Mr. Chairman, I move the following amendments—

1. (1) On page 3, in line 8, to omit “by birth or descent”;
2. (2) on page 3, in line 9, after “control,” to insert:

If these amendments are accepted the proposed new section 44A will read as follows—

And the rest of it as it stands. By deleting the words “by birth of descent” this legislation will apply to all aliens—people who are in possession of temporary or permanent residence permits—but will not apply to South African citizens by naturalization. The second amendment brings in the question of the prison sentence being a prerequisite before the provisions of this clause come into being.

It is the feeling of this side of the House that the main intention, as stated by the hon. the Minister in his Second Reading speech, is not properly conveyed in the Bill itself. If we look at the hon. the Minister’s Second Reading speech, we see that he said the following (Hansard, 28 February 1978)—

That is quite correct. The hon. the Minister said further—

We do not find any fault with that at all. The hon. the Minister then explained the matter by saying—

We find no fault with that statement at all and we do not find any fault with that motivation at all. The fault that we do find is that the main thrust of what I have just quoted is taken even further in the Bill, because into the ambit of the Bill is brought South African citizens who have become naturalized. We have to state at least once during this stage of the Bill our attitude to currency offences. We are in agreement with the hon. the Minister when he says that these are very serious offences. We are in agreement with hon. members opposite that people who contravene the currency regulations, who commit economic sabotage against South Africa, should be dealt with in the most stringent manner. There is a very clear case to be made out for stronger and better law enforcement in so far as currency offences are concerned. Although it is not necessarily within the purview of the Department of the Interior, I stated in the Second Reading that if higher penalties were brought to bear against such persons—imprisonment, for instance—that the hon. the Minister of Justice, should he introduce such measures, would find support for them on this side of the House.

We also believe that aliens who commit these offences forfeit any right to be in South Africa and that they, if they are on a temporary permit, for instance, can expect, apart from the penalties which are prescribed by law for ordinary South Africans, to be deported as well. People who have not opted to take South African citizenship and who have lived in South Africa for a long time on permanent residence permits, should, if they commit offences and are found guilty, also be liable to deportation from this country because I believe they have forfeited their rights to remain here. However, we do draw a distinction. The distinction is drawn at this point, that if a person has come to this country and has acquired—by the passage of time, or by application—the citizenship of this country, such person is our asset and in cases of misdemeanour he is our problem. I also stated that during Second Reading. We believe that by incorporating this extra penalty, which is an extension of an existing principle—the extra penalty of deportation—we are in fact putting upon the head of such person the double penalty, which does not apply to other South African citizens. It is our view that all South African citizens, whether by naturalization or by birth or descent, should be subject to the same stringencies and penalties of the law. Therefore, when the hon. the Minister wishes to extend the provisions of this clause to citizens by naturalization we cannot agree with him.

The second amendment brings into the letter of the law the view that small offences are not meant to be included. The hon. the Minister has already said that he has a discretion. He has already stated that it is not his intention to use this provision to put out of the country people who have been found guilty of minor offences. It appears that, in the spirit of the legislation, it is not intended to use this clause against minor offenders. In fact, minor offenders can already be dealt with in terms of the existing legislation. If you look at section 19(3)(d) of the Citizenship Act, you will see that there is precedent for including a prison term within the scope of this provision, thus allowing people who have not been sentenced to a prison term for minor offences not to be considered under this clause. In section 43 of the principal Act, which is now being amended, we have the situation that it cannot be applied except and unless a prison sentence has been imposed. By asking the hon. the Minister to consider this amendment, I believe that we are bringing into the letter of the law that which the hon. the Minister has already stated in principle, i.e. that it is only offences which attract prison sentences of a year or fines of R600 which will cause offenders to come under consideration. I hope the hon. the Minister will consider favourably the amendments I have moved.

Mr. Chairman, the hon. member for Sandton now piously moves these two amendments. But we cannot consider these two amendments in vacuo. We must take into account that the hon. members of the official Opposition also opposed the Second Reading of this Bill. Nor can we neglect to take into account the mealy-mouthed sentimentality which the hon. member for Johannesburg North expressed during the Second Reading debate. In other words, we must now consider these two amendments against that back ground. We must consider them against the background of the attitude displayed by those hon. members in respect of the legislation before us. If we keep in mind what the hon. member for Durban Central said during the Second Reading debate—with which we agree 100%—namely that citizenship is not a right, but a privilege when it concerns naturalized South Africans, then there is absolutely nothing wrong with the retention in the legislation of the provision in respect of naturalized South Africans. I want to repeat what I have already said in my Second Reading speech, namely that we would be more than naïve to close our eyes to the facts of this type of offence and if we were not to make provision that naturalized citizens may in appropriate circumstances be deprived of their citizenship. The hon. member for Koedoespoort also told the House during the Second Reading debate that this kind of provision also occurs in the legislation of other countries and that it was by no means an exceptional provision which we are now trying to insert in this legislation.

But, Sir, now the hon. member for Sandton again comes up with the hackneyed argument that all citizens should be treated equally. I am not going to be drawn into a discussion of that, but it is a fact I want to put on record that one cannot act in respect of born South Africans, in the same way as one can in respect of naturalized citizens. I leave it at that. If the hon. members of the Official Opposition imply that they do not know what I mean by that, I refer them to their usual advisers, who will surely be able to advise them what the difference is in this respect.

As regards the second amendment which the hon. member for Sandton has moved, it is a fact that if we were to agree to this amendment, then by means of this Bill we should be involving our courts in politics. What this would then amount to would be that a judge, having tried and convicted a person of currency smuggling, is faced with an exceptional problem: that of determining what the nature of the sentence must be. By the sentence which he imposes, he will place the person concerned within or beyond the scope of the legislation. In other words, if, for example, he imposes a fine of R599, the legislation will not be applicable to him, but if he imposes a fine of R600 or more, the legislation is applicable. That would create an untenable situation.

But that is the case in many other laws.

It may be the case in other laws, but here we are dealing with a situation which is par excellence one which must be administered or controlled in accordance with the administrative discretion of the Minister, who may have at his disposal specific information which was probably not disclosed at all in the course of the judicial process in court. The judge cannot, after all, judge on the grounds of circumstances which possibly had nothing whatsoever to do with the trial of the person and for that reason the judge is not in a position to pronounce judgment on that by way of sentence either. However the circumstances in question may well be known to the Minister. My argument is that we are dealing here with a situation which lends itself pre-eminently to administrative action by the Minister in accordance with the information at his disposal. That action must follow after the person has already been convicted in a court of law on legal grounds.

I conclude by saying that we cannot agree to the amendments. I have no objection to the Bill as printed, and I also do not think that anybody else could have well-founded objections.

Mr. Chairman, I rise to indicate to the hon. the Minister that having supported the Second Reading of the Bill, we feel that if we should accept the first amendment of the hon. member for Sandton, the whole purpose of the legislation would be virtually of no avail. In any case, if the words “by birth or descent” should be deleted and the provision should only be applicable to aliens who have permanent residence in South Africa, there are already provisions in terms of which those persons could be dealt with in order to punish them or to deport them. For that reason we feel that we cannot support the first amendment.

In so far as the second amendment is concerned, I do not feel inclined to have myself tied down to exactly 12 months or to R600. What is important, is that the Minister should have a discretion. In terms of the amendment that discretion will be retained since the relevant words are “imprisonment … or … a fine”. The Minister will therefore still be able to exercise his discretion. We are not necessarily tied to the idea of 12 months or R600, but I should like to say that the amendment seeks to introduce some kind of guideline. Whether it should be six months and R300 or 12 months and R600 is something which the hon. the Minister should consider.

Mr. Chairman, before the hon. the Minister stands up, I should like to react to one or two points made. I should like the hon. the Minister to consider those points. The hon. member for Mossel Bay offered a few arguments and he said that this sort of penalty, the penalty applicable to naturalized citizens, applies in many Western countries. I think that is what he has said.

I said, “in other countries”.

However, I do not think that it is in dispute. I do not think that the question of the application of these laws in other countries has been raised by us at all. I do not think, however, it is incumbent on this country just because such laws are to be found in other countries, to have to follow that precedent. During this session—in fact, during every single session I have attended—this Parliament has taken a line on matters, regardless of outside world opinion, regardless of laws applying in other countries. I do not think that that is a consideration at all. The hon. member also went to great lengths to show that this was not a new precedent and that it already applies in existing legislation in other spheres. That is of course quite correct. I think that that was pointed out by members on this side of the House at the time when the Second Reading was debated. The point is, however, that it is not a question of whether there is a precedent for this, but that it is a question of whether the basic principle underlying the precedent is correct and whether it is correct to extend that principle further. Our argument is not that there is no precedent for this, but rather that we do not like the basic principle and are opposed to its extension.

The hon. member for Mossel Bay also made a bit of play about the period of imprisonment in terms of the amendment being 12 months and the fine R600. He said that this was an artificial norm and asked what would happen if a man was fined R599. Well, Sir, I think you will find that in many of the Acts passed by the House a figure is set which is considered as being reasonable, or otherwise, and which establishes a norm. If one has laws and there are penalties for the contravention of those laws, those penalties have to be prescribed in some way. Somewhere a norm has to be set. In this regard I am not adamant. The amendment does not reflect any adamant attitude on the part of the House. If the hon. the Minister says the fine should be R300, R700 or R1 000 and that the imprisonment should be for six months or a bit more or less, it is not going to make a difference. It is the principle of having a bottom floor to the Minister’s discretion that is at stake.

I must say that a fine of R600 in respect of a currency offence is in fact a very small fine. As the hon. the Minister will know, when people commit currency offences, the financial retribution which, upon conviction, is exacted by the State for the commission of those offences is usually a lot more than R600, as a result of which the bottom floor I have set in the amendment is a very low one.

The hon. member went on to say that he thought it was correct that there should be this discretion on the part of the Minister and that the Minister in any event has a discretion. I think the hon. member will concede that over the years every Opposition in democratic Parliaments has always felt that an extension of ministerial discretion is contrary to the principles of democracy and that, where possible and where reasonable, the discretion of the Minister in matters affecting people should in fact be limited. In any event, the second amendment does not destroy the discretion of the Minister. All it does is to create a bottom floor—I think that the norms that have been set in the amendment are very low—in order that the very minor offenders cannot be acted against by the Minister. Thereafter, the other offenders are still within the jurisdiction of the discretion of the Minister. Therefore I do not think that the arguments that have been put forward against the amendments have that much weight and, although the hon. member for Mossel Bay is a member of the hon. the Minister’s own party, I would ask the hon. the Minister please to disregard that rather ill-conceived argument and to give positive consideration to the arguments put forward by this side of the House.

Mr. Chairman, I think the hon. member for Mossel Bay was quite correct in saying that the Official Opposition’s entire argument in favour of the two amendments which they moved, is aimed at emasculating this Bill by means of the amendments, at making it absolutely powerless and removing the pith and marrow from it so that it may just as well be scrapped, since they decided during the Second Reading to oppose every principle contained in the Bill. [Interjections.] This is true. If it were otherwise, one could probably just as well have taken action in terms of existing legislation.

Mr. Chairman, may I ask the hon. member a question?

No, I am not prepared to reply to questions now. Let us now analyse the amendments moved by the hon. member for Sandton. He comes here and says very piously that they would not have had any objection if the hon. the Minister or the Minister of Justice had asked the House for more severe sentences for contravenes of exchange control regulations. At the moment there is no limit to the sentences which may be passed, except that the death sentence may not be passed. We have quoted cases in this House where fines of up to R18 000 and more were imposed. Cases were also quoted of people who received up to 15 years imprisonment. How much heavier could we have made these sentences? I can tell the hon. member what we could have done. We could have done one of two things or we could have done both: We could have provided that the death sentence could be imposed in certain cases of the contravention of exchange control. What would have happened in a case like that? The first person who would have objected to it—and the whole party on that side would have supported her—would have been the hon. member for Houghton. They would have objected if we had introduced the death sentence. [Interjections.]

