass.

It is just as well that the poor people and the workers outside should know this fact. I could not believe it. The hon. member for Krugersdorp (Mr. van den Berg)—how his heart sometimes bleeds for the poor people! And yesterday when a division was called between the people who are in favour of the capitalists and those who are against them, where was he?

On the right side.

He crossed the floor of the House a little sheepishly, but he nevertheless crossed. As far as the Minister of Finance is concerned, he has no excuses. Our motion yesterday was clear; namely, we asked that all transactions in shares should be registered, and that a tax should be imposed on those transactions, equivalent to the transfer duty on land transactions. That tax, as far as we know, would have given the Minister an income of £4,000,000. If registration is provided for, it might easily mean an additional income of £5,000,000 or £6,000,000. But the Minister despises it; he does not need it.

He prefers to tax the poor people.

Yes, people with an income of £400 or less. I can only tell the Minister that public opinion has been roused in this country in regard to this question. There is no other matter in this country which has caused the same amount of comment as this neglect on the part of the Minister. We will watch him, and public opinion will force him to do his duty next year, a duty which he neglected this year. We are going to watch the Minister in future.

Motion put and agreed to.

Bill read a third time.

Mr. Speaker, as you have just announced, we are dealing here with a motion that this Bill be read a second time, on which two amendments have been moved which are now before the House. In the first instance I shall confine myself to these two amendments. The first is the amendment of the hon. member for George (Mr. Werth) in which he asks that this Bill should be referred to a Select Committee to bring about such amendments that the State will have full and effective control of the money and credit of this country. It is clear to me that when my hon. friend moved that amendment, he overlooked something which I said when I moved the second reading. In my second reading speech I pointed out that in this Bill, although we were repealing a portion of the Act of 1933, the Currency and Exchanges Act, certain portions of it would remain on the statute book. I referred more particularly to Sections 8 and 9 of Act No. 9 of 1933, and I think it may be just as well if I read to the House what appears in Section 9 as it was passed in 1933. In that Section it is provided, inter alia—

1. (1) The Governor-General may make regulations in regard to any matter directly or indirectly relating to or affecting or having any bearing upon currency, banking or exchanges.

That is as wide as we can possibly put it. Then we have the second paragraph—

Not only has the Governor-General the above-mentioned power to make regulations, but the Governor-General, namely, the Government, may apply sanctions. Then there also appears this third sub-clause—

What could be wider than that? The hon. member wants us to bring about amendments in this Bill so that it will give the Government full and effective control of the money and credit of our country. If the existing Act of 1933 does not give the State full and effective control of the money and credit of this country, I do not know what else can do it. In other words, the amendment of the hon. member for George is quite unnecessary. There are two points especially which my hon. friend dealt with in his speech, and which were also dealt with by other speakers in the course of this debate. The first point is this— I am putting it as best I can, as my hon. friend put it, and I do not think I am putting it unfairly— my hon. friend says that the Reserve Bank must not have the sole right to buy gold from the mines. The Reserve Bank has that right today, but it only has that right under an emergency regulation which will lapse after the war, and if that emergency regulation lapses— and it will fall away after the war— the Reserve Bank will have to compete with the commercial banks in buying gold from the mines. There is then a danger that the commercial banks, as a result of the gold which they buy from the mines in such circumstances, will be able to buy foreign currency, and in that case the Reserve Bank will not be able to control the commercial banks properly. That is how I understood his argument. What is the position at present? The Reserve Bank did not get the sole right of buying gold from the gold mines under the Act of 1920. But since 1926 the Reserve Bank has had an agreement with the Chamber of Mines to buy the gold production, but with the exception of gold which is produced by the smaller producers. There was therefore a portion—a relatively small portion—of the gold which the Reserve Bank did not buy under that agreement.

When was that agreement entered into?

That agreement was entered into in 1926, and, as I have said, it related to the gold which is produced by the big producers. In 1939, at the outbreak of war, a regulation was made under this Act from which I have just quoted, namely, the Currency and Exchanges Act of 1933, that all the gold which is produced in the country must be sold to the Reserve Bank. The only material difference between the provision which had been made previously and the position which then arose was that a statutory provision was used or called into being. The position which arose as a result thereof was that the Reserve Bank bought not only the gold of the big producers, as a result of that regulation, but also of the smaller producers, and the object in making that regulation was to ensure that no portion of our gold whatever would fall into the hands of the enemy. As I have said, that regulation was made under the Act of 1933. At a later date that regulation was incorporated in the general national emergency regulations. It appears today in those general regulations, and not in the regulations framed under the Act of 1933. The reason why that was done was not because any doubt had been expressed in connection with the question whether such a regulation could be made under the Act of 1933. As far as I know, no such question was ever raised. The reason is that other regulations were made in connection with the control of exchange, i.e. under the National Emergency Regulations, and in connection with those regulations there was a doubt whether they would be made under the Act of 1933, and in order to consolidate those regulations the Law Advisers felt that we should consolidate all the regulations under the National Emergency Regulations. But as far as I know it was never questioned on any occasion that this regulation in connection with the purchase of gold was intra vires the Act of 1933. That is the position then. The existing regulation will, of course, lapse within six months after the termination of the war. If that regulation lapses, there still remains the agreement between the Reserve Bank and the Chamber of Mines. The hon. member for George says, of course, that that agreement is of no legal force. It can be altered and it can be terminated. There is very little danger that a change will be made, and that the commercial banks will then be able to compete with the Reserve Bank in buying gold. I would go even further and describe it as a hallucination. The two commercial banks have not got connections throughout the world. The commercial banks have not got it; the central bank has and the central bank is the only bank which is therefore strong enough in this connection. In any event it is too strong for the commercial banks. I can see no reason why the commercial banks should want to compete with the Reserve Bank in buying gold. But let us assume that that does happen, and that that improbability which my hon. friend fears, actually takes place. Then we still have the position under the Act of 1933 that the State can act as it did act in 1939. My hon. friend may say that he does not trust the State, but in that case he cannot trust the State if the Reserve Bank is placed under the complete control of the State. No, we have full control under that section of the Act. We have already invoked the provisions of this section, and while that section exists. I cannot see why it is necessary to amend this Bill in accordance with the motion which has been introduced. The second point which the hon. member for George raised is this. Why, he asked, did we not keep pace with banking development in the progressive countries? Why do we not make the Reserve Bank a complete State institution, an institution with a direction appointed entirely by the State? Well, it is correct that there are certain countries which have developed in that direction as far as central banks are concerned, but I would not go so far as to say that that is necessarily the direction in which all progressive countries of the world have developed. It is quite correct that Canada went in that direction. My hon. friend now wants us to follow Canada’s example. I do not know why Canada made that change, but will my hon. friend advocate that we should also follow Canada’s example in making a present of something like 200,000,000 dollars to the United Kingdom. I would not advocate it either. But before one can advance that type of argument, one must go a little more fully into the circumstances, and as far as I am concerned I would prefer to see what will be the effect of the experiment which was made by Canada and the other countries before I follow their example. This position is not at all as general as was indicated in this House. It is true that Canada developed along those lines, and the Untied States of America has a federal co-ordinating board over the reserve banks, namely the Federal Reserve Board, the members of whom are appointed by the President, but the reserve banks themselves, of which there are twelve in the United States, are still all in this position that the directors are not appointed by the State.

But the directorates are controlled by the Federal Reserve Board.

It has certain powers, but the reserve banks are in this position that the directorates are not appointed by the State. I have ascertained from the Vice-President of the Reserve Bank that in the countries of South and Central America there is not a single case where the State nominates all the directors or the majority of directors. In the Argentine, for example, the Government nominates two out of twelve; in Chile, Peru and Colombia three out of twelve. In India the State nominates five out of thirteen. It is true that Denmark has adopted a central State Bank, but England, Holland, Belgium and Portugal and other countries still adhere to the position that all the directors are nominated by the shareholders. There are two types, therefore. We in South Africa occupy a position in between. Here the State nominates five out of the eleven directors, and amongst those five there are two key position holders as far as the bank is concerned. Of course, the position is not the same as in the case of the Bank of England, where all the directors are chosen by the shareholders. We have certainly not, as the hon. member for Fauresmith stated, taken over the English system holus-bolus. There are therefore these two groups of central banks, one group where the State has control through the directorate and the other where the majority of the directors are appointed by the private shareholders. There is something to be said on both sides. The hon. member for George put the case for complete nationalisation of our Reserve Bank. He thinks that there is a danger that the six directors who are not nominated by the State, will out-vote the five. The hon. member for Fauresmith stated that it was possible for 51 people amongst all the shareholders to control the bank. Well, there may be a certain amount of danger. It is most improbable that it will happen, but there is a certain amount of danger. There is, however, danger on the other side as well, especially as the Reserve Bank will lose the amount of independence which it has today and simply become a State department, without any independence whatsoever. In my opinion the position as it exists today is the best we could possibly want. In other words, today we have this advantage that while the Treasury, the State, has all the power behind the scenes, according to the Act which I have read, we can nevertheless benefit from the independent advice and objective judgment of outsiders in connection with the important question of money and rates of exchange. That is an advantage we have today, and which I should not like to sacrifice. But the hon. member stated that there was a danger that the six members of the directorate would out-vote the five. The hon. member for Vasco (Mr. Mushet) correctly referred to the experience of our country during the past twenty-four years as far as this danger is concerned. The danger is very slight. The hon. member for Troyeville (Mr. Kentridge) also pointed out that the six elected members have to represent various interests, one representing agriculture, three representing commerce or finance, and two representing industrial undertakings. It will not necessarily be easy to get the six to stand together. But what is the position? The Reserve Bank was created to carry out the monetary policy of the Government. The Reserve Bank, its directorate, the president of the bank, advises the Government in connection with the formulation of the policy, but it is the Government which determines the policy, and eventually the Reserve Bank is called upon to carry out the policy as laid down by the Government. It seems incredible to me that any Reserve Bank, any central bank, would act in conflict with the express wish of the Government. The hon. member for Ceres (Dr. Stals) hit the nail on the head in one respect. He said that the Reserve Bank could not maintain a policy which is in conflict with the policy of the State. If that is so, the whole case of hon. members on the other side falls away. If that were to happen, if the Reserve Bank attempted to go against the policy of the State, the reply is in the Act of 1933. In that extremely improbable event, of which hon. members are afraid, we have the Act of 1933. I do not therefore think it necessary to accept the amendment of the hon. member for George. The hon. member for Krugersdorp (Mr. Van den Berg) also moved an amendment, and his amendment goes further than that of the hon. member for George. The hon. member for George contemplates the nationalisation of the Reserve Bank : the hon. member for Krugersdorp contemplates the nationalisation of all banking. The hon. member for George contemplates the Reserve Bank having the sole right of purchasing gold; the hon. member for Krugersdorp goes further. He also wants the Reserve Bank to have a monopoly in connection with the issue of credit. The hon. member for Krugersdorp replied very clearly to my question, stating that under his amendment the commercial banks will have to disappear, that there would be only State banks. I have already referred to the dangers in connection with a Central State Bank which degenerates into a State department under the direct control of the Government, and of course, the same danger will arise in connection with a State commercial bank which will be there to serve the interests of the Government. The hon. member cannot expect me to accept his amendment. He now advances the argument that the credit banks create credit, and he quotes Mr. McKenna as his witness in that connection. It is not necessary to quote him.

He is an authority.

It is not necessary to quote him. We all admit that the commercial banks create credit, but Mr. McKenna did not say that as a result of that we must destroy the commercial banks. He himself was chairman of a big commercial bank, the Midlands Bank. It is wrong to infer from that what the hon. member inferred, that because the commercial banks create credit we must destroy them. It is true that the commercial banks do create credit, but it does not necessarily mean that they have full control of credit in the country. The hon. member for Waterberg (Mr. J. G. Strydom) spoke of the tremendous power of the two overseas commercial banks in connection with the creation of credit. He stated that we had only one line of defence against this danger, namely, the Reserve Bank, that therefore we must make the Reserve Bank as strong as possible. I go further. We have not only got one line of defence against the danger which he fears, but two lines of defence. The first is the Reserve Bank, as the hon. member correctly said. It is the Reserve Bank which, as in other countries where there is a central bank under the Government, lays down the general credit policy of the country in South Africa. The hon. member for George apparently wants to go a little further. He wants the Reserve Bank not only to lay down the policy generally but also to give effect to the policy by directly controlling the commercial banks. The hon. member for Krugersdorp goes even further. He thinks the Reserve Bank should be the only credit-giving institution. The attitude we adopt is that we have the Reserve Bank with wide powers to influence, and in the last resort, to control the creditgiving powers of the commercial banks. Practice has shown that it is more important in connection with the execution of the general monetary policy of the country that there should be consultation with the Reserve Bank and the commercial banks; that the Reserve Bank should simply issue its orders; in other words, it is more important that the general policy will be carried out in the spirit rather than in the letter—the spirit is more important than the letter.

What is the position if the policy of the two are in direct conflict?

Then the position is that under this Bill the Reserve Bank has wide powers in connection with discounts, advances and investments. The Reserve Bank can ultimately determine what the credit policy will be, because it will be able to compete with the other banks and control the other banks by the fixation of exchange rates. There we have the first line of defence. The reply to the question of the hon. member for Krugersdorp is to be found in Clauses 8 and 9 of this Bill and the commercial banks are not free to do as they please. The Reserve Bank has the powers—and they are far-reaching powers—which are being made even wider in this Bill, and ultimately the commercial banks cannot stand up against the Reserve Bank. And there is a second line of defence, the Government. Under the Act of 1933 the Government has power in times of trouble and in the event of emergency to make regulations and to apply sanctions with the object of making the Government’s monetary and credit policy effective. There again the reply is contained in Section 9 of the Act of 1933. There are two lines of defence, therefore, the powers of the Reserve Bank and the powers of the Government. My reply to the amendment of the hon. member of Krugersdorp is therefore as follows: In so far as there is a danger in the fact that the commercial banks can create credit, we have sufficient powers, thanks to these two lines of defence, to ward off that danger. On the other hand, there is a much bigger danger connected with it if we make the creation of credit a function of the State, as the hon. member desires—in other words, the danger that credit will be created merely for political purposes and without taking into account sound financial principles. The hon. member for Ceres raised one new point which was not dealt with by the other speakers. He stated that it was part of the function of a central bank to act as a clearing house. That is so. The central bank, for the sake of convenience, acts as a clearing house, but only in so far as it concerns commercial banks which are members of the existing clearing house.

It can be promoted by the central bank.

The hon. member stated that it was part cf the duties of the Reserve Bank.

A function.

The hon. member said that in Canada all the chartered banks obtained clearing facilities. I want to refer to the evidence before the Select Committee on the Banking Bill, given by the Vice President of the Reserve Bank. What did he say in connection with this point?—

Dr. De Kock went further and mentioned places such as Stockholm, Paris, New York and London and other places where there were various banks which were not members of the clearing house.

As far as Canada is concerned I have the legislation here and it is clear on this point.

He went on to say—

The plea of the hon. member was made principally as the result of certain points which arose in connection with one of our own banking institutions. In this connection through the intervention of the Reserve Bank a considerable concession was made, which the hon. member also admitted. In view of that we need not go into further details. Then the hon. member for Waterberg referred to the wording of Clause 3 (6) (a) which deals with the qualifications of directors, and to Clause 1 (5) which deals with the domicilium of shareholders who are entitled to vote. In regard to Clause 3 (6) (a) the intention seems to me to be fairly clear, namely, that a director must comply with both qualifications; he must be a Union National and he must also reside in the Union. If we simply substitute the word “and” for the word “or” it will probably have just the very opposite effect.

Substitute the word “who.”

In any event I give hon. members the assurance that both requirements are intended, and I shall discuss this matter further with the Law Advisers. With regard to Clause 15, there we have a position which arose as a result of the fact that we are now incorporating into the Act a provision which was previously a regulation. In the regulation the word “domicilium” is still used, and we have left it at that, but I shall go into the matter whether the word “resident” can be substituted for the word “domicilium.” The hon. member for Waterberg raised a subject of considerably more importance. He referred to the statement which was recently made in connection with international monetary plans. He referred to the role which gold would play in this connection, and asked whether the demand for gold would be extended or restricted by these plans. Well, the plans which were published over the week-end are not the plans of the various governments. They are the plans of experts. Those plans will still have to be submitted to a conference of the representatives of the various nations who, it is hoped, will submit definite proposals which can then be dealt with by the various governments. We have not yet reached a period when any government, as such can make a declaration in connection with these plans. It is true that we are studying the draft plans, but it would be wrong on my part to make a statement at this stage on behalf of the Government in connection with these plans. In regard, to the specific point, however, which the hon. member mentioned in connection with gold, I just want to say this, if you will permit me, Sir: I have already stated on a previous occasion that the position of gold under the Keynes and White plans, as they were before us at the time, would be better than they would have been if we had had to restore the pre-war conditions. In other words, I regarded these two plans as plans which would improve the position in comparison with the pre-war position. I think that the same can be said of the institution of an international monetary fund on the basis now proposed. I think it will serve to restore gold to the position of an objective regulating factor in international trade. There will be considerably more elasticity under this proposal than under the old international gold standard. The human element will be stronger. It will cause difficult problems, but they should not be insurmountable problems, and if these problems are wisely tackled, I think we can take it that the acceptance of this plan will only serve to strengthen the position of gold in the world and our position as a gold producing country. I do not think it will be right on my part to say more in that connection at this stage.

†It only remains for me to say a few words on the points which the hon. member for Durban (Berea) (Mr. Sullivan) made in this debate. If I understood my hon. friend correctly, there were two points that he was chiefly anxious to make. The one point was that this Bill means going back to 1925, that it means going back to the gold standard. I hope the hon. member has not created the impression that when this Bill is passed we shall be back on the gold standard. I have already explained the position in that regard.

Would it be possible to bring the provisions of the 1933 Act into this Bill as part of the charter of the Central Bank?

I do not think it is necessary; but my hon. friend is raising a different point now. I am replying to the points he made in this debate. It is perfectly true that sub-section (1) of Section 11 requires the bank to redeem notes in gold on demand, in such form and subject to such conditions as the Governor-General may determine by proclamation. But it is no less true that sub-section (2) of the same section provides for the immediate suspension of that provision, and I have already indicated that we shall issue such a proclamation together with this Bill, and that therefore no change whatever will be effected. The hon. member has made it clear that he himself is not opposed to the gold standard. He believes it will be of advantage to the post-war world. Well, this Bill as it stands will make it possible to go back to the gold standard if and when that is a feasible and correct course to pursue. I cannot see, therefore, why the hon. member should quarrel with the Bill on that account. In the second place, the hon. member said in effect, let us have a managed gold standard currency system. He spoke in particular of the United Kingdom system in 1932 to 1939. Well, I cannot see what there is in this Bill to prevent us from having what the hon. member wants. The hon. member mentioned two things in that connection. He mentioned the fixing of the bank rate. Section 8 (2) gives the Reserve Bank the right to fix the bank rate. He mentioned also the question of a fiduciary issue. We do not provide for a fiduciary issue in this Bill on the same basis as is the case under the law in England. What my hon. friend chiefly wants to secure is elasticity. Well, I contend that in this Bill we have got the elasticity which is desired. That elasticity is provided for by our laying down a ratio of 30 per cent. of liabilities to the public. We have not got a fixed fiduciary note issue, but we have in effect got a percentage fiduciary issue. Everything above that 70 per cent. represents that percentage fiduciary issue, as I have called it, and with the present position of the Reserve Bank we have a very wide margin indeed. It seems to me that the percentage fiduciary issue such as this Bill provides for is really a much more logical and elastic proposal than the proposal for a fixed fiduciary issue, which, as we have seen in England during the last few years, had to be changed by Parliament from time to time.

We have a minimum.

We have a 30 per cent. figure which is a minimum figure and which, I would contend, for a gold producing country is a figure which is certainly low enough and which should not be reduced. I would therefore contend that under this Bill we can carry out a managed gold standard currency policy, which is in effect what we have today. We can carry out that policy, and there is therefore no reason for my hon. friend to oppose the Bill. I think I have dealt with most of the points which have been raised in the debate and I hope the House will now be prepared to have it read a second time.

Question put: That all the words after “That,” proposed to be omitted, stand part of the motion:

Upon which the House divided:

Ayes—68 :

Abbott, C. B. M.

Alexander, M.

Allen, F. B.

Barlow, A. G.

Bawden, W.

Bekker, H. J.

Bell, R. E.