They would have become hysterical.

That hon. member is quite right, because that hon. member became hysterical at the mere mention of it. What is the alternative? We could have compelled the courts to impose a minimum sentence. What would have happened then? I can already say that the hon. member for Johannesburg North, in any event, would have objected to it—and rightly so. I do not think he would approve of an unnecessary withdrawal of the discretion of the courts as to what is a suitable sentence. That is why I say that all the talk here about heavier sentences and more drastic sentences are not relevant to the argument.

The other argument which the hon. member raised, concerns the deletion of the words “by birth or descent”. That hon. member says that any person who is a citizen of this country, whether by birth, descent, registration or naturalization, should be treated equally by the law. This is his argument. We have already argued during the Second Reading about the fact that this is a well-known recognized principle, not only in other parts of the world, but in our country too, and in the present Act in particular. This is the principle around which section 43 revolves in the principal Act. It is stated in the principal Act, and why does the hon. member want to undo it now? That is the first question. Now I come to the second question. That hon. member says that we cannot now tell these people that they are bad people and that they must go. However, I want to tell that hon. member: When these people applied to obtain citizenship by means of registration or naturalization, we selected them. This country selected them by means of a specific process. We also asked them to swear an oath of loyalty. Surely it is possible for the State to tell such a person on a later occasion that it has become apparent that we made an error of judgment. We can say that we made a mistake on the day they were chosen and that they are undesirable persons.

This immediately brings me to the next point I want to make. I want the hon. member for Durban Central to listen now too, because if I understand him correctly, he supported the second amendment, or a form of it.

Slightly.

Yes. If we were to come to the stage at which someone was fined or imprisoned—say for two or three months—and we were to say that this did not count against him and that he could therefore stay here, we would be violating a very important principle contained in the present Bill and in the principal Act. This is that apart from the conviction which is required or the sentence which is referred to in clause 43, the following provisions appear in the Bill—

One cannot separate the case from this provision. It does not matter whether a person is given a fine of only R25. Due to the circumstances in which he committed the crime, he may appear to be an undesirable person to the Minister. We dare not limit the discretion of the hon. the Minister, and therefore the State, to that extent, because then we would also be watering down the Bill, as it is here.

For these reasons, I think that the arguments which have been advanced cannot change the cardinal point, the principle which has already been agreed to during the Second Reading. If we were to accept that, we could just as well throw the whole Bill overboard.

Mr. Chairman, we have discussed the two matters which the hon. member touches on here, by means of his amendment, extensively during the Second Reading debate. The hon. member will grant me this. He will also concede that in my reply to the Second Reading debate I indicated that I am very determined that the two principles contained in the legislation be maintained. Of course, what the hon. member’s first amendment amounts to—this has already been said—is that persons who are South African citizens by registration or naturalization should be excluded from the workings of the legislation. I want to emphasize one matter very strongly. The Official Opposition put very strong emphasis on the fact that the naturalized person is much worse off than the citizen who is a citizen of the country as a result of birth or descent. There may be some difference, but in this regard I want to bring an additional aspect to the attention of the House. In this regard I have in mind the fact that as far as a South African citizen is concerned, the person who is a citizen as a result of birth or descent, i.e. the person who I cannot deport—there is another important penal measure, apart from any fine or imprisonment which a court can impose. This important penal measure is at the exclusive discretion of the Minister of the Interior and amounts to the fact that he can withdraw the passport of that South African citizen.

I want to declare very straightforwardly here today that the Government considers this class of offence in such a serious light that in future, in my capacity as Minister of the Interior, I will very seriously consider withdrawing the passports of such citizens in all cases of serious contravention of the legislation, concerned. If this additional penalty which is imposed on the South African citizen who is exempt from being deported, is taken into consideration, there may still perhaps be a small difference between the two groups of citizens, but then that difference between the two groups is considerably reduced. Therefore, I cannot accept the first amendment of the hon. member for Sandton. We have already discussed this matter ad nauseam, and therefore we must simply agree to differ. The hon. member’s second amendment concerns a matter which has been discussed at equal length. In the course of the Second Reading debate I pointed out that particularly high fines are imposed for this offence. Fines of R10 000 and more have already been imposed and fines of between R5 000 and R10 000 are fairly commonplace. Therefore, I can deduce from those heavy fines that the judges who impose those fines, consider this type of crime in a very serious light in any event. It is not for me to say why imprisonment is not imposed. I do not want to interfere at all with the administration of justice. However, as far as my department and the Government are concerned, a heavy fine is sufficient indication that it is a serious crime and that it should be additionally punishable by deportation.

I think hon. members are underestimating the discretion which will be vested in the Minister in terms of the legislation. I have already exercised this discretion in cases where humanitarian considerations were present and where the offence was not a major one, in order to stop people being deported. As I have already indicated, I shall do so again in specific circumstances. I will treat the small operator with compassion.

Hon. members will have to accept that I cannot accept the second amendment either and that I shall exercise my discretion to be lenient in certain cases.

Mr. Chairman, I am in agreement with the hon. the Minister that we are going to have to agree to differ on the two amendments. However, I do not want to discuss the amendments specifically. I would like to react to what I regard as almost being an announcement by the hon. the Minister, an announcement that has implications by itself, namely that South African citizens who are convicted of these offences may well find themselves in a situation where their passports are withdrawn. I think that is quite fair and quite correct, because I believe that if a person has smuggled money overseas, it would be quite wrong to allow him to use his passport to go to that country and spend the money. I think it is quite a fair penalty to expect that type of person to pay for this type of offence. However, what I would like to say is that the type of penalty which the hon. the Minister has now just announced, a penalty which has always been there and which will in future be applied, could well be used also against the naturalized South Africans just as it could be used against South Africans who were born here.

What I cannot understand is why this punishment—the fines together with possible imprisonment and with an axe hanging over the passport of such a citizen—is not sufficient punishment for naturalized citizens, as well as for other South Africans, and why we have to have an additional penalty which applies only to naturalized citizens. The withholding of a passport as punishment is, in fact, in the hands of the Minister’s for all citizens, whether they be citizens by birth, descent of naturalization. Our argument is that the hon. the Minister should use that penalty for all citizens and should scrap the special provision being made here for deportation. However, as the hon. the Minister says, it seems that we will have to agree to differ upon the matter.

On amendment (1),

Question put: That the words stand part of the clause,

Upon which the Committee divided:

Ayes—113: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bartlett, G. S.; Bodenstein, P.; Botha, C. J. van R.; Botha, J. C. G.; Botha, P. W.; Clase, P. J.; Coetsee, H. J.; Coetzer, H. S.; Cronje, P.; Cruywagen, W. A.; Cuyler, W. J.; De Jager, A. M. van A.; De Jong, G.; De Klerk, F. W.; Delport, W. H.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. C.; Durr, K. D.; Durrant, R. B.; Du Toit, J. P.; Greeff, J. W.; Grobler, J. P.; Hartzenberg, F.; Hayward, S. A. S.; Hefer, W. J.; Heunis, J. C.; Heyns, J. H.; Horn, J. W. L.; Janson, J.; Janson, T. N. H.; Jordaan, J. H.; Kotzé, S. F.; Kotzé, W. D.; Krijnauw, P. H. J.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, N. W.; Lloyd, J. J.; Louw, E. van der M.; Malan, W. C. (Paarl); Malan, W. C. (Randburg); Malcomess, D. J. N.; Marais, J. S.; Marais, P. S.; Miller, R. B.; Morrison, G. de V.; Mulder, C. P.; Myburgh, G. B.; Nel, D. J. L.; Niemann, J. J.; Nortje, J. H.; Oldfield, G. N.; Page, B. W. B.; Palm, P. D.; Potgieter, S. P.; Pretorius, N. J.; Pyper, P. A.; Raw, W. V.; Rencken, C. R. E.; Rossouw, D. H.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Simkin, C. H. W.; Smit, H. H.; Snyman, W. J.; Steyn, D. W.; Swanepoel, K. D.; Swiegers, J. G.; Tempel, H. J.; Terblanche, G. P. D.; Theunissen, L. M.; Treurnicht, A. P.; Treurnicht, N. F.; Ungerer, J. H. B.; Van den Berg, J. C.; Van der Merwe, H. D. K.; Van der Merwe, J. H.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van der Westhuyzen, J. J. N.; Van Heerden, R. F.; Van Rensburg, H. M. J. (Rosettenville); Van Vuuren, J. J. M. J.; Van Vuuren, P. Z. J.; Van Wyk, A. C.; Van Zyl, J. J. B.; Venter, A. A.; Vlok, A. J.; Vorster, B. J.; Wentzel, J. J. G.; Wiley, J. W. E.; Wood, N. B.; Worrall, D. J.

Tellers: L. J. Botha, J. P. A. Reyneke, A. van Breda, W. L. van der Merwe, J. A. van Tonder and V. A. Volker.

Noes—16: Basson, J. D. du P.; Dalling, D. J.; De Beer, Z. J.; De Villiers, I. F. A.; Eglin, C. W.; Lorimer, R. J.; Marais, J. F.; Myburgh, P. A.; Schwarz, H. H.; Slabbert, F. van Z.; Suzman, H.; Swart, R. A. F.; Van der Merwe, S. S.; Widman, A. B.

Tellers: B. R. Bamford and A. L. Boraine.

Question affirmed and amendment dropped.

Amendment (2) negatived (Official Opposition dissenting).

Clause agreed to (Official Opposition dissenting).

House Resumed:

Bill reported without amendment.

Mr. Chairman, I rise to move the amendment printed in my name on the Order Paper, as follows—

These amendments are designed to do no more than to bring clarity as to the intention and purpose of the subsections contained in the new proposed section 11A. The clause as a whole contains the principle of the Bill, and after what I thought was a very thoughtful analysis of the Bill by the hon. member for Sandton last evening and an indication of our support for this principle, there is no need for me to add more to that particular aspect of it. However, as we understand the hon. the Minister’s intention, and the intention of the Bill if one reads the Afrikaans text, it is that the provisions of this clause should not be retrospective. They should apply to—

1. (1) an alien who—
   1. (a) is not older than 25 years; …
   2. (c) has for a period of two years after he so became entitled, been ordinarily resident in the Republic …

and he should not have been excluded under (d). The proposed new section 11A(1)(b) refers to an alien who, by virtue of a permit in terms of the Aliens Act, after the commencement of the South African Citizenship Amendment Act, i.e. this Bill, is entitled to permanent residence in the Republic. In the Afrikaans text there is no problem, because the word “uitgereik”—issued—appears fairly late in the paragraph, in line 11. It is quite clear that the question of a permit being issued under the Aliens Act, and that this should be after the commencement of the South African Citizenship Amendment Act, is adequately stated, because the word “uitgereik” appears in that paragraph only after those two conditions have been stated.

*I shall read to the House the Afrikaans text of the proposed new section 11A(1)(b)—

In other words, those two conditions must be met before the permit is issued. Therefore it is not retrospective at all.

†However, in the English text—I think because of the translation—it could read—

leaving out the next two lines—

or, it could read—

In other words, the rider that the permit must be issued after the commencement of the South African Citizenship Amendment Act is not clear in this instance. The legal advice that we have received is that there is doubt in the English text as to the intention of this particular clause. So, if one looks at the amendment I have moved, I have suggested that the word “is” be taken out at the commencement of line 8 and be put in immediately after “1978” in line 11, and that the word “and” in line 9 is deleted. This clause in its amended form, would then read—

1. (b) by virtue of a permit issued in terms of the Aliens Act, 1937 (Act No. 1 of 1937), after the commencement of the South African Citizenship Amendment Act, 1978, is entitled to permanent residence in the Republic.

It is our opinion that the amendment will make quite clear the intention of the hon. the Minister and the intention of the legislation, and not leave in the legislation the degree of ambiguity which it has in its present form.

*As far as the deletion of the word “en” is concerned, linguists have told me that the word is unnecessary and that it could perhaps be confusing, particularly since the word “en” appears in the Afrikaans text and is subsequently translated into English. In order to clarify the English text, I should recommend that the word “en” be deleted. It does not basically alter the meaning of the text, because without “en” it is quite clear that a permit should be issued after the commencement of this Bill and not before.

†We hope the hon. the Minister will agree to this in the interest of clarity, that he will see to it that there is no ambiguity, and that he will remove any doubt with regard to whether this provision is retrospective or not We believe that the hon. the Minister’s intention is that it should not be retrospective, and therefore we urge him to accept this and to put this beyond all doubt.

Mr. Chairman, I find myself in a difficult position. Just before the proceedings commenced I was informed by the Chief Law Adviser that the wording in both the English and the Afrikaans texts is correct. In other words, our legal advice differs. But, in view of the fact that the hon. member’s only motive is that of textual improvement, I shall undertake to look at it again. If necessary it can be changed in the Other Place. Now the hon. Chief Whip can threaten to keep his eye on me again, as he did yesterday!

Mr. Chairman, if I may deal with the clause generally, there are four points I should like to make for the consideration of the hon. the Minister. The first point relates to paragraph (c) of the proposed new section 11A(1). This paragraph refers to “an alien who has for a period of two years after he so became entitled, been ordinarily resident in the Republic”. I have a question in this regard. I have not put an amendment on the Order Paper, but an amendment can nevertheless be moved if the hon. the Minister reacts favourably to my suggestion. Does the Minister not feel, despite his reaction to this point last night, that a two year period is too short a time in which a person can make up his mind after he has immigrated to South Africa from abroad for the first time? I ask this question bearing in mind the penalty for which provision is made, in terms of which it becomes impossible for a person who has, for example, made a wrong decision to acquire citizenship at a later date. In other words, if the option is taken perhaps hastily and perhaps wrongly by a person who later changes his mind, there is no provision in the Bill for that person to be catered for at a later stage.

I am sorry; I cannot change my mind as far as that is concerned.

Sir, the hon. the Minister must realize that there are many considerations to bear in mind, such as social benefits, the integration of the person into the community, ties with the fatherland, etc. Identification with a new country takes a certain amount of time. I would prefer a period of three years, quite frankly. It is an arbitrary period, but I would ask the hon. the Minister at least to consider this point. If he rejects this suggestion, I shall not place an amendment on the Order Paper, but I would like him to consider this point I have made.

The second point I should like to mention relates to subsection (2) of the proposed new section 11A. Paragraph (a) of this subsection is a paragraph which makes provision for the Minister in his discretion to exclude any person or category of persons from the provisions of subsection (1). In other words, there are people who are excluded from having to satisfy the requirement to take permanent residence and to exercise an option. I think there is a case to be made out for a discretion for the hon. the Minister. I think there is a case to be made out for an escape clause of this type to allow the Minister to deal with special cases. All I should like to ask is whether the Minister will elaborate and tell us what he really has in mind in so far as the scope and the application of this exclusion clause is concerned.

Now, Sir, I should like to move the second amendment standing in my name on the Order Paper, as follows—

Subsection (5) makes it obligatory that the names of persons who have opted not to become South African citizens shall every three months be published in the Gazette together with such particulars of that person as the Minister may deem fit. The Minister last night said that the reason for having this clause was that it was necessary, for the purposes of the employer, to identify such people. On reflection, is this House absolutely certain that it is necessary that an employer should be notified in this manner, by publication in the Government Gazette, of such a person’s name, address, date of birth, etc.?

Should he be informed?

Does the hon. member wish to ask me a question? Usually people stand up when they want to ask questions. Sir, I believe that when a person goes to seek employment, any employer who wants to ensure that he is going to survive in a competitive market makes inquiries as to what the status of that person is, if he is a foreigner, etc. He ensures that he employs people who will be able to stay with him on a permanent basis if that is what he requires. If one places information of this sort in the Government Gazette, the possibility exists that the newspapers may also publish it and then it could create a form of stigma …

Why are you concerned about it?

… in regard particularly to what is a private and legal decision by a person. It is not a criminal offence to opt to retain the citizenship of one’s birth. It is a private decision based on the person’s own conscience, his own seeing of ethnics and the desirabilities in so far as his own family is concerned. I do not think that such considerations can be looked upon as a public matter. That is the point I am trying to make. If it is not a public matter and just a question of the employers, I think there are other ways of getting around it than by publishing the names and particulars of such persons in the Government Gazette. I think it opens the way to public pressure being brought upon people and quite frankly, I do not even think it is a very effective measure if the idea is to bring these things to the notice of employers. I honestly do not believe that employers in South Africa go through Government Gazettes to look for the various things that affect them; they wait until they pick it up in the newspapers or they wait for some specific event. I do not think people read Government Gazettes for light reading before they go to bed at night or in any other way. [Interjections.] If it is necessary to identify such people for the purposes of employers, I do not think this is an effective way at all.

[Inaudible.]

If the hon. member has a question to ask, he should just stand up and ask it. [Interjections.] What does the hon. the Minister of Economic Affairs have to say? If he wants to ask a question, he can stand up as well.

The fourth point I should like to make in moving the first amendment which stands in my name on the Order Paper is to say that if the amendment of the hon. member for Durban Central is accepted, I think mine will fall away. I shall allow his to be accepted. On the other hand, should his amendment not be accepted, I should like my amendment to stand. Therefore I move—

If a person opts not to be a South African citizen, the provision applicable to him stipulates that he is disqualified from acquiring South African citizenship in any manner. This is an absolute disqualification as I understand the Bill. I do not think there is any other provision which can alleviate his position and I believe the Bill does not make provision for the person who may legitimately and bona fide change his mind after a period of time. I think that people who have made a decision but after a year or so come to a different decision and find that they would like to change their mind, are good citizens and they should be given the opportunity in the discretion of the Minister to change their mind. That is why I include the words “may in the discretion of the Minister”. The clause would then read—

Since I am now arguing for the granting of a discretion to the Minister, I may well be asked why I have argued against it before. In the entire legislation the question of citizenship is in the end resort in the discretion of the Minister. Therefore it is quite consistent to allow, in the discretion of the Minister, a person who would wish to acquire citizenship and who has been disqualified by virtue of an option he had taken some time previously, the opportunity to apply. The amendment does not in any way take away strength from the Bill; in fact, all it does is that it merely allows the Minister a discretion. Where the position is now that, if one opts to stay away from South African citizenship, one may never become a South African, the purpose of the amendment is not to say that one may now at any stage become a South African whether one opted to do so previously or not; it is to say that, if a person opts to stay a foreigner but changes his mind at a future date, the Minister will then have a discretion in that regard. That is all the amendment means and it is an improvement on closing the door altogether. I do not believe this amendment would create any greater right for a prospective citizen at all. What it does is that it allows the Minister to decide.

Mr. Chairman, yesterday the hon. member for Durban Point indicated in his speech that, whilst we would be supporting the Second Reading of the Bill, we did not agree with the harsh punishment meted out in terms of the proposed subsection (3) (c) to the effect that a person can be disqualified from acquiring South African citizenship in any manner. We feel that that is tantamount to banning a person completely and forever from South Africa. One must take into consideration that we are dealing here with a particular age group. We are dealing with young people who have to decide on this issue by the age of 21 or whose parents have to decide for them. Such a person can have a sudden rush of blood to the brain and, being upset, decide not to do something and then later on feel very sorry for that. Where such a person is never to be allowed to come back on his decision, this is contrary to common practice in many fields: One should at least be in a position to forgive a person and to adopt a more compassionate attitude at a later stage. As the provision is worded now, a decision is for ever. Even when a person reaches 60 or 70 years of age, he will find that he can still not acquire citizenship.

For that reason I move the amendment printed in my name on the Order Paper, as follows—

I know that it could be argued that, if the provision were omitted altogether, this could lead to the creation of a loophole, but in any case it should be possible for it to be taken into consideration when a person applies through the normal channels.

Let me say that, while the hon. member for Sandton is quite keen that my amendment should be put first, I would not mind if his amendment were put first. As he said, it is quite an achievement for his party all of a sudden to become adherents of the belief that the Minister should be allowed some discretion. In any event, I must ask the hon. the Minister to give serious consideration to my amendment because I think that in this respect the relevant provision of the Bill goes far too far.

Mr. Chairman, when the Committee considers the arguments of the hon. members for Sandton and Durban Central, I think it is important that consideration also be given to what is going on in the mind of the prospective immigrant. He must have certainty about the position in South Africa. When he considers coming to South Africa, I think it is essential that he should know precisely where he stands. Therefore I want to suggest that it makes for vagueness if there is any question of the discretion of the Minister in this regard. It will lead to the immigrant then being able to argue that the Minister may under certain circumstances reconsider certain decisions of his and give him the benefit of the doubt. When the immigrant comes to South Africa he must know what the law in South Africa stipulates. He must know that it is inexorable and that he must make provision for that.

In replying to the arguments of the hon. member for Sandton point by point, I want to refer in the first place to his argument that a period of two years is too short. I think it is typical of the profession to which he belongs that he should try to arrive at a compromise and make the period three years instead of two. I do not think we are in a position to reply to that. If a prospective immigrant cannot decide after two years whether or not he wants to remain in South Africa, he will not be able to decide after three years either. But he knows what the legal position is when he comes to South Africa.

In the second place the hon. member for Sandton argued that there should be a discretion on the question of whether or not he should lose his permanent permit. I have already said that the immigrant must know that there is no such thing as a discretion. It is in the interests of immigration that he should know this.

That is not the point. It only concerns citizenship.

As far as section 11A(5) is concerned, the hon. member argued, in the third place, that that provision should be deleted entirely. The hon. the Minister said yesterday evening that this subsection was being included in the Act for the sake of third persons such as employers. I want to suggest that this provision is also relevant in so far as creditors are concerned, for they want to know whether a person is going to lose his permanent permit or not. I think it is very important that creditors should take cognizance of this. He also said that it was a private and domestic matter and that it should not be given publicity. However, the entire process of naturalization is a public matter. When one declares one’s intention to apply for naturalization, a notice is published in the Gazette. After naturalization is granted, another notice is published in the Gazette. The entire matter is therefore a public matter and one asks oneself how any stigma can attach to it. Surely the hon. member knows that naturalization matters are dealt with in public. Therefore there should not be any stigma attaching to it; in fact, it should instead be an encouragement to prospective immigrants to make use of this option.

In the fourth place, the hon. member for Sandton argued that section 11A(3)(c) should be substituted in order, once again, to give the hon. the Minister a discretion.