Bodenstein, H. A. S.

Bosman, J. C.

Bosnian, L. P.

Bowker, T. B.

Christopher, R. M.

Clark, C. W.

Connan, J. M.

Conradie, J. M.

Davis, A.

De Kock, P. H.

Derbyshire, J. G.

De Wet, P. J.

Dolley, G.

Du Toit, A. C.

Du Toit, R. J.

Eksteen, H. O.

Faure, J. C.

Fourie, J. P.

Friedman, B.

Goldberg, A.

Gray, T. P.

Hare, W. D.

Hayward, G. N.

Hemming, G. K.

Henny, G. E. J.

Heyns, G. C. S.

Hofmeyr, J. H.

Hopf, F.

Howarth, F. T.

Humphreys, W. B.

Jackson, D.

Johnson, H. A.

Kentridge, M.

McLean, J.

Maré, F. J.

Morris, J. W. H.

Mushet, J. W.

Neate, C.

Payn, A. O. B.

Pieterse, E. P.

Pocock, P. V.

Russell, J. H.

Solomon, V. G. F.

Steyn, C. F.

Stratford, J. R. F.

Sturrock, F. C.

Sutter, G. J.

Tothill, H. A.

Trollip, A. E.

Ueckermann, K.

Van der Merwe, H.

Van Niekerk, H. J. L.

Van Onselen, W. S.

Visser, H. J.

Wares, A. P. J.

Waring, F. W.

Warren, C. M.

Williams, H. J.

Wolmarans, J. B.

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

Noes—29 :

Booysen, W. A.

Bremer, K.

Conradie, J. H.

Dohne, J. L. B.

Dönges, T. E.

Erasmus, F. C.

Erasmus, H. S.

Fouché, J. J.

Grobler, D. C. S.

Kemp, J. C. G.

Klopper, H. J.

Le Roux, J. N.

Louw, E. H.

Ludick, A. I.

Luttig, P. J. H.

Malan, D. F.

Mentz, F. E.

Nel, M. D. C. de W.

Olivier, P. J.

Stals, A. J.

Steyn, G. P.

Strauss, E. R.

Strydom, J. G.

Van Nierop, P. J.

Vosloo, L. J.

Werth, A. J.

Wessels, C. J. O.

Tellers: P. O. Sauer and J. J. Serfontein.

Question accordingly affirmed and the amendments dropped.

Original motion put and agreed to.

Bill read a second time; House to go into Committee on the Bill on 28th April.

I move—

This is the small Bill, the introduction of which has become necessary, because under Section 4 of Clause 1 of Act 24 of 1922 we have this position that an Act passed by the Union Parliament does not apply to Walvis Bay, unless it is specifically provided that it is to apply to that port. It is not sufficient to lay it down in the law that it will also apply to the mandatory territory of South-West-Africa. Even if such a provision is inserted in the Act and it is applicable to South-West Africa, it does not yet mean that it is applicable to Walvis Bay. It has to be stated explicity in the law that it is applicable to Walvis Bay. Acts have been passed by the Union Parliament which have been subsequently made applicable to South-West Africa, either because it has been provided in the law itself that the mandatory territory of South-West Africa was included, or it has been done by means of a proclamation. But no reference has been made specifically to Walvis Bay. On the other hand, laws were also passed in 1936 and 1939 in which Walvis Bay was specifically mentioned, and those laws do apply to Walvis Bay. This should also have been done in the other laws which I have mentioned. It was not done, however, probably because Walvis Bay was lost sight of on those occasions. The object of this Bill is also to apply all those laws which are applicable to the mandatory territory, to Walvis Bay, but not to make them retrospective. In future unless it is expressly stated in a Bill that Walvis Bay is excluded from the operation of the Act, that port will be included. This is the position and that is the object of this small Bill.

As Walvis Bay is Union territory and as it will now, in terms of this Bill, be subject to the legislation of South-West Africa, there are two points which I want to bring to the Minister’s notice, and I want to ask him in his reply to explain the position to the House and to the country. In South-West Africa recently the Administrator proclaimed a law which was in entire conflict with the position in South Africa. The particular Ordinance referred to compulsory minimum wages, and the Ordinance in South-West Africa included everybody, even those employed on farms. This Ordinance which was proclaimed in South-West Africa will, if the Bill now before the House is passed, also apply to Walvis Bay and therefore to Union territory. We should like to know what the attitude of the Union Government is in respect of drastic legislation of this nature which is now also being made applicable to Union territory. This is a measure which is in conflict with our own legislation in the Union. We should like to know whether the Union Government exercised its right of veto and we should also like to know from the Minister whether he can tell us what the attitude of the Union Government is. There was another matter too which was equally important in so far as this country is concerned. I refer to the legislation passed in South-West Africa in regard to the extra tax imposed on people who are not British subjects. This tax was imposed on Germans domiciled in South-West Africa. Those people lived there before there were any British subjects in South-West Africa. The Deputy Prime Minister knows what happened in regard to these people.

The hon. member can only put a question to the Minister; he cannot enlarge on it.

Yes, I am putting a question to the Minister; but at the same time I want to draw the Minister’s attention to a South-West African Ordinance which makes Union territory subject to the legislation of South-West Africa. That Ordinance will now be applicable to Walvis Bay as well as to SouthWest Africa. Those Germans will now also if they are resident in Walvis Bay, be subject to that tax. We know that those Germans who became British subjects are now by these war measures deprived of their British citizenship. Under the South-West Africa war legislation an extra tax is imposed on Germans, while it is not imposed on other residents of that country. What is the Government’s attitude towards such utterly unfair and discriminating legislation?

They have to surrender 25 per cent. of their income.

It is a question of supreme importance to us. Those people are resident in South-West Africa; they were born before there were any Union Nationals or British subjects in that territory. They are the original European residents of South-West Africa, and now we find that they are being discriminated against in this way.

What has that to do with this Bill?

Under this ordinance it will be applied to those people if they are resident in Walvis Bay.

This Bill only deals with the question of the scope of Union Acts.

Walvis Bay is now made part of South-West Africa, and I should like to know what the Government’s attitude is towards this discriminating legislation passed by South-West Africa.

The question I want to raise in connection with Walvis Bay is whether the time has not arrived to take the whole position in connection with this place into review. I strongly want to urge the Minister of Justice to go into this matter. Remarkably enough, constitutionally it is part of the Union, and in other respects it is part of South-West Africa. With the delimitation of constituencies, however, it forms part of the Union, and we had this ridiculous state of affairs that Walvis Bay formed part of the Sea Point constituency. I think we must ask the Minister to go into this position. The other matter which I want to raise is in endorsement of what the hon. member for Waterberg (Mr. J. G. Strydom) said. We are dealing here with a simple but a very serious principle. If the principle is embodied in this legislation that Walvis Bay must become a permanent part of South-West Africa, it raises the whole question of the position of the mandated territory. The question is whether a case has been made out, and whether we must accept this Bill as an indication on the part of the Government that South-West Africa will become an integral part of the Union, or whether South-West Africa will remain merely a mandated territory. Statements have been made to the effect that South-West Africa will never be anything but an integral part of the Union. I think there is also a judgment of the court to that effect. But as far as I know, there has never been a definite statement on the part of the Government that the mandated territory of South-West Africa is part of the Union and will remain part of the Union. That statement has not been made because the whole question of the mandated territory, as laid down by the Treaty of Versailles, is in the air. If the Government can make an authoritative statement it will be easier for us to form an opinion in regard to this measure. Walvis Bay cannot for certain purposes be part of the Union, and part of South-West Africa for other purposes. The people therefore want to know what the position will be, since Walvis Bay, which forms part of the Union, is part of South-West Africa for certain purposes. Since that is the position, the people should be told whether it must be accepted that the mandated territory of South-West Africa will for all time be part of the Union. That is the point I wanted to raise, because it seems to me that this matter is not quite as simple as it looks.

Important points have been raised on the other side, but I think the hon. member for Waterberg (Mr. J. G. Strydom) and the hon. member for Moorreesburg (Mr. F. C. Erasmus) will admit that it not for me to make a general statement with reference to this Bill in regard to the points which they raised. I will, however, convey those points to my colleagues. These are important points which will have to be dealt with in the future, but that is my personal opinion.

There the Deputy-Prime Minister sits, ask him.

It has nothing to do with this Bill. This Bill only amounts to this, that although the position in the past has been that unless it is specially laid down in a Bill that it shall be applicable to Walvis Bay, it shall not be so applicable, the converse will now be the position, namely, that unless it is specially provided that it will not be applicable to Walvis Bay, it will be applicable. The important points that have been raised on the other side have nothing to do with this therefore. In regard to the ordinance in connection with the taxes in South-West Africa, the Government has no right of veto as far as that ordinance is concerned. This Bill only deals with the application of our legislation.

But that ordinance will also apply to Walvis Bay,

This Bill only relates to legislation of the Union, which is made applicable to Walvis Bay. From the beginning Walvis Bay has been administered as part of the mandated territory. In other respects we are not bringing about any change. I think the object of this Bill is clear, and I shall convey the points which have been raised to my colleagues.

Motion put and agreed to.

Bill read a second time; House to go into Committee on the Bill now.

HOUSE IN COMMITTEE:

Clauses and Title of the Bill put and agreed to.

HOUSE RESUMED :

The CHAIRMAN reported the Bill without amendment.

I move— That the Bill be now read a third time.

I object.

Third reading on 26th April.

I move—

This is a Bill which was largely drawn up in consultation with the law societies. It deals with our soldiers, with a view to assisting them in connection with the period they have to serve as articled clerks. Where the law lays down that the periods shall be five, three and two years, those periods are reduced by two years, one year, and six months. But care is also taken in this Bill to provide that it will strictly be a temporary measure. When a person is discharged from the army, he must give notice within six months that he wants to avail himself of the benefits of this Bill. If he receives his discharge outside the Union, his position is somewhat uncertain, and he therefore gets three years.

Is that not too long?

This matter was gone into in consultation with the law societies, and in their opinion it is a reasonable period, because there may be all sorts of difficulties which will prevent such a person from returning to the Union, and it may be very difficult for him to decide earlier. That is the main object of this Bill. It has already been laid down in the emergency regulations that the court will have the right to make a concession in certain circumstances. That principle is also contained in this Bill. I think it is a reasonable Bill. It has been approved by the law societies, and I shall be glad if the House will agree to pass it.

This side of the House has no objection to this Bill, because provision is being made for facilities to reduce the period of articled clerks. I think the candidates themselves will discover that it is best for them not to take advantage of this reduction, but rather to gain the experience which the ordinary Act deemed necessary. They will find that if they return and complete their articles in the minimum period, they will not be able to compete with the others who were articled for the full period. There is one aspect of this Bill which I do not like, namely, that no provision is made for students for the LL.B. degree or for the B.A. (Law) degree who want to become advocates or attorneys. If they enter for those degrees with the object of eventually becoming attorneys, they still have to be articled for two years. No provision is made for that type of man. Take a man who has already passed his examination and who is not yet articled. I think the Minister has not gone far enough in that respect, and there will be some of his friends who will hold that against him. The position in the future will be that those who remained at home and finished can complete their articles and become attorneys, while the other students did not have this opportunity. This Bill is not comprehensive enough, therefore, as far as that type of student is concerned. We are not raising any objections. I do think, however, that the period in which they have to serve their articles is being made too short, especially in the case of students with the LL.B. degree, who will be articled for six months in future instead of two years.

No, it is only being reduced by six months.

Then it means that they still have to serve a year and a half. That is correct. I understood the Minister differently. We have no objection to the Bill, although we may want to move amendments in the Committee stage to improve it.

There is a great deal in what the hon. member for Gordonia (Mr. J. H. Conradie) said. This particular matter was submitted to the Law Societies and they did not accept it, but I am prepared to discuss this matter with them again after the adjournment. It seems to me that a good case can be made out, but it is not desirable to go against the Law Societies before I have had an opportunity to discuss it with them.

Motion put and agreed to.

Bill read a second time; House to go into Committee on the Bill on 27th April.

I move as an unopposed motion—

I second.

Agreed to.

I move—

In moving the second reading of this Bill I wish to express my appreciation for the assistance the department obtained from the Law Societies and many other bodies, but more especially to the Select Committee which went very fully into this matter and, I think I can say, reached agreement on practically all points. I believe there are one or two very minor points on which there was disagreement by only one or two members, but I think I am not overstating the case when I say that this is practically an agreed measure. I do not propose to go into this matter at length. The Select Committee has brought about certain improvements. These will be fully dealt with by the Chairman of the Select Committee; but there are certain aspects of this Bill which I would like to strees. Since the coming into operation of the Magistrates’ Courts Act, Act No. 32 of 1917, at the beginning of 1918, it has been very considerably amended in six further Acts, and it was felt that the time had now come when a consolidating measure should be introduced. It was also very desirable that such an improved measure should be available in Afrikaans. That is one of the direct benefits we get in this Bill. But consolidation itself would not be sufficient. A large number of amendments have been introduced, which, I think were very necessary and which I think will very greatly assist the smooth working of this Bill and which I think will also be of great assistance to legal practitioners. Many suggestions were submitted. These were all carefully considered. Those that were acceptable have been incorporated in this Bill. One of the main features of this Bill has been the abolition of the debt recovery procedure, which had been abolished in a Bill a couple of years ago but which is confirmed by this Bill. I then gave an undertaking that a certain form of debt recovery would be introduced, and I think it is only fair that where a man incurred a debt, more especially where he is a wilful defaulter, that the commercial community of this country should have a reasonable means of recovering the debt and enforcing payment. The objection to civil imprisonment was not so much against the debt recovery machine, but the extent to which that process had been grossly abused. Costs were unnecessarily heaped up, and that is why it was felt that it should be abolished, and that is why this principle is also adopted in this Bill. But at the same time we have in this Bill incorporated machinery for recovering debts. We have allowed legitimate charges to be made, but we have taken all necessary steps to prevent an abuse of the process by the incurring of unnecessary costs in the recovery of debt. In other words, the object is this, that where the machinery for debt recovery is involved, the object must be to give the creditor the maximum amount with due regard to reasonable costs from the debtor. We have attempted to avoid the procedure whereby a debtor pays very much more than his original debt and his creditor still receives nothing. That is an abuse we are guarding against in this Bill. It is in the interests of the legal profession; it is in the interests of the commercial community and in the interests of the debtors themselves that as large an amount as possible of the recovered debt be paid to the creditors. We have also taken steps to avoid abuse by a cession of those debts; and I think without going into details I can say that a process has been brought about in this Bill which will meet the legitimate requirements of commerce without acting unduly harshly on the debtor. We have also tried to differentiate between the honest debtor who wants to pay but who is in the unfortunate position that he cannot pay, and the dishonest debtor who can pay but does not want to pay. Every opportunity has been given to the honest debtor to get an extension of time and a reasonable opportunity to pay 1rs debts. On the other hand we felt that where a man can pay and where he legitimated incurs a debt, and he wilfully defaults, he should not receive sympathv from anybody. But the difficulty arises in dealing with him adequately that any process which would be introduced to meet his case, might very easily be translated to the ordinary bona fide debtor, so that where there has been a question of doubt we have given it in favour of the ordinary debtor but I think we can say that the scheme we have in this Bill will sufficiently meet the demands of commerce for the due recovery of their debts. Then there are certain penal clauses with which I need not deal in detail. The Select Committee has dealt with them and most of them have been eliminated. I do not think it is necessary for me to go into details of the debt recovery procedure. This Act has been in operation for a long time; I have merely dealt with the outstanding changes. The details will be dealt with in the Committee stage. As far as the work of the Select Committee is concerned, I will leave it to the Chairman of the Select Committee to tell the House their reasons for bringing about these amendments.

We wish to express our appreciation to the hon. Minister that he has been so quick in following up an undertaking which he gave about two years ago when the provisions for the civil imprisonment of a debtor were virtually abolished. During the debates which took place at that time, the hon. Minister gave this House an undertaking that new machinery would be created to make the recovery of debt possible, because, as hon. members know, when the provisions of the civil imprisonment procedure were swept away, it become virtually impossible to recover debts from a person who has no attachable assets. We are therefor grateful to the Minister because we feel that in the interests of commercial morality, a debt which has been deliberately incurred should be honourably discharged, and where a man takes subterfuge in the benevolent provisions of the law in order to avoid his obligations, a change should be brought about in order to call him to book and to make him honour his obligations. As far as it is practicable, the lacuna which was created when civil imprisonment procedure was swept away, has been filled by the provisions of this Bill as it emerged from the Select Committee. It would have been possible for the hon. Minister to have effected the necessary improvements by way of amendments. But we are very grateful indeed that he has not resorted to more patchwork. It is already difficult enough to find our statute law today—I will deal with our common law in a moment—and it presents a matter of considerable difficulty even to the trained legal mind to find our statute law today. I would in all modesty commend the example which the Minister has set in this case to other Ministers, that wherever possible a new Act should be introduced, and the expedient of introducing amending legislation should be done away with as far as practicable. It is often well nigh impossible to know exactly what the law is because it is so easy to miss a little amendment here and a little alteration there. We are also very glad that this new Bill which has been introduced will bring us into line with our accepted modern practice of recognising Afrikaans as one of the official languages. As we know, when this original Act was passed in 1917, Netherlands was the second or rather one of the official languages. Afrikaans had not yet come into its own; it was then in its infancy, but here we now have a measure which will appear on our statute book in Afrikaans as one of our official languages, and for that we are extremely grateful. In dealing with this Bill one cannot but think of the magistrates who are called upon primarily and principally to administer the Act. I do not think that this House in particular and the country in general realises what a big debt of gratitude we owe to the magistrates. The magistrates are powers unto themselves. They do a tremendous amount for the good of this country, and I do think that when our social history is written, the part which our magistrates have played in building and influencing our South African nationhood will be fully acknowledged. Our Magistrates’ Courts system is an indigenous system, indigenous to the soil of South Africa, something which has sprung from South Africa, and we are very proud of the fact that the majority of those posts are filled by South African born and bred. They are a source of pride to our Civil Service and to the legal profession, and in this debate we wish to take advantage of the opportunity to pay a humble tribute to those men who have done so much to weave into the social fabric of South Africa the rules of fair play within the limits of their powers. I do not think that there is any facet of human endeavour on which the activities of magistrates do not impinge. Here they send one man to gaol; there they confine another man to the mental asylum; here they confine one man to the leprosy asylum; there they marry a couple. They cannot dissolve a marriage but they can tie the matrimonial knot. As one magistrate told a young couple: “You two want to marry. Do you realise that marriage is an institution, especially for those who want to live in an institution”! The magistrate is our chief tax collector. He is also the local controller, and let me again say that we owe a deep debt of gratitude to the magistrates of the Union, of whatever political complexion they may be and to whatever political party they owe adherence. They have helped us in no inconsiderable way in these difficult times to maintain order and peace and to stop acts of violence and to forestall acts of sabotage, with which other nations of the world are more familiar than we are in the Union. But that does not mean to say that all the magistrates do is necessarily correct. It reminds me of a case which was argued in the Transvaal Provincial Division of the Supreme Court. A leading barrister was arguing an appeal on a question of fact. After he had done his best the Judge-President said to him: “Mr. So-and-So, do you realise that what you want us to do is to upset a finding of fact? After all we did not have an opportunity of seeing the witnesses. We did not hear their testimony; we cannot very well judge of their credibility. Surely the magistrate who saw the witnesses should be in a better position to judge.” For a moment the advocate was nonplussed. Then he said: “Milord, that may be so; we have not had an opportunity of seeing the witnesses but has your Lordship seen the magistrate?” Well, with those rare exceptions we pay our meed of praise, and ungrudgingly so, to the work that the magistrates have done in the interests of South Africa. Their task is by no means an enviable one. They have to administer the law. But what is the law that they have to administer, and where can they find that law? We have provincial divisions of our superior courts and our Appellate Division, yet our magistrates because of their number and because of the numerous cases that they handle, certainly deal with more litigation than all the superior courts put together. It is therefore just as necessary for a magistrate to know where the law is, to know where to find it, to understand it when he does find it and to know how to apply it. I feel that we should make the post of magistrate as attractive and remunerative as possible so that we can attract the very best brains to the Service, because the magistrate has often to adjudicate upon a point of law as abstruse and as difficult as any point which comes before the Appellate Division for adjudication. What law library has he at his command, and where can he find the law? If I had the time at my disposal and if the opportunity were there, I would like to deal with this matter of simplification, clarification, re-statement and eventual codification of our law very much more fully and though it may not be strictly within the purview of the legislation we are about to pass, yet I feel that cursory word about that important subject would not be out of place. The need for a re-statement, a simplification, a clarification of our law is imperative. It has been so for many years. Our system of law is founded upon the Roman Dutch system, and as far as the Roman Dutch law is concerned, 250 years ago the jurists of the Netherlands felt that their laws were antiquated and that their laws did not represent the state of affairs as it existed in Holland.

I hope the hon. member will not proceed too far along those lines.

No, Sir, I shall not do so. Yet we in this country still have to refer to Pandects and Comments written hundreds of years ago. Let me quote one instance to show the difficulties involved. I think the case of O’Callaghan versus Chaplain is a classical example. In that case one man’s dog bit another. The point which the court had to decide was whether a certain form of action taken from the old Roman Law was still in force in South Africa. The original claim was for £30 damages. The case went from the magistrate’s court to the Supreme Court, from the Supreme Court to the Appellate Division. The Appellate Division after nearly three years and the expenditure of about £1,000 in costs eventually came to the conclusion that in the circumstances the owner of a dog was liable. The judgment of the Appellate Division could be stated in three lines but it took the poor unfortunate private litigant three years of anxiety and at a cost of about £1,000 to have that issue decided. I feel that the time has arrived when the Government should sponsor a movement for the re-statement of our law with a view to eventual codification. A special resolution to this effect was passed by the law societies. I know that the movement has the support of the Rt. Hon. the Prime Minister, of our judges of appeal and other hon. judges too, and I would therefore be very grateful if the Minister could give us an indication during his reply that he is in sympathy with such a movement, and that eventually steps will be taken in that direction. We have in the army many brilliant young advocates who have perhaps lost their practices, and they could form the nucleus to start this work. I feel that the Minister could employ these advocates to start the ball rolling, and we shall eventually achieve something for which we shall be extremely grateful. If Napoleon whilst waging wars could find time to codify the laws of France, I feel that there is no reason why we cannot at least make a start now. I now come back to the subject of the Magistrates’ Courts Bill. I want to thank the Minister for publishing this measure several months ahead. That has given the country an opportunity to study its provisions. We have had comments and criticisms from all parties and all representative bodies who are interested in the subject matter of this Bill. It has therefore been possible to consider constructive criticism from all sides of the country. The law societies, commercial community, the building societies, the labour councils and others have had an opportunity of placing their views before the Select Committee and of criticising the provisions of this measure where they felt that proper provision has not been made to meet some particular case. I feel that the Select Committee has given them a patient hearing and that as far as it has been practicable we have met all their difficulties. The labour movement, for example, has presented their difficulties; but I feel that most of these difficulties were founded upon doubts created by the old civil imprisonment system. I feel that with the abolition of civil imprisonment procedure most of their difficulties should likewise disappear. Hon. members will see from the schedule that what remains of the civil imprisonment procedure will be swept away so that with the passage of this legislation all the abuse of the civil imprisonment system—and I do not doubt that there were glaring abuses—will be likewise swept away and the case of labour will be fully met. They should have no qualms about giving this measure their full and unstinted support. Though primarily the object of introducing this Bill is to create new machinery for debt recovery there are certain provisions which have been introduced and which are all to the good. I would like the House to appreciate that in this matter the debtor has been dealt with very kindly and very benevolently. An attempt has been made—and I feel not without a measure of success—of simplifying and cheapening access to our courts. There has always been criticism that our courts are inaccessible, but let me say here and now that the legal practitioners as we know them have their doors wide open, and I know of very few legal practitioners who would turn away a man simply because he has no money. They are all prepared to listen to him. Let me also say before I deal specifically with the provisions of the Bill that there is already a proposal by the Law Society to the Minister of Justice for the establishment of a Legal Aid Bureau, where people with slender means or people with no means at all can obtain legal assistance, not only in criminal cases but also in civil cases. All the legal profession asks for is that their position shall be entrenched in statutory enactments and that certain safeguards shall be vouchsafed. The profession wants to meet the public; the profession wants the public to feel that the profession is there as a medium of introducing the public to the courts, so that they can obtain redress for whatever wrong they feel they have suffered. Here a further attempt has been made to clarify and simplify the position, and though the provisions of this Bill as it is now before the House will entail a substantial sacrifice on the part of the legal profession, the profession as such is glad to make that sacrifice as an earnest of its contribution towards a better society. We feel that work which otherwise has been regarded as the monopoly of the legal profession is now being taken away from them, but they will accept the position without murmur. In fact they welcome the provisions of this Bill, and they welcome the opportunity of showing the public that they want to assist wherever possible in expediting and cheapening litigation and making it as effective as possible. I now want to deal with the chief provisions of this Bill. We have to start with Sections 41 and 42 where a simplified procedure is laid down for the joinder of plaintiffs and the joinder of defendants. The whole object of this Bill is to cut out unnecessary litigation and to achieve the object of arriving at a final conclusion as expeditiously and as cheaply as possible. Here we have one instance where the procedure is being simplified. There is another provision in Section 45 which makes for simplification, where jurisdiction by consent of parties is dealt with. The House knows that in the past there were serious abuses with regard to consents to jurisdiction. Here it is provided that the court shall have jurisdiction to determine any action or proceeding which would otherwise be beyond its jurisdiction, if the parties consent thereto in writing. Under the new provisions it is, however, impossible for a defendant to consent in advance to the jurisdiction of a magistrate’s court. He can only give an ad hoc consent to the particular litigation which is contemplated at the time. That is a very real and very salutary safeguard. Then I come to Section 48. When once judgment has been obtained against a man he can invoke the provision of Section 48 (e) under which suspension of execution against his property can be ordered by the court. As long as the debtor wants to pay and he furnishes proof of his goodwill and his honesty, the courts will protect him. Under Section 48 there can be a suspension of execution against any or all of his property as long as he makes a reasonable effort to pay, and I think the House will agree that that is a substantial contribution towards the debtor’s security. But take Section 54. Very often there are very complicated legal issues involved and the pleadings before the court are very complicated. Under this section any party to the proceedings or the court can of its own motion call the parties or their representatives together in chambers, where they can consider the simplification of the issues, the desirability of amending the pleadings, the possibility of obtaining admissions of fact or of documents with a view to avoiding unnecessary proceedings. That will do away with a lot of unnecessary waste of time and money and it will make, I submit, for a simplified and a very much more effective procedure. Then we have instituted a chapter so as to enable the recovery of small debts in a very informal way. It is not necessary for the creditor—and when we talk about creditors we do not always mean a man of means; it very often happens that the creditor is a man who has very much less than the debtor; very often it is a poor creditor who is trying to recover from a rich debtor—here he can simply go along to the clerk of the court where the sum involved does not exceed £10, and the clerk of the court will issue a summons. The case is summarily disposed of—and I hope with justice and satisfaction to both parties. Then I come to the heart of the Bill. These provisions are embodied in Section 65, 72 up to 74. Under Section 65, if a man feels that a debtor owes him money and that he does not want to pay, all he need do is to ask the court to institute an enquiry into the financial position of the debtor. If the debtor comes along and says: “I admit I owe you the money; I cannot pay you in cash, but this is my financial position; I am prepared to make you a reasonable offer,” immediately all further proceedings against him are suspended and he enjoys the protection of this Act without incurring any disabilities at all. Section 65 is really the power house which lends motive power to all the other provisions of the Bill. For the enquiry into the financial position of the debtor is of the utmost importance and forms the basis upon which future action depends. If after enquiry it is found that the man cannot pay, well that is the end of it, but if the magistrate finds that a man can pay but won’t pay, then he can order him to do so. The debtor can, if he is honest and lays all his cards on the table, make a reasonable offer, and there the matter is at an end. Whether the matter goes further or not depends upon the attitude of the debtor, and I would like to stress this because there is so much misunderstanding outside where the public thinks that all we are out to do is to protect the creditor and to harass an already burdened debtor still further. That is far from the case. On the contrary, the position is that if we have erred in this Bill at all, we have erred on the side of leniency and in favour of the honest debtor. If a man is dishonest, we must employ all the means at our disposal to expose his dishonesty and to make him discharge his obligations. Section 65 is there for the protection of the honest debtor. It is also there for the protection of the creditor who has to deal with a dishoenst man who can but who will not pay. Then we come to Section 67. The House will see there that the value of the property now to be exempted from execution has been considerably raised. There can be no question of selling the man’s bedding and wearing apparel and denuding his home by selling all his furniture, of selling his tools and implements of trade, his professional books or in the case of a farmer, his stock, tools and agricultural implements. He can receive adequate protection, and he can have that protection doubled as long as he makes reasonable efforts towards payment. Now I come to the garnishee proceedings. As the House may know garnishee is a process which can be employed to attach a debt due by a third party to a debtor to compel such third party to pay such debt to the judgment creditor on account of the debt due by the judgment debtor. The old garnishee proceedings such as they are, can often lead to abuse, because you cannot garnishee a debt until it was actually due, with the result that in the case of obligations falling due on different specified future dates you might have to have, say, ten garnishee proceedings, each costing a few pounds, so that costs were piled up unnecessarily, and unfortunately most of those costs were lost to the creditor because it was very often impossible to catch the debtor at the psyschological moment. The new garnishee procedure which we have laid down in this Bill will do away with all that. It will be impossible to pile up costs. You will only have one set of costs, and one set of costs will put a period to all further legal proceedings. Under Section 72, if a man has a judgment against a debtor he makes application to the court; the court holds an enquiry under Section 65 into the financial position of the debtor, and the court would then say to the debtor: “You have an income of £50 a month; according to your standard of living your expenses can be no more than £45 a month. It is therefore possible for you to pay £5 a month for distribution amongst your creditors.” And the court will then make an order in terms of Sections 72 and 73. These provisions give the poor man all the protection that he could possibly have under a sequestration order, but it has this added advantage; it incurs no disability. There are no heavy costs of sequestration proceedings; it is never necessary for him formally to rehabilitate himself. There is nothing that worries a man more than debt. The crushing burden of debt has driven many a man to suicide. Here is a sanctuary open to him. He can go along to court and say: “I have ten creditors; I want to pay them but I cannot pay in cash. This is my financial position, and these are the debts I owe.” The court can then make an order for the payment of instalments. Once an order is made and that order provides for periodical payments, the magistrate may suspend execution against that debtor either wholly or in part. The power we are giving a magistrate will enable him, even where the debtor has three or four thousand pounds debt to make a receiving order. He can appoint an administrator, and that puts an end to all legal proceedings against the debtor. He then knows that he has to pay a fixed amount per month, and as far as the rest is concerned, no one can sue him. I would like to know what can be fairer and more equitable than that? We have, however, a safeguard that where a man has perhaps been guilty of fraudulent antecedent transactions, it is open to a creditor still to invoke the provisions of the insolvency law. The debtor can under those circumstances still be sequestrated, and his antecedent transactions taken into consideration, and any person who has then helped the debtor in any way to do away with his assets in order to defraud his creditors, can be brought within the purview of the Insolvency Act. We have a double safeguard there. Section 72 is complementary to Section 48. Section 74 gives us the administration order, and while that administration order is of effect, no one else is allowed to give the debtor credit in this sense, that anyone who knowing that there is a receiving order against this debtor, gives him credit, does so on his own responsibility. He is debarred from recovering the money unless he can satisfy the court that the money advanced, the goods supplied or services rendered were urgently required for the preservation of the health or the property of the debtor or his dependants. Take the case of a man who gives a debtor food, or the case of a doctor who supplies him with medical services. They can come along, and if they satisfy the court that those goods or those services were necessary for the protection of the life or for the protection of the property of the debtor, they can be included in the receiving order, and share along with the other creditors. I feel that an honest attempt has been made here and I stress again, in all modesty, with a marked measure of success, to meet the position and to make debt recovery as expeditious and as satisfactory as possible. It has been said that no amount of mal-administration can do as much to make a nation wretched as the constant endeavour of every individual to ameliorate his own position can do to make that nation prosperous. Here we want to give the South Africans an opportunity to honour their obligations, an opportunity of paying their debts, an opportunity of retaining their independence, and an opportunity of retaining their self-respect. We say that the character of the individual sets the standard of the character of a nation, and here the man has an opportunity of discharging his obligations, of having the satisfaction that he has paid his debt, and like the Village Blacksmith of saying: “Now I do not owe anyone; I can look the whole world in the face.” I feel that this measure will have the suport of members on all sides of the House and of the country, and I have no hesitation in commending its acceptance to the House.

We on this side of the House want to thank the Minister for introducing this Bill, which should have been introduced earlier. I think I would be neglecting my duty if I did not express our gratitude, especially the gratitude of the Select Committe, for the able manner in which members of the Department of Justice assisted us in connection with the drafting of the Bill and the necessary amendments. I think I should also make special reference to Mr. Roberts. He must have studied this Bill for weeks and months; he had to study the laws of other countries in order to ensure that we introduce a Bill of which we can be proud. Our aim was to introduce a Bill which would result in as little money as possible being wasted by the public on litigation. I want to thank Mr. Roberts and the official who assisted him. I think one might almost say that Mr. Roberts is the father of this Bill. I do not want to deal with the points which were dealt with by the hon. member for Ermelo (Mr. Jackson). He put the whole position clearly. I just want to mention a few things in order to indicate that the Bill which is now before us contains great improvements. That is the unanimous verdict of the Select Committee. We heard a great deal of evidence, and many memoranda were submitted to us, and after considering everything I think we can say that everyone was satisfised with the provisions contained in this Bill. Take, for example, one case which arises fairly often. It often happens that a summons has to be served on a person, but unfortunately the person concerned is resident in another district. The messenger of that particuar district who may live only twenty miles away from him, could not serve the summons under the old Act, because the man was resident in another district. The summons then has to go to the messenger of the other district, and he may have to travel 90 miles in order to serve the summons, with the result that unnecessary costs are incurred. We have now altered the law to read that the cheapest method must be adopted, in order to keep the costs as low as possible. Take another case, the sale of land on which there is a mortgage bond. In the past the position was that if the land had to be sold one had to go to the Supreme Court to obtain permission to sell it. In future, however, provided you get the judgment of the court and it falls within the jurisdiction of the court, you will be allowed to sell, but if there is a bond on the land, it must fetch at least the price of the bond, otherwise it cannot be sold except with the consent of the mortgagor. As a result of that people were involved in unnecessary expenses. In that respect, too, we have brought about a change. Another case which often arose in the past was that if you had an attorney or an agent who wanted to pile up costs, he would make the most frivolous objections to the summons. One cannot get away from there, because under the Act he had the right to object. Once a case has been brought before the court and a summons has been served, the magistrate even before hearing the case, may see whether there are certain things in connection with which the two parties are in agreement. There are frequently certain points which are admitted. Then when the case comes before the court, there only remain a few points to be decided, and one does not require any evidence in connection with points in regard to which both parties have agreed. Then it is only necessary to hear the case in court as far as the points at issue are concerned, and to give judgment thereon. In all those cases our object was to keep costs as low as possible. There is another improvement in this Bill of which, I think, we can be proud, and that is the lawful recognition of Afrikaans. In the past it frequently happened that when a person gave evidence in Afrikaans, the evidence was taken down in English. We have felt that that is not the correct procedure. We know that statements which are made in Afrikaans when reduced to writing in the other language, have not got the same effect. We wanted the evidence to be taken down in the language in which is was given, and if the magistrate—there are very few such cases—cannot take the evidence down in the language in which it is given, he can call in a clerk to write it down in the language which is used. That provision has now been incorporated in the Bill. The hon. member for Ermelo (Mr. Jackson) explained the position in connection with civil imprisonment. We all agreed that the existing position was not satisfactory. Unfortunately there were people of questionable character who made use of the opportunity to make as much money as possible out of civil imprisonment. We were all agreed that that should be eliminated, but at the same time, as the Minister said at the time, it was necessary to put something in its place where a person who owes money does not want to pay it. I had the case of a young man who was in receipt of a salary of £375 per annum. He was in the employ of the State. He borrowed £90 from a poor widow and we could not get it out of him. Under the old system one only had the right to attach salaries when they were payable. When is a man’s salary payable? It may be argued that salary is only payable at 12 o’clock on the night of the 31st day of May or the 30th day of April. The practice is, however, to pay the people in the morning of the last day of the month, or perhaps even the previous day, and when one wants to attach the money, one in faced with the fact that it was paid to him in the morning. Under this Bill other provision is being made and better protection generally is being given. It will prevent people from giving credit so readily. The magistrate will be able to go into the position and decide what a man can pay, and once the order has been given the creditor will not be able to go on with further actions. That is eliminated, and it is a big improvement. There are only one or two things which the Minister should consider incorporating in the Bill. The first is whether the time has not arrived, and I think especially in the platteland districts, to have magistrates who will travel about in the various districts for the hearing of cases. In many cases one finds that only one or two decided cases come before a magistrate in the course of a year. One cannot blame the magistrate if his knowledge of law rusts a little. When I started to practise 30 or 35 years ago, I was proud to keep my legal knowledge up to the mark, and to keep myself informed of all the decided cases in the Supreme Court. In those days we had ten or twelve decided cases in the course of a year. Today the position is that we have not had any for the past five years. Can it be held against me if I do not study the law as well as I did in the past and if I am not acquainted with all the decided cases? I think it will be a good thing if we have a magistrate who goes from district to district only for the purpose of hearing cases. You then get a man whose knowledge is up to date, to decide cases. You could then call the other man in the district the administrator, or commissioner or anything you liked. Then I think it is unreasonable that the magistrate who sits on the Bench and tries a case, should have to write down the evidence from A to Z. He often has to take down 50 or 100 pages of evidence. Are we not asking too much of these people? Does the Minister not think that it is the duty of the department at least to make available a male or female shorthand writer for the magistrate? I think we are overtaxing the magistrate. I shall be glad if the Minister will consider these two points. For the rest we support the Bill.

I think the Minister is to be congratulated on having got this Bill so far, because after the number of years the Magistrate’s Court Act has been in operation the time has arrived not only for a consolidating Act, but for a measure to simplify the procedure and, also to make provisions to prevent a debtor from escaping his liabilities in consequence of the virtual abolition of civil imprisonment, and I think the Minister in this Bill has done so very effectively. I have really risen to ask the Minister whether he would consider an amendment to the provision of Chapter 2 dealing with judicial officers. Under the provisions of that chapter judicial officers can only be appointed from members of the Civil Service, and it is a question whether a distinction should not be made between magistrates who carry out administrative duties and those who carry out judicial duties. The Minister is confined, in appointing magistrates, to people in the Public Service, and I think that in large areas he should be enabled to appoint persons from the Bar, or if he sees fit, even from the Side Bar, to carry out the judicial functions of a magistrate. Many magistrates have almost exclusively judicial duties, and on the other hand their functions in a good many areas are almost exclusively confined to administrative functions, and judicial duties form a very small part of the functions they are called upon to perform. And it seems to me where their duties are excusively judicial, where the area is such that the magistrate has to confine himself almost entirely to deciding legal disputes, it would be a good thing for the Minister to have the right to appoint men from the Bar. And I would ask him in those circumstances to consider the question whether an amendment should not be allowed so that notwithstanding the provisions of Chapter 2 he should be entitled to separate these duties and appoint men from the Bar to carry out these functions. The magistrates have a high jurisdiction—a higher jurisdiction than a County Court Judge in England, and in England County Court Judges are appointed from senior member of the Bar. I am sure it would be to the benefit of the country as a whole if appointments of a similar nature were made to the magisterial Bench, and it would be a means of providing an opportunity for the appointment of men who, in the ordinary course, would probably spend their lives at the Bar without being able to look forward to some judicial appointment.