This will mean that when a prospective immigrant is no longer eligible for registration in terms of the Defence Act, he may advance a good reason as to why he would prefer to accept South African citizenship. It therefore affords him a loophole, for in spite of the fact that he does not want to render military service, he may subsequently advance a very sound reason as to why he wishes to accept South African citizenship. I do not think that that is a sound argument, for once again it creates a measure of uncertainty, for he promises to apply for citizenship at a later stage. Above all, this provision is in line with and reconcilable with similar legislation in a country such as America. Until 1940 the American Government told a person who refused to render military service and who had a permanent residence permit, to leave the country immediately. After 1940, however, they realized that it was a little harsh to treat an immigrant in this way, and they then amended the law so that it was exactly the same as what is stated in this Bill, i.e. that if he did not indicate in this way that he wanted to become a citizen, he could never obtain citizenship of the country. Exactly the same statutory provision is recorded in the Statute Book of the United States.

The argument advanced by the hon. member for Durban Central can be replied to in the same way. As far as I am concerned, I do not think that we can accept these amendments.

Mr. Chairman, I merely rise to put on record that we do not support the second amendment moved by the hon. member for Sandton, who himself admits that a stigma would attach to having your name published in the Gazette as a person who has refused and continues to refuse to serve his country in its own defence. I agree entirely with the hon. member for Sandton that it is a stigma. It is a stigma which that person asks for by the deliberate act of coming to this country and refusing to serve in its own defence. We do not support any attempt to hide that fact by its non-publication in the Gazette where the other person, he who becomes a South African citizen, has his name published for all to see and for him to be proud of. I see no point in trying in this way to protect the man who is prepared to live in South Africa, to share and benefit from its wealth, to enjoy what it offers, but who is prepared to give nothing back to it. Therefore the NRP does not support that amendment.

In regard to the amendment moved by the hon. member for Durban Central, I believe we must look at this matter very carefully. The hon. the Minister is here applying a penalty to a young person of 18 years of age who only has the option when he becomes 21 to decide for himself. This penalty will be a life sentence, and this is one of the problems we have in regard to the Bill. One cannot get over the legal distinction of a minor. At the date when a young man is called up to serve, he is still a minor as he is 18 years of age. He can fight, vote and marry, but legally he is a minor and therefore the citizenship decision must be taken by his parents. He might want to go and fight and his parents may say “No”. He might say that he is prepared to serve, but his parents might refuse permission. He remains under parental authority until he becomes 21 and he may then be faced with facing a direct conflict with his parents by saying that he repudiates the decision they have taken for him and that he opts to become a citizen. At that age most young people do not want to take a decision of that nature, i.e. to go against their parents’ wishes. But if he fails to take that decision within two months, he is denied, for the rest of his natural life, the opportunity to become a South African. I think that is wrong, because such a person is under heavy parental influence at that stage. He might be at university; his father might be paying for his fees and he will not stand up against his family and say: “I am sorry; I am going to go my own way now.”

Therefore, if he is not given more than two months in which to decide, the hon. the Minister has to take a permanent decision affecting that person’s life. If the proposed new paragraph (c) is deleted, the hon. the Minister then has an option, at any time, to reconsider. He will then have the same option that was proposed by the hon. member for Sandton as a specific option in the Act. But that discretion rests with the hon. the Minister in any case. By including the proposed new paragraph (c)—a lifetime disqualification—there remains no discretion to the hon. the Minister. By deleting it the hon. the Minister can, at any time, reconsider a future application. I would therefore plead with the hon. the Minister to accept the deletion of this proposed paragraph. If he cannot do that for any reason which I cannot foresee, he should at least place a time limit on the disqualification. No penal sentence—even a life sentence—is for life. Even a sentence of life imprisonment is usually limited to 15 years and does not run the entire natural lifetime of a person. Here the hon. the Minister is imposing a life sentence which does not even qualify for the remissions which a prisoner will get who was sentenced to gaol for life. This is now applicable for the total natural span of life of a person. I think it is wrong that a sentence which will be perpetual should be imposed by administrative action. I would ask the hon. the Minister to reconsider and either to omit the proposed new subsection 5 or, at the least, to place a limitation period of, say five years, on it.

I shall leave it to the lawyers to argue about the terminology of the other amendment. As I read English, the Bill as it stands means what it is intended to mean, but if the hon. member for Sea Point has legal advice that it does not, it will be interesting to see how that measures up to the hon. the Minister’s own legal advice. My experience is that if one gets two lawyers, they will argue for a week and if one brings in more opinions, they will argue for the rest of the month. Therefore I shall not get involved in that argument. I do not, however, accept the other arguments which were submitted and the other suggestions made by the hon. member for Sandton. I plead only that the proposed paragraph (c) be omitted from the Bill.

Mr. Chairman, the hon. member for Durban Point speaks of a penalty provision. There is absolutely no question here of a penalty provision. The point here is that a person who has been in South Africa for two years with the intention of staying here permanently, a person who has chosen to be domiciled here …

His parents may have chosen it for him.

The fact is that he lives here. After he has been living here for a considerable time, we tell him that we have no desire to penalize anyone, but that we are prepared to grant him the privilege of South African citizenship on certain conditions. I want to make it very clear: We dare not cheapen South African citizenship. If we allow a person to say that he holds South African citizenship cheap in comparison with the other benefits he will have if he does not accept it, this is an indirect insult, if he means it to be an insult, to South Africa. We dare not allow that. In my opinion we must proceed from the point of view that a person is of age and able to take his own decisions when he is 21. We may argue that a person is not mature at 18. We could also argue that he will not be mature at 21 or even at 65. There are hon. members sitting on that side of the House, for example, who are not yet mature. Our common law accepts 21 as the age of majority, and I believe that it is fair that a person should consider his own position at that age.

The second aspect concerns the question of not publishing the names in the Gazette. This is the second objection raised to this by the hon. members. I do not agree with the hon. member for Durban Point that the publication of the names is meant to be a stigma.

I said that if it was a stigma, let it be one.

Very well. However, I do not see it in that light at all. I simply see it as a change of status, a change from a person who has had permanent residence in South Africa and who has been able to become a citizen into a person who can no longer become a citizen. This is merely a change of status. The hon. member for Brakpan is quite correct in saying that matters relating to naturalization involve a change of status and are always published in the Gazette. For this reason, I believe, this information should also be published in the Gazette, for the information of creditors and other people with whom these persons have entered into contracts, because there are certain legal consequences when someone is no longer a citizen of the country. Certain legal processes then become applicable, so there are many reasons why it is necessary in practice for people to know that someone has undergone a change of status. The hon. member for Sandton argued that no one read the Gazette. That is no argument. Public notice is being given, and those who are interested know exactly where they can find it.

For this reason I agree with the hon. member for Brakpan that the two amendments are not acceptable.

Mr. Chairman, in the first place I want to discuss the remarks made by the hon. member for Sandton concerning the period of two years, in respect of which he wants a discretionary extension to three years. I made it quite clear last night that we should remember that the legislation will be applicable to people who obtain permanent residence after its commencement. I have made it quite clear that the immigration offices everywhere will be informed of the legislation and that it will be put to prospective immigrants that this is now the law of the land. So I argue once again, as I did last night, that two years is a reasonable period because when someone signs the application for permanent residence—in the case of a minor his parents will sign on his behalf—he is already acquainted with the provisions of the legislation. The hon. member asked me why I had had the discretion written into section 11(2)(a). I had that discretion written into the legislation to serve as a safety valve. I cannot give any specific reason for it. I simply had it written in to serve as a safety valve because—and I must admit this—strong provisions are contained in the preceding clauses. I had this written in because I had to be able, for humanitarian reasons, to exercise a discretion.

I am dealing with these two amendments in a rather mixed-up way, because the hon. member for Sandton was inclined to mix them up too. I want to refer to the question of the publication of names in the Gazette. I cannot do away with this requirement. At the moment there is the precedent that the names of people who have been deprived of their citizenship are published in the Gazette. This in itself is an example of how publication in a Gazette causes a stigma to attach to people. The same applies to people who are naturalized. There is a very good reason why I cannot do away with that in this case. The reason lies in section 5ter of the Aliens Act, No. 1 of 1937, which provides that no person may employ or continue to employ an alien who is not in possession of a permanent or temporary residence permit, that no one may conduct a business with any such an alien or harbour any such alien. There are other prohibitions as well in respect of such an alien. For this reason the public must be notified, by means of three monthly notices in the Gazette, of aliens who have lost their right of residence in South Africa, whether permanent or temporary. If they are not notified of this, they may unwittingly employ, conduct a business with or harbour an alien who is not in possession of a residence permit. This is the whole motivation for the provision.

I am afraid, therefore, that I cannot accept the amendments of the hon. members for Sandton and Durban Central, because we have argued this matter over and over again and in great detail. If I were to allow the proposed section 11A(1)(c) to be deleted, as has been proposed, I should be allowing someone who enters the country after he has attained the age of 21 years, someone who is between 21 and 25 years old, to decide about his citizenship at will, and it may happen that he first wants to become a citizen and then finds that he no longer wants to be one. This I cannot allow. Consequently I am afraid that I cannot accept either of the two amendments.

Mr. Chairman, I have a very brief question which I wish to put in view of the hon. the Minister’s explanation with regard to subparagraph (b). The mere fact that there appears to be a difference in opinion at legal level would indicate a rush of ambiguity and we are anxious that the question of retrospectivity should not be ambiguous. Perhaps this could be achieved by the mere deletion of the word “and” in line 9, because that would clearly link the question of the issuing of the permit to a point after the commencement of the South African Citizenship Amendment Act.

Where is that?

In line 9, page 3, subparagraph (b). We suggest that it should read—

We believe that this would clarify the matter. However, the hon. the Minister has indicated that he will examine it before the Bill goes to the Other Place and he has also acknowledged that the Chief Whip, to use his phrase, “hom gaan dophou”. In these circumstances we shall accept this assurance from the hon. the Minister and with the leave of the House I withdraw the amendments I have moved.

Amendment moved by Mr. C. W. Eglin, with leave, withdrawn.

Amendment moved by Mr. P. A. Pyper negatived (Official Opposition and New Republic Party dissenting).

Amendment (1) moved by Mr. D. J. Dalling negatived (Official Opposition and New Republic Party dissenting).

Amendment (2) moved by Mr. D. J. Dalling negatived (Official Opposition dissenting).

Clause agreed to.

House Resumed:

Bill reported without amendment.

Mr. Speaker, I move—

In terms of the provisions of section 21(1) of the Coloured Persons Representative Council Act, 1964, this council has the same power to make laws in respect of any subject falling within any matter referred to in section 17(6)(a) of the Act as is invested in Parliament. One of these matters is “rural areas and settlements for Coloureds”.

Rural areas and settlements for Coloureds are presently administered by the Minister of Coloured Relations in terms of an Act of Parliament, the Rural Coloured Areas Act. The great majority of powers vested in the Minister in terms of this Act have already, in terms of section 17(6)(c) of the Coloured Persons Representative Council Act, been delegated to the member of the Executive charged with rural areas and settlements.

During discussions held last year with the member of the Executive of the CRC charged with rural areas and settlements, who had personally acquainted himself with the circumstances and problems in virtually all 23 existing rural areas, as I had also done, the desirability was discussed of having the CRC pass its own legislation to replace the existing Act of this Parliament, which would give the member concerned a final say in respect of these areas. I believe that such a step will enhance the authority of the boards of management of the rural areas, and will also promote economic farming and other activities in those areas.

Since then, the Executive of the CRC has recommended accordingly by formal resolution, and an Act, based on the Rural Coloured Areas Act, 1963, but omitting the authority to decide about the establishment of new rural Coloured areas—a matter which according to the Government law advisors does not fall within the authority of the Executive—was passed during the 1977 session of the CRC.

The passing of that legislation by the CRC served to prove, I believe, that even within the structure of the present CRC, with all its shortcomings which are often over-emphasized, there is room for the passing of positive legislation which will promote the right to self-determination of the community concerned.

Appropriate legislation is therefore necessary to repeal the existing Act of Parliament, retaining, however, the relevant section, section 4, dealing with the establishment of new rural Coloured areas, which will continue to rest with the State President for the present. This is contained in this amending Bill.

The new Act of the CRC will come into operation on a date fixed by the State President by proclamation in the Government Gazette, and this date will correspond with the date on which certain provisions of the existing Act will be repealed, as proposed in the Bill.

Mr. Speaker, as the hon. the Minister has said, this Bill is the consequence of a similar Bill passed by the CRC and which virtually substitutes the Rural Coloured Areas Act—Act No. 24 of 1963—which now becomes redundant except for section 4 which states, inter alia—

… certain land, etc. In effect, the Minister’s functions, as I understand them, in terms of the Rural Coloured Areas Act, 1963, are now being taken over by the member of the executive who is designated to accept responsibilities for rural areas, or matters incidental to rural areas.

In this respect I want to put a question to the hon. the Minister, because I cannot move an amendment. I have already ascertained that I cannot move an amendment. However, I want the hon. the Minister to tell me, if possible, why he would not consider—or why he did not consider—the possibility of including in section 4 of the Act, which is being retained, a reference to this designated member. If we look at the Act, we see in section 4(2)—

What I would have liked to see is the insertion, after the word “concerned”, of the words “and the person designated under section 7(6)(b) of the Coloured Persons Representative Council Act”. Obviously this person, the designated member, is going to take over most of the responsibilities relating to these areas. He will then, in a sense, have to consult with the State President. The Minister in fact had to take over those functions before, but there is no reference to this designated member in section 4.

The last point I should like to make—and I speak under correction—is that it seems to me that the measure which was adopted by the CRC makes no reference to the words “Coloured”, “disqualified person”, etc. I suspect that this is so because they wish to get rid of any racial reference. In doing so, I think they perhaps have a lesson for this House too. We shall not oppose the Second Reading of this measure.

Mr. Speaker, there is almost as much unanimity today as there was in the case of the 1963 Bill. I recall that we had at the time reached a critical point in regard to services and assistance to the Coloured communities in what was once known as the reserves. Before that dispensation the old Act still used to be known us as the “Mission Stations and Communal Reserves Act”. There were a number of old Cape laws which were completely obsolete and had to be rewritten and consolidated.

With your permission, Sir, I just want to say something for the information of this House in this regard. I want to remind those who were here then that an old friend of ours, Mr. Douglas Mitchell, sat in this part of the House where I am now sitting. He was an old heavy-weight of those days. He made a very long speech in which he made it clear that he welcomed the legislation. That speech of his was far longer than the one I am now going to make, because it is not necessary today. In this regard there is something I must tell this House. Hon. members will probably enjoy it, with the possible exception of a few. To demonstrate his agreement, he concluded his long speech as follows—

He was referring here to the Coloureds—

Then the former member for Somerset East asked him: “When will that be?” The Speaker at that time, who was not as accommodating as you are, Sir, then asked the hon. member not to insist on a reply. Now, I cannot resist the temptation of adding something in this context. If Mr. Mitchell had been sitting here in the galleries today, surely he could not but have said, with King Arthur—

Sir, there has always been a difference of opinion over whether sufficiently rapid progress is being made or whether the progress is too slow. I think that in this regard we have reached a great deal of consensus. That problem will always be with us. For those who say that the progress we are making is too slow, as well as those who feel that we are going too fast, have good reasons for saying and feeling as they do. However, we shall have to thrash out these things among ourselves. I think this measure is a step forward on behalf of the development of the Coloureds, and therefore we on this side welcome the Bill.

Mr. Speaker, the hon. member for Caledon dealt with the history of the principal Act which is to be repealed in terms of this legislation. He referred to the lengthy speech of the then hon. member for South Coast, Mr. Douglas Mitchell, and as he quite rightly pointed out, the UP supported the Act in 1963. Indeed, it was welcomed by all parties that were in the House at that time as being a constructive and necessary step that had to be taken to provide for the incorporation of the 23 proclaimed areas and settlement areas that had been under the various mission stations. The hon. member for Caledon also mentioned a previous debate and he referred to an interjection by one of the Government members as to when the UP should come into power. I should like to remind the hon. member for Caledon that the UP has been repealed and today we sit on these benches as members of the NRP.

As far as we see the legislation before us, we welcome it and we consider it a step in the right direction to allow the CRC more authority so that the motions adopted by the CRC can be implemented. We certainly welcome such a step, because obviously in the past, members of the CRC were often frustrated by the fact that the various motions which they adopted, did not meet with the approval of the Government in this House. We therefore welcome the changes brought about by the Bill.

There are a few matters on which we should like to comment. First of all there is the matter of the Coloured rural areas. We know that in the report of the Erika Theron Commission it is indicated that there is a paucity of Coloured farmers and particularly independent Coloured farmers. We hope that by virtue of the CRC obtaining direct control of the boards of management in the areas covered by the Bill, encouragement will be given as a means of ensuring that the number of Coloured farmers will increase. We believe that farming is an important aspect of the occupation of the Coloured people and we think they should have full opportunity to operate in the agricultural sphere.

I now come to the question of land registered in the name of the boards of management. If one looks at the Act which is now to be repealed, one sees that the Minister acts as a trustee in regard to land which is registered in the name of such a board. I should like the hon. Minister to indicate what the position will be in regard to the transfer in terms of legislation passed by the CRC. He should also indicate his future position as trustee of the land registered in the name of the various boards of management.

I notice that only one provision of the principal Act is to be retained. The hon. member for Rondebosch also referred to this provision which is embodied in section 4 of the principal Act. In terms of that section the reservation of certain land can be proclaimed by the State President subject to the conditions contained in the section.

At this stage I should like to say that we welcome the principle involved in the Bill. We hope that the Bill will have as a result the more rapid development of the rural Coloured areas. We also hope that the Bill will ensure that the CRC will play a more active part in local conditions. We know that the report of the Erika Theron Commission mentions that there are problems in those areas. One such problem is created by the communal areas which are being utilized in terms of the Rural Coloured Areas Act. We hope that the conditions in so far as housing and other aspects are concerned will also show a marked improvement as a result of the more local and direct representation, the power and the authority that will come into being with the repeal of the principal Act and the transfer of authority to the CRC. With these words we welcome the Bill and support its Second Reading.

Mr. Speaker, I should like to thank hon. members for their support of this measure. I think it will create a positive impression on the members of the CRC as well, that all the parties in the House are unanimous in their support for this legislation today.

I come, in the first place, to the speech made by the hon. member for Rondebosch. He put a question to me on section 4, the only section in the Principal Act which is not being deleted. In that section no reference is made to the Minister, only to the State President and to the functions which he has. Therefore it would not be wise to refer in that section to the member of the Executive charged with rural areas. That is the point the hon. member made in this regard.

He also referred to the fact that in the legislation passed in the CRC, the word “Coloured” was removed. I was not present when this matter was debated, and consequently I do not know what the motivation for it was. Initially the word was in fact included there. However, I just want to tell the hon. member that I have here a copy of the final document and that the word “Coloured” does still appear there in one place. However, the State Law Advisers will have to ascertain to what extent the omission of the word “Coloured” could affect the determination of those areas.

The hon. member for Caledon made a very interesting contribution on what led up to this legislation years ago in Parliament and also on the history of the rural areas. I know that he is particularly interested in this subject and that he has always had that interest. I want to thank him for the exceptional contribution to this debate. I also want to thank the hon. member for Umbilo for his contribution. He said that he hoped that individual farming enterprises would be encouraged by means of this legislation. That is also my wish and desire, and therefore I also said in my introductory speech that this measure is helping to promote autonomous control in this regard so that more individual farms may be established in the rural areas, because communal farming is not desirable from a soil conservation point of view, nor from an economic point of view. It is an old traditional system which one should move away from. I hope that autonomous control and a greater say for the Executive, as well as for the boards of management there, will gradually lead up to the objective which the hon. member as well as I advocate.

The hon. member also asked me who the trustee would be to whom reference is being made in the present Act. The member of the Executive will in fact act as trustee of those areas.

Once again I want to thank all hon. members for their support.

Question agreed to.

Bill read a Second Time.

Bill not committed.

Bill read a Third Time.

Mr. Speaker, I move—

It is a known fact that all the technological developments known to the world today may to a large extent be attributed to inventions and also to the subsequent protection which is accorded to inventions in our country and throughout the world by way of patent legislation. Today there is virtually nothing under the sun in the field of technology or science which has not been subject to patent protection at some stage or another.

The comprehensiveness and versatility, if I may put it in such a way, of patent rights was internationally recognized by the Convention of Paris for the Protection of Industrial Property of 1883. It is interesting to know that South Africa has been a member of this convention since its inception, at first through South Africa’s colonial association with the United Kingdom and subsequently in its own right as an independent State.

South Africa, with its approximately 8 000 applications annually, handles more than eight times as many applications as the rest of Africa put together.

Our earliest legislation in connection with patents dates from the year 1860, when a law was passed in the Cape of Good Hope to make provision for the granting of patents for inventions in “this Colony”. In the Transvaal proclamation No. 22 of 1902 was promulgated which was fundamentally the same as the Patents Act which is being repealed by this Bill.

Besides affording protection to inventors the registration of patents also has additional benefits. The first is to promote expertise in general. This is done by requiring the inventors to reveal the best method whereby their patent may be applied in commerce, industry and agriculture and is frequently accompanied by secret expertise, the so-called “knowhow”. It is therefore clear that information which is available in patent specifications in the patents office is far in advance of scientific journals and text books, and every university and research body, whether State-supported or not, ought to make use of the patent information as a point of departure for further technological research in South Africa.

Of the approximately 8 000 patent applications made annually, approximately 5 500 come from abroad. Annually South African inventors register approximately 2 000 patents abroad. In consequence there is a constant and beneficial interaction between South Africa and the outside world as a result of the reciprocal exchange of knowledge, and it is clear that South Africa is making no small contribution to the furtherance of world technology.

South Africa’s inventors are also being assisted by the S.A. Development Corporation for Inventions, which falls under the Council for Scientific and Industrial Research. It is interesting to note that it was stated in the corporation’s 1977 report that attention had been given to 165 proposed patents, many of which related to energy conservation, fuel conservation and unconventional sources of power. Unfortunately only nine of the proposals were acceptable. Nevertheless this stresses the fact that attention is being given to this very sensitive field, not only by South Africa, but by the world as a whole.

South Africa, with its tremendous technological and scientific knowledge, can therefore play a leading part in Southern Africa and attention might subsequently be given to combining the separate homelands, as well as countries such as Swaziland, Botswana and Lesotho, into one common organization so that those countries may also share in the South African expertise and technological skill. In fact, I think that it can form a component of the idea of co-operation in economic and other spheres.

In order to cause South Africa’s patent legislation to comply with the most modern techniques known to the world, an ad hoc committee consisting of representatives from the Bar Council of South Africa, the Association of Law Societies of the Republic of South Africa, the Chamber of Mines, the S.A. Development Corporation for Inventions, other industrial organizations and the S.A. Institute of Patent Agents was convened under the chairmanship of the Registrar of Patents in 1971 to revise the Patents Act, 1952.

Inter alia, the committee considered the proposals for patent law revision in the United Kingdom—the Banks Committee—and those of a presidential committee in the USA, as well as the provisions of the European Convention on Patents which came into operation in November 1977 and which made provision for common patent rights in the countries of the European communities. The proposals of the committee were published during February 1977 in the for of a draft Bill. As a result of comment received from interested parties in South Africa as well as abroad, certain adjustments were made to the Bill. In this connection it is important that we should, in the nature of things, also give attention to foreign comment on the proposed legislation, particularly in view of the fact that of the 8 000 applications for the registration of patents in South Africa itself, 5 500 originated from abroad.