I have not studied this Bill very carefully, but while looking through it, I came to Clause 29 where I noticed that under Sub-section (d) the magistrate’s jurisdiction was being increased in respect of “actions on a liquid document or a mortgage in respect of the claim of an amount not exceeding £500.” That means that these cases which in the past used to be taken to the higher courts—that is to say the so-called provisional judgment cases will now come within the jurisdiction of the magistrate up to an amount of £500. I am raising this question because I feel that we are doing someting here which is not in the interests of the Bar. The Minister and others who have something to do with legal practice, know that provisional judgment cases usually known as guinea pigs, keep many young barristers alive. The Minister perhaps has had better chances in life but generally speaking the struggle of the young barrister who is called to the Bar for the first time, is a very hard one, and these barristers are kept going mainly by small actions such as these provisional judgment cases. The Bar plays a very important part in this country and it is in the country’s interests that we should have the necessary recruits for our Bar. I think that the Minister knows and the House knows that there is an ever-increasing tendency on the part of young men who have taken their LL.B. not to go to the Bar but to take up other positions. A great many of them go to the Side Bar. It is also a well-known fact that the work of the Bar is steadily being reduced. There is a tendency on the part of people to settle their cases and there is also a tendency on the part of the Bench— I am not saying this in a critical sense—to interfere and to settle cases. It may be a good thing for the parties in the way of reducing costs, but the income of the young advocate is also reduced very considerably. And now these small cases, which do not involve a great deal of cost, will also be taken away from the Bar. An advocate in cases of that kind only gets £1 1s. I don’t know how much the attorney in Cape Town or in the rural towns gets, but the total amount involved cannot be very considerable. Why now deprive the young barrister of this little ewe lamb and do something which is not in the interests of our Bar. We have always been proud of our South African Bar, and I think that everybody will admit that generally speaking the standing of the Bar has always been very high, and the standing of our judiciary has also been very high, and we want to encourage young men to go to the Bar. But here we have a provision in this Bill which is going to discourage them. I hope that aspect will be taken into account and that the amount will be reduced to £200.

Business suspended at 1.0 p.m. and resumed at 2.20 p.m.

I would like to congratulate the Minister of Justice on the procedure which he followed in connection with this Bill, namely, to refer it to a Select Committee which can thoroughly go into the matter. I believe that the Select Committee has produced a Bill which will satisfy everybody. The Committee has made an earnest attempt to keep the cost of court cases as low as possible for the poor man. The Bill, moreover, contains a new principle, which is a further attempt to put matters right. Schemes have been devised to compel dishonest debtors to pay their debt. Furthermore, provision has been made that when there is no dispute the magistrate will have increased jurisdiction and every attempt has been made to keep the costs as low as possible. The draftsman of the Bill, who is a Government servant, has also made earnest attempts to consult all persons who may be affected by the Bill. I think that he was in a position to satisfy everybody. There is, however, another aspect of the Bill about which I am concerned in regard to procedure, and I feel it is my duty to say something about it. I have had many years of experience in my practice before magistrates of all kinds, all ages, and all ranks. I feel that there is a weakness in regard to the procedure of appointing magistrates. A young man joins the service after having matriculated and after having passed the Civil Service Examination. If he has any common sense, he immediately starts studying law and if he works hard enough he can learn sufficent within three or six months to pass his examination. Perahps he has not sufficient money to buy books and then he gets his notes from some university or other. He studies them and he is able to answer the questions after three or six months. He now becomes a clerk in the service for about ten years before he is admitted to the bench. During that time he is busy completing forms and cashing money and doing all kinds of things which actually have nothing to do with law. He has no experience of work on the bench, even if he should be clerk of the Court for a little while. If he is not a student and does not continue his law studies he comes to the bench after ten years without having the slightest knowledge of legal matters. This is the position at present. In 1917 a serious attempt was made to put people who were advocates of a certain standing and experience on the bench. The civil service, however, raised so many objections against it that they abandoned the attempt. In this Bill an attempt has been made to appoint such people temporarily. The Minister of Justice is entitled to appoint such a person temporarily as a magistrate; apparently when a difficult case comes up, he can appoint an advocate of ten or twelve years’ experience. I still feel, however, that there is something lacking here. It has been said that this is a matter for the department and that they have to see that the people who will one day become magistrates continue to study law and do work in connection therewith, so that when they come to the bench they will be able to perform the work of a magistrate. At the moment people come to the bench without having any experience to sift facts. A magistrate or a judge should be able to elicit the truth from the witness who appears before him. It is the work of the attorney, the advocate, the magistrate and the judge to separate the chaff from the wheat. We can imagine what the position must be of the magistrate who comes to the bench without any experience. Some of them have told me personally that when they heard their first case, they had not the slightest idea of legal matters. One of them told me that as recently as six months ago, and he added that he went back to the place where he heard his first case in order to see what his first case looked like. This is a weakness in our judical system as far as magistrates are concerned. The department ought to consider this matter in order to see whether it is not possible to give the clerks who ultimately will become magistrates, work which will keep them employed on legal matters so that they can study the law and will be able to arrive at a judgment when they come to the bench. This is the only weakness I can find in the Bill. Then there is the question of the small debt collection. We formerly had such a system in the Cape Province and I believe also in the Transvaal, but it actually was never applied. It was abused and it was withdrawn. Now, in this Bill a cheap procedure is proposed to collect small amounts. This is a sincere attempt to make the cost of court cases as low as possible so that every person can obtain his rights. For that reason I am prepared to vote in favour of the Bill so that it may be placed on the Statute Book as soon as possible.

So far only our lawyers have taken part in the debate. One feels that they consider that they are the only people entitled to say something about our magistrates. I want to emphasise that the public is just as much entitled to say something about this question. I want to discuss the position of our magistrates from the point of view of the public. I feel that justice is not being done to our magistrates in connection with their work. This class of officials is terribly overloaded with work. I am thinking for instance of the magistrate at Springbok. He has no less than six reserves coming within his jurisdiction. Then there is Port Nolloth, Alexander Bay, Garies, and Onderklip Bay which also fall under him and where a large number of cases are concentrated. The magistrate has to deal with all these cases. I have not the exact figures here, but there is an enormous num ber of policemen at Alexander Bay and all along the coast there. All these cases have to be dealt with by one man. We do not want to have a magistrate solely as a kind of criminal judge. We also need him as a friend. He occupies a special position as the father of the district. Our magistrates have no time at all to devote any attention to social matters in their districts. The magistrate has to work the whole? What does our magistrate mean to us. We do not have him as a friend, as the friendly person which we would like to have in our magistrate. He is overworked. The district does not benefit from his gifts. It cannot obtain his advice and similar things, all because he is so overworked and can devote no time to the public.

How many hours a day does he work?

I would have replied to that question if the hon. member were a stranger in South Africa, but he knows quite well what the position in this country is. I appeal to the Minister to give consideration to the magistrates. They have to take notes and write down all cases. Í have often sat and listened to perfectly simple, small cases. They take up an enormous amount of time and the magistrate has to take down and write out everything. If a shorthand writer is available he can deal with double the number of cases. I want to ask the Minister to provide magistrates with shorthand writers so that they may do their work more expeditiously. I welcome the fact that the Afrikaans language is coming into its own in our courts through this legislation. This is a long-felt need which is now being fulfilled. As far as civil imprisonment is concerned, I hope that it has now been done away with for good. That provision is being welcomed throughout the country. In general, the country will be grateful to the Minister for this legislation. Furthermore there is the welcome fact that summons will now be served along the shortest route. We have felt for a long time that it is wrong that summons has to be issued through a specific office. A man may live perhaps 10 miles from a magistrate’s office, but 200 miles from the magistrate’s office of his district. In such a case all the expense had to be incurred to issue the summons through the office which was furthest away from him. The additional cost had then to be paid by the plaintiff. This is a step in the right direction and will decrease costs. I want to reiterate my plea to relieve the magistrates so that they may be able to devote more time to social conditions in their districts.

There is only one aspect to which I should like to refer and that is the question of costs. One of the aims of this Bill is, of course, to attempt to keep the costs down as much as possible, and I think that the Bill succeeds in that in many respects, but I still feel that something more could be done in regard to the serving of documents and processes. Take for instance Clause 65 as well as other clauses. Provision is made therein for processes to be served by messengers of the court. If one takes an extensive district such as mine, parts of which are 200 miles away from the magistrate’s court, and the messenger of the court has to travel 400 miles every time he serves a summons, one may find afterwards that the costs for this service may be three times as much as the charges of the attorney or even as the original debts. I think the Minister should devise a scheme either by making use of the police stationed in the remote parts or by the appointment of assistant messengers to decrease costs. I have calculated that a messenger has to travel three times in connection with a case, first of all for the summons, secondly for the notice, and thirdly with the writ in execution. And if the person concerned lives 200 miles away from the magistrate’s office, it may happen in such a case that the messengers’ expenses amount to £40. That all falls on the poor defendant and in many cases the costs exceed the original claim. I hope that the Minister will be able to devise a scheme to simplify the procedure. Clause 65 (3) makes provision for the notice also to be served in person. In this way the messenger has to travel the distance three times and costs become excessive.

We had expected that the Minister would propose more considerable changes in this Bill, especially in regard to magistrates. We find that a magistrate today has to fulfil two functions. He is a commissioner and he is a magistrate. Those two positions ought to be separated. The magistrate of today is saddled every year with new legislation and new duties, and more and more work is placed on their shoulders, and the more work that is placed on magistrates, the less they are able to keep in touch with the development of law. They have no time to keep abreast of new judgments arrived at from time to time and to be conversant with such judgments. We therefore expected that the Minister would introduce more far-reaching amendments by means of this Bill. We expected that he would separate the two functions of magistrates. If he did not want to do this at all, he still could have made some arrangement that certain magistrates would get jurisdiction up to £20 or £50 as far as civil work is concerned, but he could have divided the country into areas, fiscal districts where one would have a sort of senior magistrate, who would go from place to place to deal with certain matters—a kind of. County Court Judge with jurisdiction up to £500. That would have worked better than the present system. I consider that if that happened there would also be far fewer appeals to the Supreme Court. It is generally felt in the country that a magistrate cannot do justice to cases because he is not sufficiently experienced or does not get the opportunity to become sufficiently experienced. That is why we on this side feel that it is a pity that the Minister did not follow the suggestion made in the past. I think that the Minister’s predecessor, the former member for Gezina (Mr. Pirow), already thought in that direction and it would have been well if he had consulted the former Minister of Justice. Probably the Department has also gone into the matter. It is generally felt by the public and the law practitioners that there is need for such a court with increased jurisdiction and bigger areas. I am informed that the hon. member for Beaufort West has already spoken about this matter in connection with Clause 29 (d), where the jurisdiction is increased to £500. I trust that the Minister will abandon this in Committee. He is going to create a very dangerous precedent. In addition, it will have the result that young ambitious men will be kept out of the Bar. There are some of the ambitious young men who consider that they will eventually be employed in the judicature, but through this provision the Minister deprives them of the chance of making a living. Then there is another matter in connection with the Bar which has not been taken into consideration to the extent that it should have been. There are, for instance, the Rules of the Court. They are drawn up by a certain board, as provided here, but no provision is made that advocates shall serve on such a board, and as the hon. member is aware, particularly in the cities there are many occasions when the assistance of the Bar is called in to undertake cases in a magistrate’s court, and they are therefore also interested parties in this regard. Their interests are also concerned in the procedure which is laid down, just as much as the interests of the attorneys. I hope that the Minister will make a change in this respect too. Then I wish to associate myself with the remarks of the hon. member for Namaqualand (Lt.-Col. Booysen). Particularly in the big cities it is a great handicap to act in a case where the magistrate must write down everything. You yourself, as advocate, know how upsetting it is for an advocate, when he is cross-examining a witness and when he is perhaps on the point of obtaining an answer which he requires, if the magistrate interrups and says: “Wait a minute, I first want to write that down.” That gives the witness another chance to think. I think that the Minister knows from experience how desirable it is that the advocate should not be hindered in his cross-examination. Therefore we consider that the Minister should make provision, particularly in the big cities or where important cases are conducted which may last for days, that there should be shorthand-writers in the magistrate’s courts. I know that especially in the Cape we often have to deal with cases in connection with trekpaths, where it must be proved whether there is prescription, etc. Witnesses are called and it sometimes takes days and days, and then everything must be written down. If the department of the Minister cannot make provision in all cases, then at least provision could be made for cases which will last a long time, and most probably it would also pay the litigants to have a shorthand-writer. Generally speaking, we have no objection against the Bill, but I hope that the Minister will be sufficiently ambitious to follow up the suggestions which we have made here. He will possibly get the opportunity again to introduce amendments, and I trust that he will then make the necessary changes so that especially as far as civil work in the magistrates’ courts is concerned, it will be possible to perform that work properly.

I should also like to say a few words on the subject, and I would congratulate the Minister on having introduced this Bill which contains a few improvements in regard to the magistrate’s court procedure. Our main objection to the Minister is, however, his lack of ambition—perhaps not political ambition, for there we cannot accuse him of lack of ambition, but we do accuse him of lack of ambition in the sense that he does not avail himself of the opportunity of going a little more fundamentally into the whole question of jurisdiction as far as the magistrates’ courts are concerned. He really had an excellent opportunity. Our old Act was drafted in 1917, under war conditions. Today we are once again passing through a war, but in the meantime more than a quarter of a century has passed, and that is why we regret the fact that he has not gone more thoroughly into the whole position. The hon. member for Gordonia (Mr. J. H. Conradie) raised a matter with which I wish to associate myself. He said that the magistrate today to all intents and purposes was the Government’s pack horse. All the work had to be piled on to the magistrate—it was a case of “piling Pelion on Ossa.” There is no end to the administrative work loaded on to the magistrates. They have to attend to petrol matters, tyres, old age pensions, poor relief and all these things, and ere long we will also have social security. I am afraid that all the administrative work in that respect too, is going to be loaded on to the poor magistrate. If the Government wants to have general administrative officers, by all means let the magistrates be those officers, but do not at the same time expect the magistrates when they have to perform all those administrative duties, also to pay attention to judicial matters. These are two entirely separate questions. You may have a man who is a sound administrator but his judicial sense may be very poor; on the other hand you may get a man with a great legal knowledge, good judicial sense, but who, as an administrator, is a hopeless failure. Why must one man be compelled to qualify in both directions? The result is that he has to neglect either the one or the other— either the administrative side or the judicial side. We do not want the administration of justice to be neglected, it is too important—it is of the utmost importance to the State and we cannot acquiesce to the system being perpetuated. We cannot allow a law to be put on the Statute Book which will make it most difficult to a man who looks for justice at the hands of the magistrate, to leave the court with a feeling of satisfaction. It is unfair to the practitioner, it is unfair to the man seeking his assistänce, to the man who goes to court and it is unfair to the magistrate himself. The magistrates simply have not got the time to become properly conversant with technical matters, with the multiplicity of laws released upon the world year after year in addition to the masses of regulations which are issued regularly. How can a man who is engaged on other work from morning to night keep himself informed of the flood of regulations which is always increasing in tempo because the Government’s capacity in that respect is infinite. We must have some change in this regard if we do not want the whole of our judicial system in the magistrate’s court to be discredited. This matter should have the serious attention of the Minister and his Department. When legislation was introduced in 1916 the idea was mooted of appointing judicial commissioners. That idea was very much in accordance with the system of county court judges to which the hon. member for Gordonia referred. If that were done, quite a number of magisterial districts could be taken together and one could have a magistrate with great experience on judicial matters for a particular service. Today two or three civil cases may be heard in a whole year in a magisterial district, but the magistrate has to keep himself well informed if justice is to be done. How can he do so under existing conditions. Is it not possible to consider the question of joining up a few districts and have a sort of travelling judicial commissioner who can take a shorthand writer with him. This travelling judicial commissioner will then be able to handle the civil cases in the various districts coming under him and with the aid of a shorthand writer who will accompany him, the evidence can be disposed of much more quickly and much more safely than under the existing conditions. We know that when cases go to appeal, it often is extremely difficult to determine what the witness has actually said in a lower court. The evidence is taken under particularly difficult conditions.

This is a complaint which has been ventilated for many years. I notice that the late Judge President Juta, Judge President of the Cape Provincial Division, as far back as 1916, said this in an appeal case—the case of Gerber versus Estate Jonker—

This sort of thing is still going on. I can give instances. I had a case in the Appellate the other day—a case where damages were claimed for trespass. Unfortunately the case is still sub judice but other cases of a similar kind continually keep on cropping up. If we introduced a system of the kind I have suggested, we would have men in the public service, men who are ambitious, who would make a special study of that kind of work. A man like that would feel thät he would not have to do administrative work all his life, but that his services could be used in regard to matters of which he had a special knowledge. In his spare time he would study to qualify as a judical commissioner. There should be a premium placed on a knowledge of law and it should not just go by seniority. The ordinary system in the public service should not be applied here. Appointments should be made on merit. If that is done, you will get men in those important decisions, occupying the status of subsidiary judges, men of ability and long experience at the Bar or the Side Bar. There are men of outstanding ability at the Side Bar who could qualify for these positions. If a man has been in the hurly burly of an ordinary practice, and he has had a judical practice, he is better able to understand our judical system than a man who has been a public servant all his life. So there may be an opening there for these people. We find today that members of the Junior Bar experience considerable difficulty in making a living, but if there is a prospect after having been at the Bar from 7 to 10 years, of being appointed to such positions, it may possibly act as an encouragement to them. The men selected for those positions will have to be placed on a good salary scale. They will have to start at £1,200 and rise to £1,500 per year and magistrates already in the service, men of special ability in the judical side of the work, should also have the opportunity of qualifying for those positions. They must be excluded. They must also be made to feel that if they are ambitious and have the necessary ability, they can look forward to those positions just like the young barrister with from 7 to 10 years’ experience or the experienced attorney. If that is done there will be a general reorganisation. The ordinary administrative officials will continue to handle the minor cases, say civil cases up to £10 and small criminal cases. But any important case involving more than £10 or any case involving a legal principle, can be left to the judical commissioner and if necessary we can raise his jurisdiction up to £300. In many respects the Minister will also be able to make our whole judical system cheaper. The officials we have today are often equipped to record the evidence completely, and circumstances are such that they really cannot do justice to their work. If we carry out the suggestion I put forward, a lot of unnecessary work will be cut out—work which is caused today as a result of magistrates who have to handle these cases today not being properly equipped to do so, not through their own fault but owing to all the other work they have to undertake. We are putting up a very serious plea with the Minister in this respect, and I hope he will give us an assurance that he will look into the question and we hope that, if possible at some future occasion, he will take steps in the direction we have indicated. This matter has been urged for years, from different parts of the House, not only from our side. I believe that we on this side have advocated something in this direction being done as far back as 1932. But the need of something being done is also felt outside. Only recently I had a letter from a magistrate in my constituency in which the same views were expressed, and that magistrate told me that the position was becoming simply impossible. This man is very ambitious, he is studying privately for his LL.B. and other examinations, but he is so snowed up with administrative work that he finds it extremely difficult to do any studying at all. I hope the Minister will see his way to introduce some drastic changes. If he does so, he will render a great service to the country in general, and particularly to the judiciary. There are a few other points which I want to bring to the Minister’s notice. The one is that if new rules and orders are framed for the use of the courts, an attempt should be made to simplify them. The rules today are so involved that the magistrate and the practitioner can hardly avoid contravening some of them. I hope the Minister will use the best draftsmen available to draft the rules of court not mentioned in this Bill as simply as possible and also as clearly as possible. Those rules and orders of the old Act led to a lot of legal difficulties and also led to a lot of other trouble. I hope that in drafting them, in terms of this Bill, an attempt will be made to avoid these difficulties of the past. I noticed also that in Clause 20 provision is made for advocates and attorneys who have been duly admitted to practise in the magistrate’s court in one part of the Union, also to practise anywhere else in the Union. It is a sensible rule. We are trying to create a uniform system, and if an individual has the ability and the competency to act as an advocate or an attorney in one part of the Union, he should be allowed to practise throughout the country. In this Bill we are dealing with magistrate’s courts, but I want the Minister to consider the question whether the time has not arrived to do the same thing in regard to the advocates practising in the Supreme Court. If an advocate is admitted in the High Court of Cape Town, he has to be admitted again if he wants to practice in Bloemfontein, Grahamstown, Kimberley or Johannesburg. In Natal the trouble so far has always been in regard to the dual practice. But now that that question has been more or less settled, the Minister should give his attention to this other aspect. It sounds anomalous that an advocate should be placed in that position. A King’s Counsel under his charter, is allowed to practice in any of His Majesty’s courts, but if a King’s Counsel from Cape Town wants to practice in another province, he first of all has to be admitted again. That is the law of the land, but it is in conflict with his charter. I think the time has arrived to remove this anomaly just as we are now doing in regard to the magistrates’ courts. We have this further anomaly that a Cape Town barrister can practice before the Appellate Division in Bloemfontein, but he cannot practice in the ordinary Provincial Division of the Supreme Court. As we have given this Bill a good reception, I hope the Minister will not confine his ambitions to one direction, but I trust he will also be ambitious enough to turn in this direction and use his efforts to give the country better machinery for the administration of justice.

With reference to the remarks of the hon. member for Fauresmith (Dr. Dönges) I wish to express my appreciation for the manner in which this Bill has been received. Many important points have been raised. The question of magistrates and civil commissioners is a very important point which has been thoroughly investigated, but it will not be practicable to introduce such an amendment in this Bill. It is a matter which will not only affect the magistrate’s court. There are other officers under the Act of the old Cape Parliament who must be appointed as civil commissioners. However, I wish to express my appreciation for the views which have been expressed. I agree with the remarks which the hon. member for Ermelo (Mr. Jackson) made in his eloquent address. The magistrates have a very difficult task in our country, not only as far as jurisdiction in the country districts is concerned, but also in regard to the other duties which are entrusted to them more and more, particularly in this difficult war-time when they have to do with less staff. It may eventually become necessary in the larger centres, and in combinations of smaller places, to appoint judicial commissioners. It would be wrong to appoint those people exclusively from the ranks of the magistrates, but I do feel sure that a great number of those people will be appointed from the ranks of the magistrates. In the difficult circumstances under which magistrates have to do their work, they have done excellent work also as far as jurisdiction is concerned apart from administrative work The hon. member also raised the question of shorthand writers in the magistrates’ courts. We will go into that matter thoroughly and we will eventually be forced to do that. I agree with him.

You have been agreeing now for five years.

Yes, but it is not so easy to get shorthand writers, and as the hon. member for Fauresmith rightly remarked, the costs are too high to make that possible everywhere. During the past five years a number has definitely been appointed and we are continuing with that policy, especially in the larger towns. As the hon. member for Swellendam (Mr. S. E. Warren) knows, it is essential to get efficient people to do this work. You cannot appoint just anybody. We shall go into this matter further. Other points of importance have been raised as, e.g., the codification. This is not only a matter which affects the magistrates’ courts, and that any other points will be thoroughly gone into. The hon. member for Fauresmith also spoke about the simplification of the rules. We hope to attain that through the commission which has been appointed. We thought of abolishing it altogether and to put into operation a simplified law court procedure, but we found that we could not justify that now. Under the provisions of this Bill we will be able to simplify the rules, and everything in our power will be done in that direction.

Is there an advocate on the Rules Board?

I think that the law societies will certainly consult the Bar.

Motion put and agreed to.

Bill read a second time; the House to go into Committee on the Bill now.

HOUSE IN COMMITTEE :

On Clause 9,

I should like to make a few remarks on this clause. This re-enacts the provisions of the old original Act. The right is given there to the Secretary for Justice to make acting appointments to judicial posts, and so on. Now, I am afraid that the policy followed by the Department of Justice has rather been an abuse of the privilege given under the old Act to the Secretary for Justice to make temporary appointments to meet special contingencies or exigencies arising out of incapacity or illness. We know that it is a fact that in the Department of Justice many second and third grade clerks are holding temporary appointments as magistrates— not due to any particular unavoidable circumstances—except perhaps to the war just at present—but definitely due to the fact that there has been no magistrate in the particular area, and these temporary appointments, as they are called, really constitute an abuse of the right given to the Secretary for Justice to make such acting appointments. We have from time to time discussed the question of the pay of magistrates, and I think the House is satisfied that the emoluments paid to second grade magistrates are inadequate.

They are all in the Public Service.

Yes, I know that perfectly well, but I want to point this out, that these judicial appointments are some of the most responsible appointments in the whole of the Public Service. I am now dealing with the temporary appointments for which authority is given in Clause 9, and I was trying to point this out, that we have a number of second and first grade clerks in the Department of Justice holding temporary positions as magistrates. These posts are renewed from time to time and they have to be referred to the Public Service Commission from time to time—the particular posts are referred to the Public Service Commission as posts which have no occupant. Now I want to come back to the question of the pay which these people get. We are all agreed that a magistrate is underpaid at £500 or £600 per year. But here you have second grade clerks acting as magistrates—second grade clerks getting from £240 up to £400, or first grade clerks acting as magistrates, getting say from £340 to £500. Surely those people are also underpaid. I am informed that there are scores of appointments of that kind—more so today than before. We are told that this is due to war conditions, but it is not only due to war conditions. This position existed before the war—and it has become quite a practice to appoint second and first grade clerks as temporary magistrates, which I think is definitely wrong, particularly if these people—as is the case in a number of instances— do not even hold the lower law civil service certificate. I think it is wrong to put these people into such responsible positions, and I feel that the Minister will admit that this constitutes an abuse of the right to make temporary appointments.

Clause put and agreed to.

On Clause 14,

I should like to know from the Minister what his intentions are in regard to messengers of the court. Does he want to continue the present system, or is he going to change it?

No changes are being made.

Clause put and agreed to.

On Clause 25,

I hope the Minister will meet us here, for I want to move the following amendment—

I am prepared to accept that amendment.

I am pleased the Minister is so accommodating. We feel that the rules of the court at present might possibly be simplified, as the hon. member for Fauresmith (Dr. Dönges) pointed out.

What will be the effect of this? I have no objection against advocates, but the attorneys have no say in matters relating to advocates, and I cannot see why an advocate should specially interfere in matters relating to attorneys.

The advocates are also affected by the rules of the court when they appear in magistrate’s courts, and no objection can be raised in this respect.

In those circumstances I shall not object.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 29,

I would be very pleased if the Minister would go further into this matter. In this clause it says—

The jurisdiction of the magistrate’s court has from time to time been increased. It started with £20 and now it stands at £200. But in this case it is being increased to £500, and we should like to know whether that is necessary.

These are all cases where judgment is given immediately. This provision is made to decrease costs. At the moment the costs are higher and the Side Bar does not profit from it. It is the debtors who have to pay.

Clause put and agreed to.

On Clause 46,

In this clause it is laid down—

The magistrate’s court has jurisdiction up to £200, and why should people be forced to go to the Supreme Court in cases where the estate amounts to less than £200. I do not want to propose an amendment now, but I should like to know whether it is not possible for the Minister to give magistrates’ courts in such cases jurisdiction in regard to estates under £200.

The Master actually is the court. This is a matter which can be considered on a future occasion.

Clause put and agreed to.

On Clause 55,

I should like the Minister to give me some information. I know nothing about the law.

Hear, hear.

I am glad to hear that there are so many other members in this House in the same position as I am in. Here in Clause 55 (1) mention is made of “individual” and then in brackets behind it “natural person.” Who is being excluded here, and what is an unnatural person?

All persons who are not natural persons.

I should like to know what this means.

A person, and not a corporate body.

Clause put and agreed to.

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

HOUSE RESUMED :

The CHAIRMAN reported the Bill with an amendment.

Amendment considered.

Amendment in Clause 25 put and agreed to, and the Bill, as amended, adopted.

Bill read a third time.

I move—

In this happy atmosphere of sweet agreement it is not necessary for me to say much on the Bill, the second reading of which I now want to introduce.

We cannot all do that.

I shall do my best, at any rate. This Bill is a simple measure. Most of its provisions are designed to clarify the wording of the main Act. There are, however, four aspects of the Bill to which I would like to draw the attention of the House. Those aspects concern the main amendments to the principal Act. Let me take Clause 3 (a) of the Bill, for instance. The section of the principal Act to which it refers deals with the payment of allowances to persons who are called upon to attend the proceedings of the children’s court. In terms of the existing Act the Commissioner, who presides over the court, may order an allowance to be paid in respect of persons who attend as witnesses, but he may not do so in the case of parents, guardians, or custodians of the children. It seems inequitable that such persons should be debarred from receiving some form of allowance in cases where they may have been put to expense. A parent, a guardian or a custodian may be called upon to attend from some distance. Such a person may have to come from the platteland to town to attend court and may have to incur expenses. This section will enable that person to be compensated at the discretion of the commissioner presiding over the court. Then Section 13 (a) provides for the establishment of institutions and hostels by the Minister. In terms of the Act, at present an institution conducted by private persons or voluntary agencies is not obliged to receive a child committed to an institution by the children’s court. The children’s court commits the child to an institution. The Department of Social Welfare then seeks to find an appropriate institution to which to commit the child. But cases have arisen where the Department has been unable to find such an institution for a long period. One institution after another may refuse to receive the child. There have been cases where institutions have consistently refused to accept children on the grounds that the parents of the children have suffered from leprosy, notwithstanding the fact that according to the medical evidence the children themselves are quite immune. The result in practice has been that the Department has either had to have the children discharged from the provisions of the Children’s Act or has had to keep them in a place of safety for a very long period indeed. The position is not satisfactory, and it is accordingly felt that the time has arrived when the Department should be enabled in terms of the Act to establish, maintain and control institutions of this kind itself. It is not the intention that the Minister or the Department should establish institutions in opposition to those conducted by private persons or voluntary agencies. That is not the intention at all, but it is rather that an institution—or perhaps more than one institution in the course of time—should become available through the Department of Social Welfare in order to meet the need to which I have referred. We are not attempting to interfere with private organisations or charitable organisations. It is not my conception of the duty of the Department of Social Welfare to step in and to usurp the work and the jurisdiction of those voluntary agencies which have done such excellent work in the past. Rather is it the function of the Department of Social Welfare to act in partnership with such voluntary agencies. But, in order to enable that work to be carried out properly, I hope the House will agree with me in feeling that this provision is necessary. Then Clause 14 of the Bill provides for the compulsory registration of children’s institutions. There is no such compulsory registration at the present time. In terms of this provision it will be made obligatory for all children’s institution as defined in the Act, other than institutions maintained and controlled by the Government or the Provincial Administrations, to apply for registration within a stated period. If thereafter they are not registered under the Act they will be prohibited from admitting any child whatsoever. This provision is considered necessary by the Department in the light of past experience, because there are hundreds of children today who are in those institutions which are subject to no official control whatever, and it is felt most desirable and necessary in the interests of the children themselves that a measure of control should be exercised. This amendment in section 14 should be read in conjunction with the provisions of Section 20 of the Bill, which now enables that measure of control to be carried out through inspection by the Department. In terms of sub-section 2 of Section 55 of the principal Act, an inspector appointed by the Minister may enter and inspect a children’s institution only if such institution has on its roll a child committed to the institution under the Act. In other words, an inspector may not enter an institution where there are no committed children. The provisions of Section 20 of the Bill will now enable inspections to be made of institutions, whether or not those institutions harbour committed children. The provisions of Section 20 of this Bill, coupled with those of Section 14, will enable the Department to exercise that measure of control which in the light of experience it is felt is desirable in the interests of the children themselves. Then I might refer to Clause 25 (1) of the Bill. That provides for the payment of grants towards the maintenance of parents, stepparents, guardians, grand-parents or brothers or unmarried sisters in whose custody a child is placed by the children’s court. At the present time grants may be made, where a child is committed, in respect of the children themselves. A grant may be made in respect of a committed child up to an amount of £2 10s. a month. A grant may also be made to the parents of the child if the child is committed to the parent. A grant up to £2 10s. may be made to the parent. But the law does not permit of such grants being made to step-parents, grand-parents or brothers or unmarried sisters of the committed child. It would seem equitable that the Department should have the power to make such grants in suitable cases, and we therefore seek that power in the clause under consideration. Those are the main provisions of the Bill which, as I say, has been designed in the light of the experience gained since the passing of the principle Act in 1937. The Bill has been carefully considered by interested bodies, and I may say for the benefit of hon. members that following upon consultation between the Department and the National Council for Child Welfare after the Bill was drafted, it was decided that certain provisions of the Bill as then drafted would be dropped. I think I should therefore give hon. members notice that when I come to take the Committee stage in due course I propose to ask the Committee to drop Clauses 10, 12, 15, 21 and 28. At the Committee stage I shall give my reasons for asking the House to adopt that course. But in any case I think I should give that information to hon. members now, and let them know that it is proposed to follow that course as the result of discussions between the Department and the National Council for Child Welfare. The proposals to make these amendments have been made in the interests of the children themselves as the result of representations made to the Department.

We agree with the Minister that it is necessary to make certain amendments. We are in no way opposed to the provision that the department must take steps to establish the necessary institutions to accommodate such cases as are committed by the courts. On the contrary, I think different classes of institutions will probably be required and practical experience has already shown us that there are certain cases where no institution will or can take the children in. Perhaps they feel quite rightly that it may be a danger to the other children and they therefore refuse to take such children in. But I think there are a few groups for which provision will have to be made. The Minister referred to one group of children. The children of people suffering from serious infectious diseases, such as leprosy. I can conceive of there being children of parents suffering from other infectious diseases where, if the institutions know about it, they will rightly hesitate to take the children in, and I feel that in the course of time it will be found that we shall require that type of institution for these children. I hope the institutions will actually be established and that proper provision will be made for them so that the various classes of children can be taken up in the most suitable institutions. In regard to the institutions established by private agencies, I do not know of a single institution which can really be called a private institution. I believe that all of them come under the supervision of welfare societies or other societies of a similar kind. And there, too, we agree with the Minister that public agencies should be encouraged as against private agencies, and as a matter of fact they are being encouraged by the assistance they receive either from the State or from the provinces. The classes of children showing an inferiority complex and backwardness, and even those with criminal tendencies, have already been provided for. In that respect, therefore, we on this side want to encourage the Minister and the Government to make the necessary provision, and we hope that the best possible provision will be made and that it will be made on scientific lines. A great deal has to be done for that class of children. In many instances those children have been growing up under very bad conditions and in very bad environment, and sometimes it is necessary to send them to special institutions for their reformation, and they have to be put under very special supervision; if the State itself establishes those institutions real opportunity will be created for scientific methods in the education of those children to make them fit to take their places as members of the general community. The hon. Minister also referred to Clause 3 in which it is proposed that certain payments are to be made by the children’s court to parents or guardians, and I think he has made out a case for such a step. I think it is perfectly correct that where they are not guilty of any misdemeanour or ill-treating the children, they should be compensated. Another important clause is Clause 14 where provision is made for the registration of institutions for the care of children. This is a step which is very essential under present conditions. The time will probably come when we shall even have to consider establishing institutions for the development of children and for making use of the advantages in connection with the education of the children. I think it is a good thing to make it impossible for any private agency to establish an institution unless such an institution is registered by the State. There too, we agree with the Minister’s proposal. The Minister will probably tell us later on why the less important provisions are being withdrawn in these cases, but I assume that good reasons have been advanced by the Children’s Aid Society. With these few remarks, we want to give our support to the Bill and we want the same spirit which prevailed when the Magistrate’s Court Bill was under discussion, to continue.

Mr. Speaker, I join in the welcome extended to this little bantam before the House this afternoon. The Minister has not contemplated a review of the children’s charter, I mean the Children’s Act of 1937. It is evidently thought that, as that measure was passed only a few years ago, the view should be taken that it is too early again to review the whole position of legislation in reference to child welfare. The fact, Sir, that the Minister has been in consultation with the National Council for Child Welfare would strengthen that assumption. It should be in the forefront of our legislation that our responsibility for the child should be emphasised. The Bill is intended mainly to provide against hardships of children which have not been overcome in the principal Act. That is indicated in the authority which is being given to establish institutions for the reception, maintenance and training of children “in need of care” committed by the children’s court, and while, Sir, we welcome the statement that the Minister desires that this innovation shall be an act of co-operation with existing institutions, I do not think it will be out of place to pay a tribute in this House to efforts made by existing private institutions for the care, training and maintenance of unhappy children who are “in need of care” owing to unfortunate circumstances. The fact that the institutions proposed to be established by the Government are complementary, is an indication that the Government is adopting fully the principle that it is responsible for every child brought into the world in this country of ours. The Government must accept that responsibility on the principle that every child is an asset to the country. But, Sir, while there are clauses that are welcomed by this House and the country, such as those which provide for the institutions which the Government proposes to erect and a system of registration, there is one aspect in connection with this legislation which has been brought to my notice, and which I would like the Minister to express the opinion of the Government upon, and this is in Clause 30 in the Act dealing with the apprenticeship of children. I would like to know whether the Minister is satisfied with the provisions under which children are apprenticed to various industries or occupations, and that those provisions are in the best interests of the children concerned. I take it, Sir, that the majority of these children are those for whom provision cannot be made in the existing institutions to which he has referred and that the establishment by the Government of its own institutions will meet the needs of a very large proportion of the children who are now committed to a term of apprenticeship; compulsory in the case of children under. 16 and voluntary in the case of children between 16 and 19. Mr. Speaker, I wish to ask the Minister whether when this principle was established it was intended that the apprenticeship should cover adequate educational conditions, supervision, training and all the other help and guidance provided by the institutions to which he has referred. There are quite a large number of children concerned. According to the memorandum on the policy and activities of the Department of Social Welfare there were 322 children who were affected. I think that was for 1942, or at any rate for the year ended March, 1943, and it is very probable that that number has increased in the interim. By taking the figures up to 1943, according to this memorandum, out of 322 children so affected there were three Europeans, 281 coloureds and 33 natives. According to the report 177 apprenticed to farming and general occupations, and 145 to domestic service. I want to put it to the House that it is a matter for serious consideration as to whether the principles of apprenticeship as provided for here, should not be reviewed in the interests of the children. What kind of future can these children, apprenticed in this way, look forward to? They are placed in a very insecure position in regard to their future life. I do not wish to cast any reflections upon the system so far as the farmers are concerned. Doubtless there are many good homes in which these children live, but the system itself, I submit, is wrong because it is open to serious abuse, and in the interests of these little ones of South Africa, whatever race they belong to, I think the time has arrived at least for the Government to review the whole position and see if it is not possible to make some amendment in the legislation before the House. I do not think it is necessary to add anything more at this stage. Every child in South Africa has a claim upon our careful and sympathetic interest, but more particularly those who are handicapped socially, economically and physically from their very infancy. I welcome the Bill, Sir.