An amended draft Bill was published during December 1977, and with minor adjustments this is the Bill we are discussing today. The provisions of the legislation, with the exception of clause 22—to which I shall refer in a moment—are in general acceptable to all interested parties. In this regard I just want to emphasize that, prior to the introduction of the legislation in the hon. House, the widest possible consultation with the private sector and other sectors took place to ensure that we achieved maximum unanimity on this legislation.

The most important principles contained in the Bill deal in the first place with the position of practitioners who perform functions in connection with patent matters, with the patentability of inventions and, finally, with the term of patents and the revocation of patents granted.

As far as practitioners are concerned, it is proposed to create a new profession within the attorneys’ profession, i.e. that of patent attorneys. It is expected of these persons to qualify as attorneys first and subsequently sit for an examination on patent matters. This examination, which is known as the “patent agents examination”, is prescribed and is at present being conducted by the Board for the Recognition of Examination in Law which was established under the control of the Department of National Education in terms of the provisions of the Universities Act of 1955. On the recommendation of the Commission of Inquiry into Universities—the Van Wyk De Vries Commission—provision is being made in the Bill now before this House for an examination board which will be appointed by the Minister of Economic Affairs to prescribe and conduct examinations.

The rights of patent agents who have qualified in this way continue to exist in the new legislation. As regards existing attorneys who have been active in this field as well, the standpoint was adopted that they should enjoy the same rights as those of existing patent agents. In other words their rights will be protected for as long as they still wish to practise. Representations were received from the Association of Law Societies of South Africa to the effect that these rights should be curtailed and that only expert practitioners should be allowed to perform functions in connection with patent matters, in accordance with the same principle which is applicable to notaries and conveyancers.

After careful consideration I acceded, with certain reservations, to these representations and I caused certain amendments to be effected to clause 22 of the Bill as published on 7 December 1977. I propose to move further amendments to this clause during the Committee Stage, as well as to clause 25(3), in order to state this clause more clearly. Perhaps I should just point out, for the information of hon. members, that the amendments I am going to move in this regard relate, inter alia, to certain restrictions in connection with the power which will be granted to the registrar to grant further extension for qualification after the initial period of five years has elapsed. In my opinion the restrictions should be the following: Firstly, any applicant desiring an extension shall submit his application for such extension prior to the lapse of the original extension of five years. Secondly; It is also important that the Institute for Patent Agents and also the law society of which the attorney is a member, shall be consulted on such application. I am going to propose that the application should in such a case be addressed to the registrar via the law society of which the attorney is a member, so that when the application reaches the registrar for consideration, it already includes the recommendation of the law society. This amendment therefore involves the acceptance of the principle that both parties should be afforded an opportunity to be heard when their rights are affected.

†As far as patentability is concerned, the Bill provides for a new approach to this very essential condition for patent protection. The approach is, firstly, based on the fact that an invention must be new, involving an inventive step and be capable of being used or applied in trade, industry and agriculture. Secondly, the test to be applied to determine whether the invention is new, is based on the state of the art relating to that invention as at the priority date of the claims, which, depending upon circumstances, may be the date of the application for a patent in South Africa or in a foreign country. The Bill further excludes certain categories which are not deemed to be patentable, such as, for example, scientific theories—I am sorely tempted to include political theories, which would mean that the hon. member for Wynberg will not be able to patent anything—mathematical methods, mental acts, computer programmes, literary, dramatic, musical or artistic works, etc.

The basis for determining patentability is derived from the European Convention on Patents. This basis is applicable in the countries of the European Communities, and it is anticipated that these principles would be adopted internationally. Such adoption would facilitate the free flow of applications from and to South Africa, as well as providing international precedents for interpreting patent specifications and claims, and in patent cases before the courts.

Also, in common with European practice, the term of a patent is extended to 20 years, instead of, as at present, 16 years, with an optional extension of up to another 10 years. Such a fixed period in respect of the term of a patent, removes any doubt as to the time and date when the patent expires, and proposed users of such a patent, at the end of its term, may organize their affairs with a fair degree of certainty.

Apart from the innovation as regards patentability, it is also proposed to do away with the procedure whereby the application for a patent may be opposed before grant, as is the case under the present Act, which provides for opposition before grant and for the revocation of a patent after grant on the same basic grounds.

It is now proposed that letters patent be issued immediately after the acceptance of a patent application has been advertised in the patent journal and for revocation proceedings to be instituted after a lapse of nine months thereafter, except in exceptional circumstances. The advantages of this procedure are that legal costs are saved, and early action can be taken against infringers where novel patents have a very short popular life.

In view of the fact that the Bill is largely an agreed measure amongst the knowledgeable people and that it is of a technical nature, I do not propose to take up the time of the House any further.

Mr. Speaker, the hon. the Minister rightly emphasized the importance of patents, because they have a major influence on technological progress in our country and in the community as a whole. We immediately want to express our appreciation for the obviously careful manner in which this Bill has been prepared and especially for the fact that interested parties were properly consulted before this Bill was introduced here.

One is especially interested in the hon. the Minister’s reference to the opportunity which patents and attendant matters may offer for co-operation between our country and other countries here in Southern Africa. One believes, in fact, that technical and scientific co-operation is often the obvious way to bring about more general co-operation between countries and also, perhaps, to counteract the harm which is involuntarily done by our politicians in that connection from time to time.

It is true that the Bill is extremely technical and complicated, as the hon. the Minister said, and one does not easily discover the consequences which every clause may have. For this reason the Bill is eminently suited to a debate in the Committee Stage where these particulars can be dealt with. If it has to be defined, one assumes that the principle of the Bill is that provision must be made for the registration and administration of patents. There can obviously be no objection to this. Provision is in fact made for this and it would be difficult to single out any particular part of the Bill as the part containing the main principle.

I would like to draw attention to certain specific clauses, mainly because we should like, in the hon. the Minister’s reply, or possibly in the Committee Stage, some more information about these particular clauses. I shall therefore do that with the request that he should reply to and comment on this when it suits and pleases him.

†The hon. the Minister has referred to clauses 22 and 24, which I think contain the only provisions that are in some measure controversial as between the interested parties. It seems to us that the proposals as they are contained in the Bill are in no way unreasonable. On the one hand they give a satisfactory measure of protection to rights which exist today and on the other hand they do provide that over a period of five years, or whatever it is to be in terms of what the hon. the Minister has said this afternoon, there will be provision for the exercise of these patent functions only by appropriately qualified people. We express our appreciation for the fact that the hon. the Minister is going to hear all parties before he arrives at his final decision.

I now want to refer to some matters of detail, matters which we find a little difficult to follow. Clause 25(11) deals with matters which are not patentable. It reads as follows—

I confess I find that confusing. I shall be grateful if sooner or later it will be explained.

Also confusing is clause 32(6), which reads as follows—

I must say I find it quite impossible to understand what is being driven at there. First of all, to deliver specimens of a microorganism is not a particularly simple task and, secondly, I would have thought that microorganisms in general were in any case unavailable to the public. There must be some explanation, however. I accept that there must be an explanation.

We would like to express appreciation of the fact that this Bill, unlike a number of others that appear from time to time before this House, makes pretty generous provision for individuals to recover losses as a result of innocent carelessness. I am referring in particular to clause 47, and in a rather different way to clause 48, in terms of which rights which might otherwise have inadvertently been lost, can be regained. I believe that is the right sort of principle to introduce into a Bill of this kind.

Again, clause 51(5) provides for the correction of certain mistakes in provisional specifications where it is clear that these were honest and inadvertent mistakes.

Clause 56(2)(a) deals with the periods after which a patent shall be held to have lapsed if it is not employed. Again, these three or four year periods do not look unreasonable to a layman. I think it would be reassuring if the hon. the Minister at the appropriate stage in the debate could let us know that these are based on the recommendations of the experts, as I imagine they are. Reassurance in that regard would be appreciated.

One is mildly worried about clause 67(3), which deals with presumptions in relation to new substances. Subsection (3) states—

What we are dealing with here is, for example, the case where person B has produced a product by a different process than the process used by patentee A. It seems to me difficult for person B to prove that has used a different process, unless he discloses at least something of the nature of the process concerned. It is a drafting matter and it may be that this could be tidied up to advantage later on.

It is important to say that we want to express appreciation for the very adequate provision made for appeals throughout this legislation. I think this is a healthy feature and something that we would certainly have pressed for had it not been in the Bill, but I think nobody can cavil at the provisions that have already been drafted.

*In conclusion we want to state very clearly that we reserve our right to raise such questions as we may think †It in the Committee Stage and then to act in the light of the debate on those questions. But at this stage we have no objection whatsoever against the passing of the Second Reading of the Bill, and we express our appreciation for the various matters I have mentioned here.

Mr. Speaker, we on this side of the House would like to express our whole-hearted thanks to the hon. member for Parktown and the Official Opposition for their support of the legislation. Actually, the legislation is very much more important than most of us realize. It is legislation with a tremendously long history. I went to the archives to delve for some of the background to this type of legislation and discovered a few interesting things which I should like to tell the House. Another reason for my doing this is to point out very clearly specific aspects relating to the principles of the legislation in view of its historical beginnings. Firstly, I refer to clauses 79 and 80, which afford protection to specific patents of strategic value. In other words, when he considers a patent to be of strategic interest, the hon. the Minister of Defence, or any other hon. Minister can declare the relevant patent secret. The background to this is very interesting. If we look at the era of the Second World War and the period which preceded that war, it is clear that Germany obtained a vast number of patents in indirect ways, from the oil companies of the world in particular. There were literally thousands of patents. Those patents contributed towards Germany being able to use synthetic substances in its armaments during the Second World War, substances which astonished the whole of the Western World. That is one example. A second example is that the first armoured cars, the Graf Spee, as well as the German submarines, were made of the lightest known metals at the time. Those metals enabled them to transport tremendous amounts of fuel in their submarines and ships. It was because the metals were so light and strong. Those metals were derived from patents which Germany bought from America with the aid of secret agents.

A third interesting example is optical instruments. The Germans entered into an agreement with the Americans in terms of which the two countries exchanged knowhow on optical instruments. There was a very interesting clause in the contract which provided that the two countries each had to make every new manufacturing process known to their “confidential representatives”—as they called them. Those confidential representatives had access to the relevant manufacturing techniques. It is interesting to note that after the war, investigations were undertaken in Germany which revealed that the confidential representatives of the German navy and defence force sent representatives directly to the American optical factories in order to gain knowledge there. This is part of the background which gave rise to certain principles being taken up in the Bill under discussion, for instance the protection of secret patents which are of strategic value.

If we consider how legislation concerning patents originated in the world, we find that it is very interesting. A very interesting clause which comes into question, is the so-called term clause, a clause to which the hon. member for Parktown also referred. According to the information at my disposal, the first patent which we are aware of was granted on 12 March 1236. The relevant patent was granted to a tailor by Henry III of England to manufacture a certain type of material. The king provided that he could manufacture the relevant material for a period of 15 years only and that anyone else could manufacture it as well after that. Here we already encounter the concept of patent terms. I want to refer to the second patent in history. On 19 June 1421, an Italian obtained a patent to transport heavy equipment. In 1449 a patent was registered in England for the manufacture of stained glass. The holder of the patent could manufacture the stained glass for a specific term only.

The first patent law which we are aware of, is that of 1663. It was not a general patent law like the one which we are considering now. It was a specific law which granted someone the right to manufacture his “water commanding engine”—and I really do not know what that is—for a period of 99 years. We note that the term clause is also relevant here. In 1852, the Patents and Law Amendment Act came into force in England. Many interesting variations followed.

I just want to mention one more interesting example to the House. This is a patent which was granted in 1688 to a man called Peter Duclen. He was a person who could weave beautifully. The British Government registered his patent for the manufacture of silk, but on condition that he would first teach his wife and then his children the same weaving process, and then employ apprentices so that everyone could know how his weaving process worked. Only 158 patents were registered from 1711 to 1734, while at the moment an average of 200 000 patents are registered annually.

Finally, I should like to say something about the beginnings of our own legislation. This Government is always being criticized on all levels by the Official Opposition for not being prepared to consult. The Government is accused of doing things summarily, and that once they are done, it makes them law and then argues about them in the House. This legislation is clear proof of the pattern which this Government always follows for all its legislation and all its other activities, even if they be political activities.

We heard from the hon. the Minister that the legislation of the Cape of Good Hope was passed in 1860 and that the ordinance, in the case of the Transvaal, became law in 1902. The first law of the Union Government in this regard was Act No. 9 of 1916. That Act was amended in 1935 and once again in 1941. Then, in 1948, this Government appointed a commission to make an intensive inquiry into the Patents Act in order to amend and consolidate it. This committee published its report in 1950. This resulted in Act No. 37 of 1952, the one which we are amending again today. The same pattern has now repeated itself once again. In 1971, the Minister announced that a committee would be appointed. The committee published its report, and today we have legislation before us which gives effect to certain principles. One thing is very clear from these principles, and that is that patents in South Africa are now so extensive that these patents must be classified. The patents must be divided into certain classes so that they can be filed. It must also be possible to trace these patents when someone wants them. If there are 300 000 patents lying in a heap without having been filed and if there is no register, one will never be able to find a patent. In any event, if one should eventually find it, it may perhaps be too late. That is why there are now eight main classes, 36 subclasses and 53 000 subsections according to which the patents will be classified.

I want to conclude by saying that we on this side of the House consider this Bill a very important measure. We accept the principle that peoples’ patent rights must be protected and the principle that persons who are highly qualified are the only ones who may have the right to act as patent agents. We also accept the principle of an examination board. I should just like to mention to the Minister that there are a great many technical aspects in the form of specifications, etc. included in an application for a patent. The legislation provides for the establishment of an examination board. Lawyers and all sorts of other people serve on that board, but no technical people are represented on it. I want to ask the hon. the Minister whether he will not consider also appointing a member of the South African Council for Professional Engineers to this board. A person like this will then be able to deal with the technical aspects of the examinations. With that, Sir, I wish to conclude. We on this side of the House support the legislation wholeheartedly.

Mr. Speaker, I should just like to say that I agree with the hon. member who has just spoken that the engineers’ profession should have representation on the council. I hope the hon. the Minister will consider that.

I rise, however, to say that we on this side agree with the principle that an inventor should be protected by law against a second party stealing his idea or using it or disposing of it for his own personal use or benefit. The Bill lays down the procedures as to how this protection should be given and how it should be administered in the light of present-day circumstances. We shall therefore support the Second Reading of the Bill.

As the hon. the Minister has already said, the Bill is the result of considerable research and work on the part of a particular committee on which were represented a number of professional societies and institutions. We are particularly pleased to see that industrial representatives such as the Chamber of Mines and the Chamber of Industries were also asked to give their views in this regard. From various parts of the world comments were also received in connection with the way patent law affects South Africa internationally.

The Bill is a logical development of the existing Patents Act of 1952 which in turn was the result of the updating of Act No. 9 of 1916. It is interesting to note that the 1916 Act introduced for the first time examinations for patent agents. The replacement of the present Act by the Bill will, as has already been said, bring South Africa into line with the British Patents Act of 1977 and also with the European Convention on Patents. It is also interesting to note that the nine EEC countries are parties to the European Convention on Patents and they now have a central patents office in Munich. South Africa will now be brought into line as far as the British law and the laws of the EEC countries are concerned.

One major change as a result of the Bill will be the eventual phasing out of the patent agent. In time he will be replaced by a person called a “patent attorney”. I think we must accept that patent work involves a certain degree of legal training and that such legal training is most essential in any work concerning patents. I think, however, that we must also accept that 90% of the work which is done in regard to patents is more of a technical nature and involves such disciplines as chemistry and engineering and people who are specialists in machine design and so on. In the past patent agents as such had to qualify in these particular disciplines while attorneys who were engaged in patent work did not necessarily have to be qualified to the same extent as patent agents. In future anyone who is engaged in patent work shall be termed a patent attorney, but he will be required to qualify as an attorney, and at the same time technically, as has been the case with patent agents in the past.

We were rather concerned with the future of the existing patent agents. We are, however, pleased to see that those who are practising at present will be allowed to continue to practise until either their death or retirement. We are very pleased that the hon. the Minister has seen †It to include such a provision in the Bill. We are also pleased, as the hon. member for Parktown has said, that time will be given to lawyers who practise in this field to qualify technically so that they can continue to practise as patent attorneys.

It could be said that this was a case of the legal profession endeavouring to draw within its area of jurisdiction all work concerned with the drafting of patents. In fact, such a comment was made when we looked into the Bill. It was explained, however, that the patent attorney’s work is on a par with that of the conveyancer which is another specialized branch of the legal profession; that is to say, whereas conveyancing involves the defining of the boundaries of properties and the determination of an individual’s claims to such property, the patent attorney’s drafting of claims for patents is equivalent to the defining of an individual’s intellectual property and his claims to such property. When one considers the complexity of our industrial development and research today, especially in the field of science, and the legal implications and consequences of any disputes involving a patent claim, one sees that there is a great need for a greater level of professionalism in this particular branch of the profession.

In conclusion I should like to refer just briefly to clause 25 which concerns patentable inventions. The principles contained in this clause are identical to those applied in the European convention and in the new British Act. Therefore this provision is in line with international provisions and use can thus be made of case laws from those countries in any future disputes. The hope has been expressed that in due course the USA, Japan and Russia will follow suit with a similar provision in which case this provision will be truly international in nature.

We believe this Bill is an improvement on the existing legislation and therefore we shall support the Second Reading.

Mr. Speaker, in the first place the Bill before the House at the moment is of a particularly technical nature. It also happened by chance, for which I do not reproach anyone personally, that we in the House had only a very short while to study the Bill. However, one must concede immediately that for the most part, this Bill rearranges provisions of the original Act, arranges sections in a different order and also reformulates sections by adding parts of some sections to others. Nevertheless, there are a number of real changes included here, and the hon. the Minister did refer to them in his speech.

Firstly, I just want to come back to a few remarks by the hon. member for Parktown. It amazes me, with such a technical Bill, that anyone should be unable to pass up the opportunity of talking about the blunders which nationalist politicians make abroad, blunders which may be rectified by these technical matters. I really wonder what a person is aiming at when he has to drag this argument into a debate like this. He referred to a few matters and dealt with them very quickly. I hope that the hon. the Minister was able to take note of all of them.

Did you understand a single word of what I said?

I want to refer to clause 25(11) which was quoted by the hon. member for Parktown. It provides that developments in surgery and medical science cannot be patented. What he found obscure here, is not obscure to me and I believe that it will not be obscure to most members of the House who read it. One must take into consideration that from the earliest times one of the basic principles of patents was that they be registered to the advantage of the community and that, in other words, patents cannot be obtained on processes which may be responsible for saving lives, etc.

The hon. member also referred to clause 32(6) which concerns micro-biological processes. If his problem is that he does not really know what a micro-biological process is, then I have the same problem. However, if he looks at clause 96 and sees the relevant clause in conjunction with it, he will see that its promulgation is being postponed until the Registrar of Companies is prepared to continue with it. The hon. member also referred to clause 67(2) which concerns the process patent. It is an elementary principle of evidence that where it is not otherwise possible to prove something, presumptions apply. The word “presumptions” is also found in the margin next to clause 67. In other words, if a result is obtained by means of a certain process, it is presumed that the process which is patented and by means of which the result is obtained, was used. It is presumed until the contrary is proved.

I now want to come to the few ideas which I should actually like to convey to the House. The hon. member for Wonderboom delved into the history of patents. I want to refer back to matters which he and the hon. the Minister referred to, but I want to concentrate more on the technical legal aspects. In the first known Patent Act, the Venetian one of 1474, a number of principles were stipulated which I should like to mention. For purposes of patentability it was said that the make or process had in the first place to be new. As far back as that time it was said that it should not be obvious, and that it should be capable of utilization in trade. Furthermore, it had to be an apparatus or a discovery. These are four concepts which one will still find in all modern legislation in the world today. It was also prescribed in that legislation that patents were protected for ten years. The legislation also provides that the State receives certain rights of use by complying with certain conditions. A ban was also placed on interference with the rights of the patent holder and provision was made for an action for compensation. It is important to note that as far back as in 1474, there was a provision in the preamble to the Act which revealed that the purpose of the law was to obtain the benefit of the invention for the community.

Another patent Act was the so-called English Statute of Monopolies of 1623. For a long time this Act was thought to be the first patent Act, until the discovery of the Venetian Patent Act. This legislation was also reflected in the Cape and Natal legislation of 1860 and 1870, to which the hon. the Minister referred. However, we find a new approach to this subject in the Transvaal where the “Oktrooiwet” was put into effect in 1887. This was followed in 1891 by an Orange Free State “Oktrooiwet”. This Act is unique because it does not define an invention, but merely states the legal requirements—in other words, the extrinsic requirements for patentability. I quote from section 1 of that Act which describes what patentability means—

The definition of invention as set out in the Act of 1952—which is still the present legislation in operation in this regard—comes from this very legislation.

The South African Act of 1916 proved that the Transvaal had won at that stage. But there were nevertheless two important changes. The first is that the species was recognized. Reference was made to an artistic process, a machine, etc., and this is also reflected in our present legislation. Furthermore it is interesting to note that there was no reference to a mere discovery.

Patentability—and this is a new principle which appears in the Bill—was judged in terms of the legislation of 1952 according to the nature of the discovery. In section 1 of that Act an “invention” is described as follows—

The words which follow upon this in brackets, are an amendment effected in 1964—

This approach of qualifying inventions in this way, cannot be justified by jurisprudence. The extrinsic aspect which appears in the legislation and from which the previous concepts are left out, is still essentially the same as that which appeared in the legislation of 1474, viz. that such an invention must be new, that it must be usable, that it must not be obvious and that it must be capable of use in trade, industry or agriculture. To limit the scope of the concept “invention” is, as I have said, not correct in law. The matter is rectified in clause 25 of the Bill. It reads—

After that we have a translating error in the Afrikaans text, but I think the hon. the Minister can rectify it by means of an amendment, by adding something like—

The English translation refers to “inventive steps”. There is no further qualification and it is also a good thing that the legislation is being correctly dealt with in accordance with jurisprudence.

The requirement “not obvious”, according to the provisions of the 1952 Act, were defined in section 23(1)(d) as being one which was not common knowledge in the art. In other words, reference is being made in this regard to what is not common knowledge. In the legislation before the House at the moment, clause 25(10) provides that “not obvious” means that it is not obvious to a person skilled in the art of the relevant industry. I referred earlier to the limitations on the interpretation of “invention”. In point of fact, clause 25(2) consists exclusively of a codification of terms used in previous legislation as well as of rulings issued by our courts in the interim and put forward as guide-lines and precedents for appraising matters relating to patents. The introduction of the word “discovery” (“ontdekking”) which appeared in the Transvaal “Oktrooiwet”, is also interesting in this regard. The distinction between “invention” and “discovery” as described in our courts, is that “discovery” means that something is hidden and that someone finds it. The concept “invention” actually involves a little more and can be seen as “the inventive step”.