Mr. Speaker, I think it is a matter for congratulation that at this stage in the review of the working of the Act it is necessary to introduce comparatively few changes in the foundation structure of the Act. In saying that, I am talking of the operation of the Act essentially in relation to European children. The Act, of course, is not framed with a colour bar, but it is practically inevitable that any Act in South Africa dealing with any social problems should tend to operate with something of a colour bar, and I wish, Sir, to draw the attention of the Minister to one or two directions in which I think the Act has not acted favourably towards non-Europeans. Here I wish to refer to the point which has been made by the hon. member for Roodepoort (Mr. Allen), and that is the question of the treatment under the Act of the children for whom the ordinary background of our social practice is not as satisfactory as it is for the European children in this country. The hon. member has asked if the Minister would express the Government view upon the apprenticeship system which has come to be one of the main means of dealing with children in need of care, as well as children who have got across the law in our society. In regard to the children of the non-European groups. I want to take the opportunity of telling the Minister what I think about the provisions in the Act. The Minister, I know, is quite familiar with the terms of this Section 30 of the Children’s Act, in which it is provided that the children who have been committed by the courts as in need of care or who have been committed for criminal offences, may be apprenticed to suitable employers. But there are different types of apprenticeships. One is that any child can be apprenticed in terms of the Apprenticeship Act, which means that he must be 15 years or over, to a trade in which there is the framework of and facility for proper training; which means that a child apprenticed under that section is going to be turned out with a trade at his finger-ends and the ability to make a living. The whole intention of this section is to do what our Children’s Act aims at doing, namely, to take children who have been unfortunate enough to be launched in unsatisfactory social conditions, to lift them out of those conditions and to train them as useful citizens without any slur upon them from their back history at all, to launch them as fully trained and useful citizens. I believe that clause has been a very useful clause; but sub-section (2) of Clause 30 provides for a different type of apprenticeship, to which the Apprenticeship Act of 1922 does not apply. Here there is no age limit at all, and there is no guarantee whatever of adequate training for the child. In fact, the system, as visualised here and as it operates in practice, means nothing more than slavery. Over the age of sixteen, the child must give its consent to the apprenticeship, but the point in this sub-section is that there is no age condition of apprenticeship as such. Children can be apprenticed under this clause at any age, and the point I want the House to realise is that this system applies to children whose only misfortune is that their parents are poor, or that they are the children of unworthy parents; it applies to them as well as to children who are committed by the courts for criminal offences. Now I want to show something about the working of this clause. Last year I had a letter from one of my constituents at Port Elizabeth, telling me that a native woman in New Brighton had been deprived of her three children. They had been taken away from her and she did not know where they had gone. The information given to me was to the effect that the children were aged seventeen and fifteen, and one younger than that. I thought there must be some misunderstanding about this, and I wrote to Port Elizabeth to find out the truth of the case. I referred it to the Social Welfare Department there and asked them what it meant. They wrote back in due course and said that it was true that the woman’s children had been taken away from her. The woman was herself a thoroughly unsatisfactory mother, of that there was no doubt whatever, and the result was that it was decided that her children should be taken out of her custody. The officer’s letter in reply to me said that the eldest child was only fourteen, and he had been put in suitable employment with an employer in the District of Humansdorp. Now the employer may be a perfectly good employer; that I do not know about, but I very much suspect that people who do apply for this type of child are looking for cheap labour. I do not want to make any reflection upon this particular employer. My information is that one child of fourteen, this boy, was apprenticed to one employer, and the other two children, a boy of eleven years of age and a little girl of seven years, were apprenticed to another person in the District of George. With regard to this latter employer the welfare officer reported “that Mr. and Mrs. X are good employers and treat their servants well.” If these children are handed over to employers who treat their servants well, the fact is that the children are separated from any sort of home life, from any sort of ordinary human environment. The relationship established under this type of apprenticeship is that of master and servant, and from that tender age these children are tied down according to the regulations of the Department of Social Welfare, to the age of eighteen. On receipt of that letter I turned my attention to the Social Welfare Department’s records, and some of the information I acquired has been quoted by the hon. member for Roodepoort. The figures given to me by the department at the beginning of this year show that about 500 children are indentured under this type of contract. There is no information as to whether they were children in need of care or children committed for a criminal offence. As the hon. member has told the House, some 38 only of these children are natives; but there are well over 400 coloured children indentured under this system. Now, Sir, I quite appreciate the difficulties under which this system has arisen, but I do not think the difficulties are any justification for a system for which I can find no precedent except in the past. This system of apprenticeship was in use in the eighteenth century, when it was part of the slave system of the eighteenth century in South Africa. It was then abolished at the beginning of the nineteenth century with slavery. But it has crept back into our South African practice. I do not quite know how. It was in use in England as the result of the very unhappy conditions of the industrial population at the beginning of the industrial revolution. It was a part of the pauper system under the old Poor Law of England, when orphans were hired out under this type of apprenticeship to the manufacturers of the time. It seems to have crept back into South Africa from this practice and here it has remained well into the twentieth century, a relic of a barbarous age and barbarous conditions. I can see no justification whatever for the retention of this system under our social law. It was retained in the first instance largely because of the absence of institutions into which these children might be sent. Our institutional organisations have grown up piecemeal and one of the weakest features of the whole social organisation is the absence of institutional treatment for non-European children. I hope that the intentions of the department under this amending Bill will get over that difficulty. Another difficulty was the unsatisfactory conditions of non-European life in our towns, and the consequent difficulty of finding satisfactory families to which children might be committed under the supervision of probation officers. That difficulty also is disappearing. At any rate, I am glad to record that on my recent tour of the Eastern Province I found that the Department of Social Welfare was increasingly extending mother’s grants to African mothers and that foster parents were increasingly being found for children whose homes were unsatisfactory. Had this system been operative before, many of these children would not have been separated from their parents but would have been looked after in terms of these grants and would have continued to live in proximity to educational opportunity, and thus have had some chance of becoming useful citizens. Now I would like to see introduced into this Bill an amendment providing that no child shall be apprenticed under this Paragraph 2 of Section 30 of the Act under the age of fifteen. I think that would be a move in the right direction. It would at least ensure that these children are not apprenticed in their infancy to dead-end occupations and would provide a chance of their being set on the right road. One of the Department’s own Social Welfare officers reported that, in many cases, the children apprenticed under this section of the Act are employed where no other servants are kept, that these children are called upon to do heavy manual work beyond their capacity, and that they simply constitute a source of cheap labour. That in itself is a thing of which we ought to be ashamed. Whatever may be said in favour of this system, nothing can outweigh its disadvantages. It is a system with a real slave character attached to it, and it ought to be abolished if we are to hold up our heads as protectors of child life. I have nothing but praise for the working of the principles of this Act in respect of the European population as far as I know it, but in regard to the other sections of our population, it is impossible to feel the same sense of satisfaction. In fact, so long as the practice of indenture remains we cannot claim to have established a children’s charter in this country. I hope the Minister will consider the proposal I have put to him, and that he will givè his department to understand that in administering the Act our intention is that every child in need of care will be given the sort of care that will enable it to become a useful citizen.

Mr. Speaker, I should like to support what has been said by the hon. member for Roodepoort (Mr. Allen) and the hon. member for Cape Eastern (Mrs. Ballinger) in regard to certain features of the apprenticeship system which is embodied in the Children’s Act. May I, Sir, from a fairly lengthy personal experience just relate to this House what occurred within my own knowledge in regard to this system. My farm manager, who was new to me, had come from another province. He had not been with me very long when I had a telephone message from the police asking me whether I had in my employment a man working under the name of Smith. I admitted that that was so, and the officer in charge said he would send somebody to see him. When the constable arrived it transpired that there was a charge against this gentleman of having gone round to certain farmers in the province from which he had come, and he had been receiving £1 per head for orphans which were to be delivered to the farmers under this apprenticeship or indenture system. And so I had to part with my farm manager. That shows how this system in that case in any event tended to cupidity on the part of a man who saw a means of turning a dishonest penny by proposing to traffic in these small human souls at so much a head. The system is not a good one. The hon. member for Cape Eastern says that it is a relic of bygone times and I beleive that when orphans who as a result of native wars and rebellions were left behind they were provided with homes by this rough and ready apprenticeship. I am speaking now more in regard to the native population than any other section, but to extend that in any degree to the poorer European classes or the non-European classes would be no less justifiable than would be its continuance for the natives. It is not everyone who can be trusted with the handling of these orphans— these orphans are completely at the mercy of the people in whose care they are. I hope the Minister will do everything he can to minimise the growth of this system, because it is a dangerous one and one which requires careful supervision—supervision which the Department cannot possibly maintain. I hope the Minister will make it known through his department that he desires it discouraged if not completely abolished. Personally I am opposed to it. The experience of a number of us has been that the system is a bad one and that we should set a limit to it at the earliest possible moment.

I, too, must raise my voice against what I feel is a pernicious system. To drag a child from its normal environment and place it into conditions of servitude and service must be abhorrent to all of us. The figures given by the hon. member for Roodepoort (Mr. Allen) showed that there were only three Europeans, nearly 400 Coloureds and 32 natives involved. But the figures quoted by the hon. member for Cape Eastern (Mrs. Ballinger) show that there has been a tendency to increase the indentures among coloured people at present. Might I quote the circumstances of one particular case which has come to my notice in the last month. This is the case where a coloured child was handed over to a woman at the age of three. That child was taken from a coloured family in Somerset West and the woman also lived in Somerset West. The coloured child, a girl, was indentured to this European woman at the age of three, and the child has now been with that woman for more than four years. Now this European woman has left Somerset West and has come to Cape Town where she is living in an hotel with her husband. There is no provision, of course, for the coloured child in the hotel so this woman has transferred the child to another member of her family who is living under conditions which certainly cannot be known to the Department of Social Welfare. The child herself, now about 7 years of age, is denied every possible opportunity of normal intercourse with other children. I had the occasion to ask the woman to whom the child had been indentured if she knew the responsibility she had undertaken, and I asked her if she proposed doing anything for the education of the child. She said she did not think so. I asked her if she was not expected to provide for the education of the child and her reply was: “I don’t think so.” At any rate she definitely does not intend doing anything. Well, the child is a servant at present. I asked the other woman to whom the child has been handed whether it was her practice to beat the child, and the reply was only when she is deceitful and tells lies. Now the child has only been with her for a month. On one occasion the child was given a hiding and at 9 o’clock at night she ran away. She was brought back to her home between 12.30 and 1 o’clock by a Greek café proprietor who found her lying in the street afraid to go home. So the child received another beating. When I asked the woman how often she had beaten the child in the month she had her, I received the information that she had beaten her about six times. But there was one feature which struck me very forcibly, and that was that there was a leather strap nearby always ready to be used. That child had been handed to the woman without the authority of the Minister. I saw that child on two occasions with the woman to whom she had been entrusted, and let me tell the House that the child walked behind like a dog. Well, of course, that practice must be as abhorrent to the Minister as it is to any one of us. I hope the Minister will take steps to guard against this indenture being abused. I suppose this child was in need of care when she was indentured. Now let me say that there are more opportunities for the adoption of children than there are demands for indentures. There are hundreds of families who want children, families to whom children in need of care would be welcome. I would welcome the system of adoption. I know that Mr. Kuschke at one time had hundreds of appeals from people who wanted to adopt children from overseas. But this practice of apprenticing urbanised children brought up in surroundings of happiness, of transplanting them because of their delinquency— imagine, delinquency in a child of 12! It is absolutely repulsive to me. If there is such delinquency it is our own fault. Of course, the Bill does not allow anyone beyond the age of 16 to be apprenticed except at his or her own request, but what about those below 16? I want to ask the Minister to take into serious review the evils that are possible under this system. I know that the Department of Social Welfare is doing everything possible to deal with the situation. Let me refer to what the Department through its secretary has done to secure the buildings of the Athlone Blind School and to create a home for the younger children who had been committed. Today these children are being educated under good conditions in a decent institution. I do feel that the department has this matter well in hand, but I do want the Minister to consider the question of finding foster parents for any child under the age of 16. I would say that where children are committed not necessarily through the magistrate or through the children’s court they should be sent to institutions rather than to individuals who would deny them the normal relationship which exists between parents and children and between children and children. It has been my experience since the inauguration of this Children’s Charter that the presiding magistrate in the courts do not want to take the children away from their parents. If there is anything wrong with the parents the presiding magistrates take them to task, and I must say that in that way they have done more to improve the relationship between mother and child than could have been done in any other way. I have never found any instance where the enquiring officer has taken the child from its parents. The magistrate may have seriously admonished the parent—very much to the benefit of the parent. In conclusion I want to appeal to the Minister to abolish this pernicious practice of indenturing children under the age of 16, and if he cannot find foster parents, let him remember the old saying, that a bad home is better than no home at all.

I have been very interested in the speeches made by the hon. member for Roodepoort (Mr. Allen) and also by the hon. member for Cape Eastern (Mrs. Ballinger) and by the hon. member for Green Point (Mr. Bowen), in so far as all three of them, especially the hon. member for Cape Eastern and the hon. member for Green Point have concentrated their attention on the one apparent defect in this Bill—something they would like to see improved. I must confess that they are right. But at the same time we know that where there is plenty of sunshine, there must of necessity be some shade, and while this particular clause is not very satisfactory I have no doubt that the Minister will do his best to rectify it. No one has complimented the Minister and his department on the amendments he has introduced here. There are several far-reaching amendments—the one for instance under which the parents have to give evidence in certain cases. There are improvements in respect of children who are turned away from door to door, on the pretence that they are associated with some infectious disease such as leprosy and venereal diseases which are to all intents and purposes not infectious. So these children are practically turned out. The Minister has concentrated his attention on these matters, and it is very gratifying to learn that he is on the eve of rectifying them. We do not realise that there are about 110 institutions in the Union which have to cater for 2,000,000 Europeans, and that there are only forty such institutions which have to cater for 9,000,000 non-Europeans, When the Minister comes forward and proposes to rectify these conditions we should be very grateful indeed.

We are.

Yes; but we allow our gratitude to be obliterated by one temporary defect. The Minister has made it abundantly clear to us that on account of the unsatisfactory state of these institutions, he is about to take control of them in so far as to have them registered. At present, if the Department of Social Welfare knows that a child is ill-treated, neither the secretary nor his officials have the right to enter the place unless it is registered. We know that steps are being taken in that regard. Another important feature is that the Minister intends dealing more severely with these questions of street trading. He is trying his best to do away with the congregation of skollies on street corners. He is going to try not to allow white and coloured children on street corners to be hawkers or traders, except with the permission of the municipality. That is a great step forward. The Minister is going to give us an opportunity also of having more of these institutions which have been referred to. No doubt we shall be able to correlate these institutions with the institutions mentioned by the hon. member for Cape Eastern and, also in spite of the fact that these children come out of homes where they have these comparatively non-infectious diseases, such as leprosy and venereal diseases, they will also be cared for. In passing I would like to say that we would like to see this indenture system abolished; at the same time we want to say that the alterations proposed by the Minister are alterations for which we as individuals should be very grateful. I am also grateful to see such a step forward and I hope the other matters which the hon. member for Cape Eastern mentioned will also be rectified in time. Everything, however, takes time.

I very much appreciate the spirit in which this debate has taken place this afternoon, and I am particularly grateful for the fruitful and constructive suggestions which have come from those hon. members who have dealt with this question of apprenticeship— the hon. member for Roodepoort (Mr. Allen), Cape Eastern (Mrs. Ballinger), Gardens (Dr. L. P. Bosman) and Green Point (Mr. Bowen). There is no doubt that the position is unsatisfactory—the position in regard to these apprenticship conditions under the Children’s Act. The hon. member has given figures. The largest number, of course, of children who are apprenticed under terms of the relevant provision of the Children’s Act form part of the coloured community. The latest figures which I have show that there are 498 apprenticed coloured boys and girls, and I may add that the official reports show that the conditions under which these apprenticed boys and girls live and work are not always satisfactory. The criticism which hon. members has levelled is just. There are many employers who treat their apprentices with care, humanity, feeling and consideration, but there are cases which leave much to be desired. I do not know anything about the details of the cases raised by hon. members this afternoon. The hon. member for Cape Eastern has dealt with these matters through the department, but I do not know whether the hon. member for Green Point has raised his specific case with the department, so that we can go into the details; but I am grateful to these hon. members for bringing these matters to the notice of the House and to my own notice this afternoon. Now, the hon. member for Cape Eastern has asked me to abolish these indenture provisions. It is quite true that they are a relic of the past— the roots of the system rest deep in the past. It was, I understand, in 1812 that Lord Caledon first legislated for the apprenticeship of orphan Hottentots. The current idea was that the master was—in the term of the day—a “master of humanity,” and apprenticeship of non-European children was a form of foster parentship, but obviously this system does lend itself to abuse—it is open to abuse—and there is no doubt that experience has shown that the conditions governing many of the contracts or the operation of the contracts are really not worth while. The hon. member asked me to abolish them now. My answer this afternoon is that to give effect to that advice and request is impracticable at the present stage. The apprenticeship provisions are in the Act in order to enable the Commissioner of Child Welfare and the children’s court to deal with children in need of care. It we have sufficient institutions there would be no need for these apprentices. But until we provide adequate institutions ourselves we must have some voluntary provision of that nature. There is no doubt that some of the contracts are to the benefit of the children concerned. The suggestion has been made by the hon. member for Green Point and by other hon. members, that we should try to concentrate more on finding foster parents and I think that it a very helpful suggestion.

If they are bad foster parents they may be treated just as badly.

Yes, there is that possibility. I admit that no system of this sort is foolproof. There is always the danger of abuse; there is always the danger of some person in the relation of master towards servant abusing his power of control. The Department of Social Welfare recognised that the system is not right and has been trying to find a way out of the difficulty, and has, despite the lack of accommodation, sought to encourage by way of subsidy, the creation of private institutions. The hon. member for Green Point has referred to one. The Department of Social Welfare in the course of the last few years has made a beginning with the granting of subsidies, sometimes a hundred per cent. subsidies, for institutions such as the Good. Hope Institute, the Fourie Institute—an institute in Johannesburg, another one at Oudtshoorn, and the St. James Home in Port Elizabeth. We hope, under the provisions of this Bill, to be able to create institutions ourselves. There is the suggestion that we should try to provide an adequate number of institutions—that those institutions should be provided either by the department itself, or through the agency of voluntary organisations. I am inclined to think, having listened to these very constructive suggestions, that it may be possible even now, by way of amendment to make some improvement in the position, even though I may not be able to go the length which hon. members have asked me to go. Under Section 30 of the Principal Act a contract of apprenticeship may be cancelled. Subsection (3) of Section 30 of the Principal Act provides that a contract of apprenticeship may be terminated by agreement between the parties thereto, or the Commissioner of Child Welfare may at the request of the employer or employee cancel the contract—in other words, the contract may be cancelled by consent of both parties or it may be cancelled in the discretion of the Commissioner at the request of one or other of the parties.

Who is going to speak for a child of six?

Those are the only provisions in the Principal Act which enable a contract to be cancelled. There is no provision enabling the Minister, on the advice of his department, to step in and take action. It seems to me that it may go quite a long way to meeting the views expressed by hon. members if an amendment were introduced which would enable the Minister to take power to cancel any contract of apprenticeship—any existing contract or any contract in future to be entered into. This would enable the Minister through the Department to scrutinise all contracts, and where he thinks necessary to cancel those contracts, which in the opinion of the department may be bad contracts. It seems to me that that, at any rate, would give the Department, through the Minister, an opporunity of exercising control which is not operative at the present time. I am prepared to consider such an amendment at the Committee stage. The hon. member for Cape Eastern (Mrs. Ballinger) has suggested that one should also place a ban on apprenticeships of children under fifteen. It is impracticable today to do that, in view of the lack of accommodation difficulties to which I have referred. But I am prepared to consider whether one should not lay it down that before a contract of apprenticeship in respect of a child under fifteen may be entered into, there also the consent of the Minister should be obtained. I am prepared to consider that in the light of the suggestions which have been made this afternoon. If these amendments are made, then at any rate the Department of Social Welfare will be able to exercise greater control and supervision than at the present time. Of course, an additional difficulty of the Department is that of staff. We cannot, particularly in these days when staffs are being worked to the maximum, we cannot hope to supervise every contract of apprenticeship that has been entered into. But where questions come to the notice of hon. members or any other individuals, organisations or institutions, I would be very glad indeed if they would bring them to the notice of the Department so that through normal channels investigation may be made. I am not satisfied that the apprenticeship provisions are working properly; as soon as it is practicable to do so I hope we shall be able to abolish these. But, until we have adequate accommodation that is to say until it is a practical proposition to abolish them, I hope the amendments I have suggested this afternoon will go some way towards meeting the desires of hon. members that have been put forward in such a spirit of constructive criticism.

Motion put and agreed to.

Bill read a second time; House to go into Committee on the Bill on 27th April.

I move—

Mr. Speaker, perhaps I may be fortunate enough to share in the good spirits which prevail here this afternoon. The Bill which I am going to put before the House is a very innocent little Bill, with perhaps one exception, and that is in Clause 2, which I shall explain presently. The object of the Bill is of a two-fold nature. One is to facilitate the working of the Water Court, and the second object is to make provision for the control of land irrigated by water derived from Government irrigation works. In regard to this clause dealing with the Water Court procedure, the Water Court judge has always found it very difficult and inconvenient in carrying on water court work. Many of the general regulations relating to procedure were found unsatisfactory, and in some respects ultra vires of the Irrigation Act in operation. In revising the regulations it was found that this could not very well be done without amendments to the Act itself. The amendments now embodied in this Bill have been drawn up after a great deal of thought having been given to them by the judges who are charged with actually carrying out the provisions of the Irrigation Act, and they have been designed with a view to the more efficient working of water courts and the cutting down of unnecessary costs. In many cases the costs that have been incurred unnecessarily have been enormous. There have been cases where the court which consists, as this House knows, of a judge and two assessors, has had to transact business which took about five minutes, and in order to do which one member had to be brought from Pretoria and another from Mossel Bay. One of the greatest anomalies in connection with the Act is that the judge of the Water Court has no power to grant any interlocutory order. This means that if such an order is required the expense has to be incurred of assembling the whole court to sit for a few minutes in order to deal with a matter of pure procedure. Such procedure is so obviously costly and unnecessary that no argument is required to show that an amendment of the Act is required in order to allow a judge alone to grant such an order. Clause 6 of the Bill deals with water court procedure; Clauses 4, 5, 7, 8 and 10 are explanatory and will materially assist the judge in carrying out the functions assigned to him under the Act. Clauses 1, 5 and 9 are the consequential amendments and require little explanation. These amendments, Mr. Speaker, have been found necessary in order to facilitate, as I have said, the procedure of the water court as well as cheapening the costs incurred. And these amendments have been drawn up, they have been requested to be put into the Act by judges who are in charge of a water court from time to time, and most of these amendments are based on their experience in regard to procedure. For that reason I believe the House will accept them The second matter to which I want to refer is the provision for the control of land irrigated by water derived from Government irrigation schemes. In the past, Mr. Speaker, there have been several ways of making use of the water derived from dams established by the Government. One was that the water was used on intensive irrigation settlements and the second method was the board schemes, under which the board applied for water and the Government put an immense amount of money into building dams and speculation was rife. Long before even the dam was built people started speculating and buying up the land. Those who speculated and others had scheduled land to be worked to a far greater extent than they could pay for, with the result that they started selling this land at an enormous price. Speculation was, as I have said, so rife that many of them made fortunes out of it, huge fortunes were made out of it. They cut up the land into very small portions, we had instances where it was cut up into two, three and four morgen, and this land was uneconomic because of its size and was sold to people who could scarcely pay for it, with the result that ultimately scheduled land which had been speculated with was driven up to an enormous price, cut up into uneconomic holdings, and in the end the Government had to write off millions and millions of pounds, as this House knows There has been hardly a Session within probably the last ten or fifteen years that Parliament has not at each sitting had to write off enormous sums of money, and to that exent the board system has failed. There are some boards which have made good, but even they have had to write off enormous sums. Under these circumstances it is difficult indeed to think that the Government after this experience in the past, will embark upon further schemes of that sort. Now there is a new method which will eliminate speculation entirely, and that is the method which is proposed in this Bill. Water will be supplied from Government dams and given to farmers and the amount of land which they can irrigate will be limited. They cannot schedule, as they have done in the past, schedule a large amount of land, more than they can afford to pay for. Now the question arises again that even with this limited amount of land the owner may cut it up into uneconomic plots and sell at a very high price, with the result that the Government might again be called upon to step in and assist these people. Now you cannot prevent the owner of the land from selling it at a high price after cutting it up, but the Law Advisers have given us this advice that in order to prevent them from cutting up the land and selling it, the Government can withhold the water from that land; and that is what we propose in Section 2. We propose to limit the land which is to be scheduled on these farms with the proviso that it is not to be sold separately. Let me explain the idea. This land is not for the purpose of speculation, of selling at a high price by cutting it up, but it is for the purpose of enabling the farmer to grow fodder for his stock, as a matter of fact creating a fodder bank to protect him from these periods of drought which we get almost as regularly as the sun rises, with a consequent tremendous loss of stock. We are taking this power to prevent speculation and to prevent the farmer from cutting up and selling this land which is given to him for the purpose of improving his own position on the farm, and to establish a fodder bank to obviate loss of stock in drought. Mr. Speaker, I say that this is a step in the right direction, and I trust the House will accept it. I move the second reading.

There are many points on which I agree with the Minister, but there are also many dangers connected with this legislation. Firstly, I wish to deal with people who already fall under irrigation schemes, who have bought ground there. Will the Bill be introduced with retrospective effect? And what about expropriation? In the case of ground falling under a scheme, the Government has the right of expropriation. Is the farmer going to have the right to place his valuation on it, or the Government?

Expropriation of what?

Of land under water. The water belongs to the State. Dams have been built with the purpose of supplying small farmers with water, for example the Buranjac Dam in Australia. There the furrows went dry. Along the furrow the people got ten or fifteen morgen each under water, and nothing more. But there the water belongs to the State. I would like to get the information from the Minister.

I am very much disappointed at the Minister coming here again with a drop in the bucket. Our original Irrigation Act was passed in 1912. Since 1912 there have been a considerable number of amendments. I have studied a number of those amendments, and I find that we have had six Amendment Bills, apart from the amendments introduced by the general Omnibus Bills at the end of the Sessions. I want to say to the Minister that I have been pleading here for years for a number of amendments. Amendments are badly needed in regard to that part of the Bill which deals with Irrigation Boards. Irrigation Boards were something new in 1912 and in 1916. We started in 1916 with co-operative irrigation, as provided for in the 1912 Act, and experience has taught us that hundreds of amendments have to be made to that part of our legislation. I quite appreciate the fact that judges of the Water Court are experiencing a lot of difficulty because the law is full of defects. Whenever there is a Water Court case there is trouble. But Water Court cases are becoming fewer and fewer because the process which has to be followed in connection with those cases is too expensive. The intention of the Irrigation Laws and Laws dealing with water was to make it possible for disputes to be settled as cheaply as possible. There was provision made for a judge to travel from place to place with a number of assessors. Originally the assessors were an engineer and a farmer. Today the one assessor is an engineer of the department, whose duties have been determined, and he has to sit on every Water Court. In the past it used to be circle engineers in every irrigation circle who would act as assessor on the court, but nowadays the assessor is a member of the department and he does nothing else but sit on the Water Court. The tariffs in connection with Water Courts are so low that no advocate and no attorney is prepared to undertake the work. Certain items in connection with the court are lower than those in the magistrate’s court. The attorney therefore will not do the work at those rates and if you want him to help you, you have to sign a document undertaking to pay him at the Hight Court rate. Now what is the position? An advocate charges at least £7 7s. per day. You will hardly ever get an advocate to take a Water Court case for less than £25. Some charge £50 and even more. A man who brings a case has to pay the extra costs and the result usually is that the costs are more than the case is worth. Consequently cases are settled on an unreasonable basis because farmers are not able to bear the expense. The poor man has to go hat in hand to his neighbour and settle the dispute, and he has to be satisfied with the crumbs off the rich man’s table. That is the position. We now realise that the object Mr. Merriman had in view when he drafted that particular Bill, has failed. The legislation has not made lawsuits any cheaper but it has made it more expensive for a man taking a case to court, as well as for the defendant. We have been drawing attention to that for a long time, and we are still urging the necessity of reasonable compensation for people concerned in a case, because if that is not done, the result must be that settlements arrived at will be unfair and inequitable. Failing that, the procedure must be simplified and provision should be made, enabling the farmers to undertake their cases themselves without any legal assistance. Because many of those disputes are only trivial, they concern the use of the furrow or the division of water and minor matters of that kind. The farmers are anxious to have a court where they can bring their cases. They are not necessarily annoyed with each other, but they want to know what their rights are. A farmer and any reasonable individual is satisfied if the courts tells him that he has no case and he accepts the court’s finding, unless of course the finding is entirely wrong, in which case he can appeal to a higher court. But what we want in connection with the Water Court is a reasonable tariff of rates—machinery must be established which everyone who feels that he is unjustly treated can use to get his rights. That does not exist today. It is no use making all these changes in our legislation, it is no use giving greater powers and providing that in the event of the one dying the other one can carry on, and so on. It may be necessary but we must first of all determine what the position is. The object with which the Water Court was set up, was to make the process at law as cheap as possible. Well, the legislation we have has not succeeded in that. What we are asking the department is why it does not introduce a new Bill. The old Act was passed in 1912. Why do not they come forward with a new measure, based on new ideas? The cost is becoming higher and higher and people find it simply impossible to get justice done. The Water Court has a certain jurisdiction. Now what is that jurisdiction? The question which is always causing trouble is whether a particular case is a water case, whether it is a case of water rights or whether the question at issue concerns a furrow. And then the question arises whether a furrow does in any way affect water rights. Not very long ago the Water Court tried a case at Goudini which cost thousands of pounds. The question at issue there was a drain. The Appellate Division at Bloemfontein eventually decided that the case should not have gone to the Water Court at all, but to the High Court. I know from my own experience how difficult it is to find out which court one has to go to, whether it is to the Water Court, the Magistrate’s Court or the High Court. Some of our most able barristers experience difficulties in that regard. One of them advised me the other day: Go to any court and let the court determine where you should take your case. A little while ago there was a case before the Magistrate’s Court at Oudtshoorn; that case had been before the High Court in Natal. The Magistrate’s Court had no jurisdiction, it was a Water Court case, but the parties had raised no objection and it went to the High Court. Well, if it is a small case there can be no objection to the Magistrate’s Court being used, otherwise the expense connected with Water Court cases may be tremendous. I don’t think I have ever been connected with a Water Court case which has cost less than £500. If you have an advocate who charges £50 for the first day and £25 for each succeeding day, one can understand how much a case like that can cost.

Is the tariff too high or is it not high enough?

The tariff has been fixed so low that no advocate will touch it and the result is that people have to pay very high costs. The lawyers, of course, have come to an arrangement in regard to their tariffs. A K.C. has to get so much per day and a junior so much. They cannot sue for their fees—so far as they are concerned medieval conditions still apply. On the other hand, however, they have a better remedy than anyone else. If a man does not pay, his name is put on the black list and no advocate is allowed to do any work for him. Water Court cases often lasts 15 days or three weeks and the costs run into hundreds and thousands of pounds. That is why I got up to object so far as this Bill is concerned, because I consider the time has arrived thoroughly to investigate this whole matter. Let us have judges and advocates who have experience, and irrigators so that the matter can be properly arranged. At one time there was an irrigation association which had been established by the late Mr. Merriman. When he introduced the 1912 Act he wanted to bring the irrigators in this country into one union to advise him as to what he should do in regard to legislation. The State paid the irrigation association a big subsidy, but unfortunately some trouble arose afterwards and the Government withdrew the subsidy and the association went to pieces. That is another point which the Minister should consider, even if it is only to bring the irrigation boards together in an association, so that he can go to them for advice—so that he can go to people with a practical experience of irrigation. They can tell him all the difficuties in regard to irrigation. They know what the difficulties are. Now I just want to mention one difficulty in regard to the Irrigation Board. This Irrigation Bill says that only where there is no system of irrigation in existence, an Irrigation Board can be proclaimed. In other words, it must be a new furrow, but there are hundreds of furrows which should fall under Irrigation Boards. Each of the parties concerned has to pay towards the cost for maintaining the furrow. It is a matter of the utmost importance to keep the furrow clean. When the furrow has to be cleaned, the one farmer may say that he has to go to a wedding and the other may be sick with the result that the Board cannot carry on with the work. They must therefore have an Irrigation Board because the individual farmers are compelled to comply with the instructions of the Board. If the Board wants to clean a furrow, it does so. If the farmers cannot get the labour the Board engages the labour and has the furrow cleaned. There is no provision in the Bill for that kind of Board. In my constituencies there are many Irrigation Boards. Under the law those Irrigation Boards are not legal, but the Government introduced a Bill and said that where an Irrigation Board had been declared illegal and it owed money to the Government, it ipso facto became a legal body; instead of providing for two or three types of irrigation boards, that was the procedure followed. There are hundreds of other things. Assuming an Irrigation Board wants to borrow a couple of hundred pounds; assuming it wants to go to the bank to borrow a few hundred pounds. Say it wants to borrow £200—it has to give three weeks’ notice to all its members. It has to call a special meeting; it has to prepare a profit and loss account, and it has to state specifically what it proposes doing. It has to carry out the whole of that procedure to borrow £200 from the bank. Well, the Irrigation Boards simply do not do it. They are in the habit of getting a loan in a much more simple way. Generally speaking one or more members of the Board sign as security and the bank lends the money on the security of that member. Often when you levy your rates at the end of the year, before the end of the tax year, a few hundred pounds are needed for cleaning the furrow; the Board may have to go to the bank then. I can assure the Minister that the Boards do not levy more rates than they absolutely have to because they have to pay those rates themselves. If they need £2,000 they are not going to levy £2,500. They would rather tell the board to borrow £1,900 and see if they cannot make that do. I feel therefore that this whole question should be thoroughly enquired into by a competent commission which can visit the various boards and which can also interview the judges and look into the whole position. The judges do not always agree. They also differ. Then you have the system which is in force in the Cape. The judge who is on the water court is also a judge of the Supreme Court. That is not so in the Transvaal. There one of the advocates is the water court judge. Here the water court judge is a member of the Supreme Court Bench, but in the Transvaal the water court judge is a barrister who is used for this work from time to time, in addition to which he also practises. The advocate is appointed for five years. One of the assessors of the water court is an engineer in the Irrigation Department. He is a public servant. He is a man just as I am and he also has his faults and his weaknesses, just as I have. Now, assuming a case is tried in which the Government is involved, and that often happens because the Government is poking its nose more and more into private land, or assuming the Government has an interest in a case, then you have two Government officials who are members of the court.

Why did they appoint a barrister?

That is a long story. The position is that the judge whom they wanted to appoint, an influential man would not accept it. He was too big. They were afraid of his influence so they passed a special law so that they could appoint an advocate as judge. There are a lot of difficulties in connection with the Act. I admit that it has encouraged irrigation in certain respects. In certain respects it has been a good law, but in 1912 a new system was started, a system such as they had nowhere else in the world. And after 3Ò years we still have the same old Act, and every now and then we have a bit of patchwork done to that Act. It is not fair to irrigation, it is not fair to the country. I feel that this whole question of irrigation must be referred to a competent commission which can enquire into the jurisdiction of the court and all the other questions in regard to irrigation. Now let us look at the Bill. The first clause says this—

Now let us see, what is the result of this amendment. Under Clause 7 of the Principal Act we have this—

“Regulations” means regulations under this act and this Act provides for certain regulations. Now the Minister steps in and says: “We are not going to do this according to regulation; the regulations stay as they are.” All we are going to do is, after the word “may” insert these words: “Subject to the provisions of Clause 7 bis” and then Clause 7 bis is inserted in the Bill. In terms of the Act they had to divide the water according to the regulations and those regulations had to be approved of by the Governor-General, that is to say by Parliament. But now the Minister comes along in Clause 7 bis, and he says that where an irrigation scheme has been constructed, he can practically change all the water rights. We should remember that the water does not belong to the State. The State has no greater say over the water than any private individual. A private individual has just as much right to the use of that water. A private individual is entitled to the reasonable use of the normal flow, and the Government, if it is the owner of the land, also has that right. Now you make a furrow and you take water out of it. You are not entitled to take out more water than you have the right to. That is perfectly clear and the old Act makes the necessary provision. But now it is proposed in this Bill that if the Government has constructed a furrow and someone above the furrow speculates in land, the Minister can say to him: “If you want to sell your land we are going to hold back the water.” Hon. members should remember that this Bill is not retrospective. If any one has Government land, he comes under this Act all the same, and the Minister if given the right to reduce the quantity of water, to which he is entitled. What right has the Government to hold back the water? The Government can only claim the reasonable use of the water, if it owns any land under the furrow. If this Bill is passed they can say: “In future you are not going to be entitled to any water if you sell your land.” Surely that is not fair. Today the water has to be divided in accordance with the regulations. Now the Government says that people are speculating in land. If a man sells part of his land the Minister may determine how much water he is to get from the irrigation scheme. I make bold to say that neither this Government nor any other Government will go to the country and write off a water rate, because the people have paid too much for their land. If the Government writes off a water rate, there must be a reason for it. They may do so because the scheme is not economic, or because it is felt that the people must be helped. Let me say at once that I do not blame the Minister for writing off anything. On the contrary if I had my way, I would write off everything. I can speak from experience. I know what it means to the State if debts have to be written off. The State benefits from it. I can give instances. Take the Bonnievale area. That part of the country looks like Canaan today, in these dry parts of the world. They have now got a dam and the value of the land has gone up tremendously. Originally those people had to pay the water rate of £4 per morgen. The Government has written off a large amount. The man who used to farm there in the past, had a few acres of land, on which he grew vegetables, and he had a few goats; today, however, you have some 300 families living there. I can mention other instances. The station at Ashton used to be a siding. There was no traffic there in the past. Today it is one of the busiest stations. The Government has written off an amount of £80,000 which immediately led to this development. But it does not mean a loss to the Government; they get the money back at once by means of excise. The value of the land today is a hundred times as much as it used to be. The land has gone ahead. There is an attorney there today. You have a doctor there, and shops and extensive railway facilities. In days gone by they only had a few thousand goats there. Today there are three hundred families living there, and the place is a second Canaan. It pays the State to pay off these amounts, because today they get the money back twice over. The scheme there is a Government scheme. After the Government had written off the debt, they went ahead in one year faster than they had done in ten years before. That is why I say that so far as irrigation and water works are concerned the Government gets such benefits that it should write of all these amounts that are outstanding today. If the Minister wants to write off, he will always have my support. The trouble is that he does not always write off enough. The Minister now takes the power unto himself to divide the water as he pleases. It is a pity that I have to quote from the Bill, but I think it will be quicker if I quote the clause than if I go into details. The proposed Clause 7 (bis) reads as follows—

1. (1) The Minister shall determine, in such manner as he may deem fit, the extent of the land comprised in every piece of land included in a Government irrigation area (as defined by proclamation under Section 98), which may be irrigated by means of water from a Government irrigation work, and shall cause to be prepared in the manner prescribed by regulations made by the Governor-General, a schedule in respect of every such area setting forth—

1. (a) A description of every piece of land in that area;
2. (b) the extent of every such piece of land;
3. (c) particulars of the title deed according to which that piece of land was last transferred;
4. (d) the name of the owner of that piece of land; and
5. (e) the extent of the land forming part of that piece of land, in respect of which water may be supplied from the said irrigation work.

If an Irrigation Board constructs a furrow and borrows money from the State, a certain procedure has to be followed. I really fail to see any difference between an irrigation scheme and a Government scheme in that respect. You go to the Minister and ask him to proclaim the area as an irrigation district. He asks the Director of Irrigation to make an investigation; the Minister can then recommend that the area be proclaimed an irrigation district. The engineer says it will cost £100,000 to construct the furrow; the Irrigation Board goes to the Government and asks for a loan of £100,000. If the State undertakes it, it also has to have an enquiry made by the engineer of the department. He has to draft the plans. His recommendation goes to the Minister who thereupon recommends the scheme. But look at the difference now. If the Irrigation Board has constructed a furrow, every owner is entitled to demand his pro rata share of the water. That is what it amounts to. He gets his pro rata share out of the furrow according to the size of his land. That man gets so many cubic feet of water per morgen. All these things are worked out meticulously. So far as the Government is concerned, the position is exactly the same, except that the responsibility for the loan rests on the Board. The Government also levies taxes, but it can also surrender that money. The Irrigation Board is compelled to treat everyone coming under the Board fairly and justly, but the Government can determine how much water a man is allowed to take. The water does not belong to the Government. The furrow does not belong to the Government. The owner is entitled to a reasonable quantity of water from the normal flow. Now the Government says that if the owner sells his land or divides it, he cannot have any water, or the quantity of water he gets may be reduced. What right has the Government got to tell me that I am not allowed to sell? Assuming the man has only one son and that son dies. The man is old and he wants to sell part of his land. The Government steps in and says, “If you sell I am going to take away your water rights.”

You cannot sell that land apart from the rest of the land.

I am talking about the land under the furrow, the land which is entitled to a legitimate share of the water. You cannot sell any of that land. The Government now takes unto itself the right to reduce the quantity of water a man can get. In other words, if you do not vote for the Government the Government can step in and say, “You used to get water for ten morgen but there is not enough water for you now, you can only get water for five morgen.” The Government can do so without giving any reasons for it. That is what the Government can do.

No, that’s wrong. You cannot sell that land separately from the farm. You have to sell that land together with the farm.

I am talking of the land coming under the furrow. The land above the furrow is not subject to rates. Only the scheduled land is subject to rates. The Minister says that you can sell it as a whole but not as a part, but what is the use of that? The man needs a fodderbank but there are many farms which do not need a fodder-bank. There are people who find they have too much land and that they cannot look after the lot. One can only work a certain amount of land intensively. If the man wants to sell a bit of land he cannot do so. He has to keep it to put up a fodderbank. If the Government wants to become Socialistic and take control over the farms, if they want to take control of the industries of the country, let them say so. I am not a Socialist, I do not believe in it and I do not believe that the majority of the people in this country believe in Socialism. If the Government takes these powers it simply means they want to control everything. In the report of the Agricultural Department they are proposing the same thing. Dr. Viljoen proposes the very same thing. If the Government wants to tell the farmers that they are to plant potatoes here, and cabbages there, and that when they take out their potatoes they must put in ground nuts let them say so clearly. We want to know it. If they want to deprive a man of his water rights because he does not want to put up a fodderbank as the Government want him to do, let him say so. I do not want to move that this Bill be referred to a Select Committee. There is too much work. A Select Committee cannot do it, but I cannot vote for the second reading. I am prepared to accept the amendment in regard to the Water Court but the other part I cannot accept. I cannot vote for such a Socialistic measure.

I want to associate myself with the hon. member for Swellendam (Mr. S. E. Warren) who has just spoken in connection with this Bill. It seems to me that the Minister is going a little too far in connection with the powers taken by him. I think there is no one in this House and outside in the country who does not feel that the more irrigation schemes we can build the more prosperous this country will be in the future, but he must not restrict the rights of the owner in such a way that these schemes will all be based on socialistic legislation. The hon. member for Swellendam read the first part of Clause (2). Let me now read the second part under the proposed Clauce 7 (bis). Sub-clause (2) reads as follows—

It is not stipulated here whether the reduction will take place when there is a drought, or when there is not a sufficient supply of water. There may be cases where it is necessary to reduce it. But as this clause reads the Minister has the right to say: “You have so many morgen of land; at the moment you are getting so much water. I am going to decrease it.” He might say that, although there is sufficient water. That is my objection. If the Minister takes that power because there may be special cases where it will be necessary to decrease the quantity of water, I would raise no objections. Let me take my own case. In my own case the Minister was good enough to grant me certain lands. For thosè lands I get a fixed quantity of water. I do not think he will reduce it if there is sufficient water. I say therefore that if it is the intention of the Minister to reduce the quantity of water in certain circumstances when it is necessary, I cannot object to this clause. If that is the Minister’s intention, I shall not say another word on that sub-clause. Now I come to Sub-clause (3). That reads as follows—

Here my difficulty is this, as mentioned by the hon. member for Swellendam. A person may become old and he may no longer have any inclination to carry on with his farming operations; or he may suddenly become ill and be compelled to give up farming. Now the Minister says that he can sell the farm, but that portion which is scheduled must be sold with the whole farm. He is not allowed to sell it separately. It seems to me that the State is making too big an in-road on the private rights of the owner. It seems to me that today there is no longer such a thing as private property rights in this country. The Minister now states: “Even though I have allowed you this water, I will not allow you to sell your farm unless you sell the whole of it. You cannot sell a portion, otherwise this potrion in respect of which I granted water will fall away; it will no longer form part of the area to be irrigated by means of water from the Government irrigation work.” I take it that that would be reasonable if there is insufficient water, if the Minister feels that it is necessary for him to reduce the quantity of water. If in that case the people sell the land, I can well understand the Miniser feeling that it is necessary to reduce the scheduled land so that that water may flow down to the owners lower down; there again it is a special case which I would be prepared to overlook, because I would feel that it is the Minister’s intention to help those people. But simply to come along and stipulate that you have the right to take away the man’s water rights because he wants to sell a portion of his land, is very far-reaching. He is the owner of the land, but now the Minister comes along and says: “I am the master of that land; you do not count.” The Afrikaner people are very proud of their property rights; the Afrikaners are very proud of their farms, and if you tell them that in the future they will not be allowed to do as they please with their land, the Afrikaners will take the strongest exception, and those things will not be tolerated. I say again that I do not want to raise unnecessary objections. If the Minister is of opinion that it is absolutely necessary and if he can satisfy us on these few points which we have raised, I shall place no obstacles in his way. But we would like the Minister to satisfy us on these points which we mentioned. I do not want to go into the other points in connection with the Water Court. Those are legal issues and I leave them to the lawyers. I hope, however, that the Minister will take these points into consideration with a view to seeing how far he can meet us.

There are in particular two points in connection with this Bill which I want to raise. The first one concerns subsection (2), which gives the Minister the right to reduce the quantity of water allotted to the various plots.

Not to reduce the water.

To reduce the irrigable land. That amounts to the same. The area is reduced. A person may originally have received water for 10 morgen. The Minister can now say that he will receive water for five morgen only and that, therefore, amounts to the same.

The soil may be becoming brackish.

If the Minister says that an irrigator can apply for the reduction that would be quite reasonable and fair. If the section were to read that the irrigable area can be reduced at his request, it would be a reasonable and fair provision, but it does not read like that. It reads that the Minister can arbitrarily say that the irrigable area is to be reduced from 10 morgen to 5 morgen. I hope that when we get to the Committee stage, the Minister will be prepared to accept an amendment that the irrigable land can only be reduced at the request of the irrigator. My following point is in connection with subsection (3). I must honestly say that I cannot see that this is a reasonable and fair provision, as it affects the existing rights of the people. This does not concern something which will be granted to them in future. It concerns rights which the people already possess and it is unfair to take away those rights in this manner. There cannot be the slightest doubt that this is tantamount to the expropriation of rights without compensation. If a person sub-divides his land and sells part of it, his full right to water is denied to him. That means that the man’s rights will be expropriated, and I should like to know why it is being done in this roundabout way. Let us rather be honest and say definitely that the man can sub-divide his land with the consent of the Minister only and that he may then sell part of it. Why should it be done in this round-about way? Let us state clearly that when a person sub-divides his land and sells part of it, his water right will lapse. Then it will mean that his land becomes valueless and that means really an expropriation of his rights, The way matters are being done through this section is not an honest one and it is not fair towards persons who already possess those rights. If this is to be applied in the future, something might be said in favour of it, for then the people know on what conditions they are acquiring the land. But where persons already possess their rights, I cannot see what right we have to take their rights from them in this manner. It may be a piece of land which can give a living to two persons. Even in these circumstances no division may take place. Provision is not even being made for the Minister giving his consent. In view of the intensive farming we are now developing in our country, it may be possible that people can find an existence on a small piece of irrigable land. The land of a man may be sufficient to guarantee an existence to two persons and why should that right be denied them? Even the Minister is not in a position to give his consent for such a subdivision. I do think it is neither fair nor honest to proceed in this way. Instead of declaring that the Minister will give his consent when necessary, a person’s rights are simply taken away from him by this measure. I furthermore want to say that it is a great pity that whereas the original Irrigation Act was passed as far back as 1912 and we have had all these years of experience of the operating of the Act, we cannot get a proper consolidating measure before Parliament. There have been many court decisions in regard to dubious points in the Act, with the result that we know more or Jess what the trend of the legislation is, and we therefore circumscribe these points correctly. Here we are again faced with a Bill which is only patchwork instead of a consolidating measure. I should like to quote one or two points of the original Act for which provision should have been made in this Bill. One concerns the composition of the water court. The hon. member for Swellendam (Mr. S. E. Warren) already pointed out the position in the Transvaal is that the judge of a water court is appointed by the Minister of Irrigation. I do not want to criticise him in any way. The person appointed is an excellent man for the job. But the fact remains that he is a judge who has been appointed only temporarily by the Minister of Irrigation.

He sits there so to say as a temporary official of the Department. He owes his existence and his position to the Government. He appoints his assessors, one of whom usually is an engineer of the Department.

No, the Minister appoints the assessors.

That makes matters worse. The Minister appoints them and one of them usually is an engineer of the Department. Take the cases coming under this Bill. If difficulties arise, the Department of Irrigation will be mixed up in most of them and then the water court will consist of a judge appointed by the Minister and assessors who have also been appointed by the Minister. What hope does the unfortunate farmer have in such a court. One wants to have the highest respect for a court at all time and one does not want the court to be made subject to criticism of partisanship. I do not want to say that the judge is partial but he is going to be subject to criticism. He is being appointed by the Minister; the Minister appoints the assessors, and nobody is to be nominated by the farmer and it is not fair to expect that there will be confidence in such a court. I want the position in the Transyaal to be the same as that in the Cape. Appoint a judge as a permanent ordinary judge and let him take the cases of the water court. Then he will not be dependent for his appointment upon the Minister of Irrigation who often is interested in these cases. Such a judge will then feel that the same as any other judge, so that he can give any verdict he wants and nobody will be able to criticise him or to harm him as a result of such verdict. Then the public will be able to have confidence in such a court. Furthermore there is a very important point concerning a matter in which one of my clients was concerned. I mention it here as similar cases may crop up again. When an irrigation district is brought into being, the farms falling in the district are surveyed and the amount of irrigable area to which every farm is entitled is determined. A water levy is then fixed for that irrigable area. An irrigation work is then called into being and it may be found that there is not enough water for all the land. The irrigation works at Middelburg were meant to irrigate farms on both sides of the Olifants River. The farms were surveyed and to each farm a certain irrigable area was allotted. Afterwards when the scheme was put into effect and the water was taken out it was found that it was impossible to get water on the Pietersburg side with the result that only the farms on the Middelburg side could be irrigated. In other words the farms on the Pietersburg side could not obtain a drop of water, but the Act makes no provision that the farmers who come under the scheme, even if they do not get any water on their land, need not pay the water levy on that land. This is most unfair. Those farmers had to go to the Supreme Court to prove how unfair this was but the legal position nevertheless remains the same. We may have a recurrence of the identical circumstances. I quote this to show what a pity it is that we cannot have a consolidating measure in order to fill in all these gaps in our legislation. This was a most serious case and if it had not been for the fact that a two-thirds majority could be obtained for the exclusion of that area, those people would still be paying the tax today and in that case they might just as well have given their farms away, for who is going to farm on a farm which is subject to a water levy when no water for irrigable land can be obtained. One would not even be in a position to give away such a farm. This may be a point which still can be dealt with under this Bill. With these few remarks I wish to express the hope that the Minister will give attention to the points raised by us when we reach the Committee stage.

In the first place I want to emphasise what the hon. member for Pietersburg (Mr. Naudé) said in connection with the position we get with the type of Water Court which is appointed nowadays. I want to give the Minister a practical example. He will remember the case at Fauresmith in connection with the Kraaipoort scheme. A Water Court sat in Fauresmith. Photographs were exhibited in court of the water when the river was in flood. The court held an inspection in loco, but because they are officials of the Government, those people did not believe their own eyes and they gave judgment in favour of the Government. The advocates in the case alone drew £900.

In another case they gave judgment against the Government.

We are dealing with this matter at the moment. What was the result? After the dam filled up they could no longer dispute the position which the owners had put to them, with the result that the Government had to pay those people additional compensation. A great deal of unnecessary expense was incurred and that was done because we did not have a court which was entirely impartial and which did not have to look to anyone else. The hon. member for Swellendam (Mr. S. E. Warren) indicated that the Irrigation Act, as it exists, is full of defects. The Minister will not deny that. Now the Minister comes along with this Bill today and he wants, to avoid an evil which he fears. Very well, we agree with that intention on his part. But in regard to the manner in which the Minister proposes to do that, we feel that he is not only going to obviate the evil, but he is definitely going to deprive the people of established rights. The Minister is shaking his head. I want to put this question to him. Assuming I have a farm of 1,250 morgen under a scheme, and that 50 morgen is under irrigation. I have two sons and I want to give each one of them 25 morgen of irrigable land with a portion of the outlying veld. But now the Minister says that I cannot do so, and if I do so I lose the water which I am allowed for 50 morgen. Will the Minister deny he is making an in-road on established rights? I say that we agree with the Minister where he attempts to prevent speculation, but he must not, in order to prevent speculation, encroach on the established rights of people in this manner, because the Minister must realise that it will definitely have the effect of reducing the value of the people’s land. If we go into the irrigation laws of this country, and not only the laws, but if we go through the country and look at all the irrigation schemes which exist, we can come to no other conclusion than that this House cannot wait a single day, and that the time is overripe for the introduction of a Bill which will be solid and which can be drafted in the light of the experience which we have had since embarking upon irrigation schemes in our country. Everywhere we find enormous and flagrant examples of defects in the irrigation law, which makes us wonder whether it is possible for such things to happen in our country. We have an Irrigation Department which is responsible, and we have a Minister who ought to be responsible, not only for his portfolio but also for the money of the State. Take the latest scheme which has been constructed. The Minister will agree with me that certain things happened in connection with that scheme which never should have happened. I take it for granted that if the present Minister had perhaps been Minister of Irrigation long enough, those things would not have happened. But we cannot rely on persons, and I say therefore that we want an Act which will determine how the schemes must be constructed, what initial work will first have to be done. Here the Minister wants to prevent speculation, but he is going to prejudice the people who possess the land, and who honestly want to farm in the best way. Have we not had striking examples of speculation under the schemes which were constructed by the Government of recent years? In connection with the scheme which I have already mentioned, we know that the Government has already bought land from the same man on two occasions. The man sold land to the Government where the dam was going to be built. The department built schemes, but they have no plans as to how to lay out a scheme. They simply build the wall and they do not even know where the furrow is going to be laid out. They allow this man to go and buy of the best land under the scheme at a cheap price. Then the Government comes and buys the land which is useless from an irrigation point of view under the scheme. It was sandy ground, not suitable for irrigation, and the Government paid an enormous price for it. I do not know whether it was done because the owners of the land bear a good name. The Government could not make use of that land. The official of the department who was sent there simply refused to use the land. He said that the land was so bad that other ground on the river could be used to put on the land bought by the Government as fertiliser. The Government was compelled, in order to make a success of the scheme, to buy other land and also the land belonging to the farmer I referred to, and at what price? The Minister knows that it was a scandalous position. I know that the Minister tried to go against the transaction. The farmer had paid £6,000 for the land. The Minister tried to get it at a figure of £15,000, but he did not succeed. Then the case was taken to the Water Court and in this case the Water Court decided against the Minister. The Water Court had no option in view of the fact that the Government had paid an exorbitant price for useless soil. Finally the Government had to pay £24,000 for the land. That goes to show how things are done in our country as far as irrigation schemes are concerned, because the Act does not answer its purpose. The Act has to lay down specifically what preliminary work should be done before a scheme is commenced with. I want to put another question to the Minister. In reply to a question by the hon. member for Cradock (Mr. G. F. H. Bekker) the Minister said that the Bill would not be retrospective. Does that mean that it will only apply to schemes which will be built in future?

It will apply to Government schemes in existence and still to be built.

Therefore it will be retrospective?

Yes.

There we have it. Just now the Minister denied that. Is it right to come here and to submit a Bill which will be retrospective in its effect? It means that people who have gone in for such a scheme and have bought land, possibly at a high price, and who have already divided up the land provisionally among their children, now are informed by the Minister that they are now allowed to do so, because this Bill is retrospective in character. An injustice is done to those people. I am prepared to support the Minister when he desired to prevent speculation, but when he comes here and interferes with the established rights of people, we cannot agree. But the Minister goes even further and he says in this Bill that any piece of land which is given out to a man has to be circumscribed. What is going to be the scale? We have to lay that down, because the position at present is unbearable. A man has a farm of 3,000 morgen under a scheme. Let us say for argument’s sake that he receives 25 or 50 morgen irrigable land. His neighbour has a farm of 400 morgen, but it has been divided up into four plots and he hold separate transport for each plot. It means that that man will have 200 morgen under water, whilst the owner of the big farm only receives 50 morgen under water. We cannot tolerate such a state of affairs. Does not that amount to speculation? If you talk of speculation, this is speculation. I agree with the hon. member for Swellendam that the more you investigate the Irrigation Act, the more you come up against inequities. If you examine this Bill, you come across one difficulty after another. If you visit irrigation schemes which have been built and you observe what is going on there, you discover the biggest scandals ever perpetrated. I am prepared to admit that the Minister tries to rectify certain matters under this Bill, but he does not succeed, because where schemes are built, speculation on a big scale is allowed under the existing Act. I therefore appeal to the Minister. We know that he has the courage to do things. Let him show courage now and introduce a Bill into Parliament which will meet the requirements of irrigation in South Africa.

I welcome the Minister’s proposal to give farmers water on their farms so that they may have a so-called fodderbank. It is a very good idea. It will make farming more stable, and the farmer will be able to rely on irrigation during times of drought. But then we come to the question of the supply of water. I understand that the Minister wants to prevent speculation and I think that any farmer of any standing, and who has the commonsense, will not want to sell land which is under irrigation and only retain the dry part of his farm. There may be exceptions, for some reason or another. Assuming a man has part of his farm under water and he decides to sell the dry part because he sees an opportunity of making a good living on his irrigable land. Will the farmer in a case like that be deprived of his water? We know that he sells the irrigable land he will under the Minister’s proposal lose his water, but what is going to be the position if he sells the dry part and keeps a part under irrigation? I am only asking and I hope the Minister will reply. There is another question I want to raise. Assuming a farmer sells his irrigable land. He loses his right to water under the scheme. Will he still retain his rights as a riparian owner? That is to say his right to the permanent flow so that he can pump it out of the river and use it? It seems that this Bill is a double-edged sword and we want to know where we stand. No provision is made for the case where a man sells his dry land if he sees that he has sufficient irrigable land and I should like to know from the Minister what the position is. Even in the event of sub-division among heirs this Bill will cause trouble.

I just want to put a question to the Minister in connection with the appointment of an Advisory Board at Olifants River. The Minister was asked whether he would take steps to appoint an Advisory Committee, and the Minister replied in the affirmitive. In my area this is regarded as an urgent matter, and I shall be glad if the Minister will give us the assurance that that committee will be appointed, and if he will tell us when it will be appointed, whether it will be in the near future. The Minister may not be aware of the fact that the irrigators are greatly perturbed about this matter. They would like to arrange their own affairs, and they think they can best do that through their own advisory committee. They have no ulterior motives in making this request. It is purely and simply to arrange our water supply in such a way that more effective use can be made of it. Then we also feel that irrigation is a national matter which has expanded tremendously during repent years. We feel that South Africa would be poor if there were no irrigation schemes. We have these beautiful rivers, these permanent streams, and only a comparatively small percentage of this water is saved for our fatherland. We feel that the greatest portion of those vital streams are not being used to give lifeblood to South Africa. We are privileged in having those streams, and we feel that active steps should be taken to undertake bigger schemes in South Africa. Who is not proud of the Vaal-Hartz scheme? It raises the water level. We are exhausting the water supply with windmills and boreholes and otherwise, but there are no undertakings to keep the water level high. It is getting lower and lower. Water experts say that the water level is falling tremendously because we keep on exhausting the supply. The irrigation schemes have this advantage that they bring water to the surface. They are national assets. They provide work for thousands and give thousands of people a decent living; they give the people an opportunity to acquire independence and to become producers. We realise what a tremendously big national asset irrigation is. Not only does it bring water to the surface, not only does it conserve the water supply, but to a certain extent the dammed up water flows into subterranean channels; and that again brings to life scores of fountains which had ceased to exist. The water level is raised. In numerous cases we have had the practical experience that the old fountain below such a dam is brought to life again. Even those parts which do not fall under irrigation have benefited as a result of that. The Minister must give serious attention to the question of damming up water in the Orange River bend, so that two rivers will flow deep into the heart of the country, on the northern bank and on the southern bank. That will be an even greater scheme than Vaal-Hartz. It would be a wonderful national undertaking. As these undertakings grow one also gains control of flood waters which may cause great damage and loss on the banks of the rivers. We know what it will mean, apart from all the other advantages. I want to ask the Minister whether he has given his attention to this matter; whether he has already considered plans to tackle the great task of damming up the Orange River. It will mean that thousands and tens of thousands will be able to make a living. I hope the day will not be far distant when the Minister will tackle this wonderful undertaking, whereby an enormously big area, even in the North-West, in Bushmanland, will be irrigated. On the other side it will be possible to bring the water down to Kimberley, to the wonderful low country which has such good ground.

This scheme is not under discussion.

Thank you. I only threw out the suggestion. I now come to the provisions of this Bill. The existing schemes are great assets to the country. When we consider that these schemes have provided employment to many thousands of people, that they have increased the productivity of the country, we realise what a great national undertaking it has been. Since it has been such a great success, we must be careful not to undermine these wonderful undertakings which have already cost the State so much money. Your aspirations may be too high. I want the Minister to picture a fine road. Although the road is excellent there are two ditches alongside the road. If you are in too great a hurry you may land in the ditch. If the Minister continues to impose these restrictions on irrigators, he will land in one of the ditches alongside the road, and wreck the wonderful work which has been done.

I am an irrigator myself.

Yes, but not a small irrigator, because in that case he would have sympathised with us. The Minister is a very big irrigator, and he is able to work with big capital, whereas we cannot do so. Our existing irrigation works are not only assets in providing work and in increasing production, but they are also assets in connection with our rainfall. It promotes rainfall, it extends vegetation and raises the water level. There are still great possibilities awaiting development. When we come to the prohibitive provisions of this legisatlion, we find that it discourages the undertaking of schemes. Irrigation is not an easy matter. It is not an easy undertaking. It is the most difficult of all farming. It requires endless exertion. The irrigators under the irrigation scheme are already struggling with a shortage of labour. You cannot keep coloureds or poor whites there. The work is too arduous.

Which clause is that?

I just want to point out to the Minister that the irrigators have enough trouble as it is. He must not try to impose heavier burdens on them. These prohibitive provisions in regard to the sale or division of land, are burdensome. I for example, have two children, and I have a piece of land under irrigation. I would like to divide that amongst my two children.

At 6.40 p.m. the business under consideration was interrupted by Mr. Speaker in accordance with the Sessional Order adopted on the 25th January, 1944, and Standing Order No. 26 (1), and the debate was adjourned; to be resumed on 26th April.