I do not have much more to say, but I just want to refer to an interesting aspect, i.e. the question of the registration and qualifications of patent practitioners in connection with clauses 88 and 89, read in conjunction with the provisions of the Universities Act, 1955. We find the new provisions in clauses 20 and 21 of the Bill, as well as the basic adaptation concerning patent agents as against patent practitioners. Reference is now also made to patent attorneys. The important aspect which the hon. the Minister indicated in this regard, is that clause 22 protects the existing rights of established interest groups. He also indicated that he is going to move amendments to this. I agree with him and I think the whole legal profession will support him in this. Indeed, I think the legal profession should like him to draw up the amendment in such a way as to withdraw permission for the untrained person to continue to practise. The attorneys are keen to specialize and want to retain what they have. One can understand this if one sees how others are interfering in their province as regards various other spheres.

What is also interesting in this regard is that as far back as 1952, reference was made to this matter during the debate on the legislation of 1952. At that stage there was a dispute between the Transvaal and Cape Law Societies. The then Minister, Eric Louw, chose not to involve himself in the dispute. He left the position as it was and recognized the established interests. In the present case the hon. the Minister has the support of the joint law societies of the provinces of South Africa, but he is apparently experiencing pressure from other established interests in the community.

I want to conclude by saying that I think the legislation is of a very high standard, from both the technical and the judicial points of view. In the short time I had to investigate the legislation, it became clear to me that a great deal of trouble has been taken with it. One must bear in mind that the commission which worked on it, has been working on it since 1971, whereas we had to appraise the legislation here within a day. This complicates matters, but generally speaking I want to convey my thanks to the hon. the Minister on behalf of my former colleagues in the profession, for the thorough way in which the legislation has been dealt with.

Mr. Speaker, the hon. member for Randburg said he had only a short time in which to study the Bill. I can only say to him that this is a very long Bill and that none of us could really study it at length.

†All the speakers before me welcomed the measure and as such I am not going to comment on what they said, save to say that we welcome the special recognition the hon. the Minister and the hon. member for Amanzimtoti gave to the legal experts in this matter. This is a very highly specialized subject and the experts are doing yeoman service in the interest of South Africa. We are pleased to hear of the close co-operation between South Africa and foreign countries in relation to the exchange of knowledge. This can be evidenced by the fact that 5 500 of the 8 000 applications which are received in total come from foreign countries. With the exchange of knowledge South Africa can be a beacon of light throughout the whole of Southern Africa. We welcome the thought expressed by the hon. the Minister that there is a possibility of closer co-operation between South African and other States in Southern Africa. This augurs well for the future.

I understand that the Bill has been the subject of discussion over a long period of time by a committee of experts drawn from every field in South Africa. In addition we heard that the Bill was published twice during 1977 and that comment was obtained both inside and outside South Africa. I believe all the comments and memorandums which were received were reconciled and brought together in this legislation; so I would say that this comes as agreed legislation, both from inside and outside South Africa.

As we have heard, the Bill is based on the European convention which is operative in the European Economic Community and which, I understand, operates most efficiently. The original Act was based on the 1902 Proclamation of the Transvaal, so it is obvious that it had to be modernized to comply with modern technology.

We have heard at length from hon. members on all sides of the House how acceptable this legislation is and from our side we will certainly not oppose the Bill.

Mr. Speaker, I want to deal, if I may, with three specific points to which I should like to direct the hon. the Minister’s attention. The first is the question of the professional status, in terms of the Bill, of the persons who are concerned with the creation of the patent attorney. I, for one, support this concept and welcome the provisions in this respect, but I would like to ask the hon. the Minister whether it is not possible to make representations to include in the study for LL.B. degree a course of study in law pertaining to this, so that we may find that the university student who obtains the B.A., LL.B. degree, in fact has some degree of knowledge of the subject. In fact, he may even be fully qualified to practise as a result of the degree of specialization within the LL.B. degree. The reason why I raise this is that, while we are making provision here for patent attorneys, there is no provision, obviously, for counsel to have any specific qualification relating to patents. My own experience shows, and I am sure the hon. the Minister’s experience in earlier days will also show, that whereas some counsel specialize in patents, either because they have previously been patent agents or as a result of experience, the actual degree of qualification as a result of university study of counsel in respect of this matter is almost minimal. One finds that counsel, as I said, either pick it up as the result of experience or as a result of their earlier activities. I think that, whereas we are now dealing with the patent attorney, the one matter which we are not dealing with at all is the question of counsel and his qualification in this field. I agree that the concept and the approach is that counsel can be instructed in such a manner that he can qualify himself to deal with almost any matter, but in my view there is a very strong case to be made out for the argument that there should be included in the LL.B. course some aspects of law which pertains to the patent law or, if not that, an entire course directed towards this particular field.

The second matter is—the hon. member for Amanzimtoti referred to it in passing—the fact that one cannot really practise as a patent attorney or as a patent agent unless one has some background of some scientific or technical skill.

Again I should like to ask the hon. the Minister whether it is not possible to make the B.A. course which precedes the LL.B. degree more scientifically or technically orientated in order to give a better background to this, because I do not seriously believe that the kind of training in the humanities one obtains for a B.A. degree is very valuable if one wants to become a patent lawyer. I do not think there is any question about that. I should like to put this to the hon. the Minister, for his consideration and perhaps for discussion with his colleague, the hon. Minister of National Education, at the appropriate time.

The second matter I should like to raise, is the question of the independent States which were homelands and their problems in relation to this situation, because South Africa is and has been a member of the convention for very many years. However, they are not members of the convention, and I do not know whether they have any prospects of becoming members in the immediate future. I should like to know from the hon. the Minister what steps have been taken in order to protect the situation in the homelands in a number of respects: firstly, in so far as the homelands’ interests themselves are concerned and, secondly, in so far as the question of exports from and to the homelands and South Africa is concerned, because quite obviously, if one has a two-way trade between the two territories, one may find that if one registers a patent in South Africa, that patent will have no protection in the independent homelands at all unless there is some provision to have it recognized there. I wonder what steps we are taking, in this regard, in order to either provide, at least at the moment, bilateral treaties in this connection, and what steps we are taking to protect the homelands themselves because of their inability at the moment to become parties to the convention?

The third matter I should like to raise is one that is somewhat dear to my heart, but which is perhaps of a more technical nature. It relates to the provisions contained in clause 59 of the Bill. Clause 59 deals with the situation of employees. A degree of protection is given in the sense that a contract of employment may not contain a provision in terms of which an employee is required to assign to his employer an invention made by him otherwise than within the course and scope of his employment, or a provision which restricts the rights of an employee in an invention made by him more than one year after the termination of the contract of employment. Two points arise out of this.

The first is the problem of determining what is and what is not within the course and scope of a man’s employment. He can work on one thing from 9 to 5 and he can work at home on something else and yet it may well be within the course and scope of his employment, because it arises directly out of, or is in connection with, this particular matter.

The second thing which worries me is that one very often finds that the very highly intelligent boffin will be working for a firm for what I would call next to nothing and will create an invention which can be worth millions to that firm, and yet he only gets his salary at the end of the month. The Germans have an approach to this, which I should like to commend to the hon. the Minister, and that is that in respect of inventions of employees there is some form of compulsory royalty which an employee obtains. It is true, and it can be argued without any doubt, that in many cases the employee has the vast resources of a massive organization at his disposal helping him to invent a particular article, but a royalty based on what I think could only be a reasonable basis, would seem to me in the circumstances to be almost essential, because without it the employer gets the benefit of everything that flows from the invention. A man may have created something that is absolutely invaluable but is really left out in the cold. As I say, in Germany they have this approach that at least the employee should get a royalty. I would like to commend this to the hon. the Minister for his consideration, because, after all, it is people’s brains which invent; it is their brains which create. I therefore believe that we should see to it that it is the brains that are rewarded and not always the big battalions that provide the cash.

Mr. Speaker, I have often had to rise after the hon. member for Yeoville in this House. I am glad to be able to do this today without having to quarrel with him. I have no need to cross swords with him today about his contribution to this debate.

Most of the things that can be said about the legislation have already been said. However, there are a few aspects which I should like to highlight. I believe that inventions and the protection of inventions are of the greatest importance to South Africa. It is very interesting to read the debate which took place in this House in 1952 on the previous Act, the Act which is being amended today. It is true that an inventor often has a very humble position in an organization and that he need not be a trained engineer to come up with a brilliant invention. Furthermore, it is true that such a person often does not have enough capital to develop and exploit his own invention, but needs a great deal of help to do this, to test its practicability. Then, when he has perhaps proved in his own modest way that it is in fact practicable, he is often cheated of his reward, not having been able to obtain the necessary protection and the necessary skill to manage his project.

Many of these inventors are very interesting people. I have one in my own constituency. He has taken up a great deal of my time, but I have never refused to help him. He must be one of the most interesting people I have ever met. He has taken out world-wide patents on several inventions and has a very interesting story to tell about where he finds his inspiration for his inventions. He says that he sometimes wakes up in the night and finds a little man who has woken him standing next to him. This little man tells him about the inventions. Then he gets up at once and he makes sketches of what the little man has told him. The information given him by the little man has enabled him to take out world-wide patents on inventions which work.

Is it not perhaps a little woman?

I believe that the legislation which is before the House today provides the necessary protection for people who have such little men at their service. I want to allege that in this specific period of our economic history in South Africa, with the possibility of being cut off from certain resources—technological and otherwise—it is very important that there should be a clause in the Bill which extends the period of protection from 16 to 20 years.

During the 1952 debate, too, a plea was made which unfortunately fell on deaf ears at that time, viz. that there should be an opportunity for people with inventions to take their inventions further, to have them developed and made economically exploitable. However, ten years later, in 1962, the S.A. Invention’s Development Corporation was established by an Act of Parliament. There has been splendid progress in this matter. The hon. the Minister referred to this earlier in the debate. In 1974 that corporation received the right to obtain long-term loans from the State up to a maximum of R5 million. This corporation has a very interesting method. It would be a good thing for our inventors to take a fresh look at these facilities which are available to them and to take cognizance of the fact, not only that this Act now protects them, but also that there is a body they can go to with their inventions. This corporation shares in the risk of the development of such an invention, without necessarily sharing in the business enterprise as such. I think it must be Utopia to any inventor who has the makings of an entrepreneur.

Splendid inventions have been registered in South Africa in recent years and are now being developed. The hon. the Minister referred to a few of them earlier. In the annual report of this development corporation, there are several very interesting examples. There is the unique ore thickener, for example, which is most important to South Africa’s mining and mineral industries. There is a certain fractionation process of the Natal Blood Transfusion Service which is being used under licence by a very large company in Japan at the moment and which is earning money for South Africa in that way. There is a special method for connecting steel reinforcements, which is undergoing field tests in America at the moment, for there is an enormous market for it, and it will certainly mean a great deal to South Africa in terms of foreign exchange in the future.

The brilliant inventions of the Railways in the last few years are well known. It is true that the dolos has not been patented, because the person who invented it said that he was making the invention freely available for the sake of technological development. The bogey system for trains which is used all over the world today is something which has won South Africa great technological fame. The S.A. Airways has also developed certain techniques which, after being described in our maintenance handbooks, have been incorporated into the manufacturing handbooks of the original manufacturers. For this reason it is extremely important for us to provide patentees with the necessary protection. I believe that we have reason to be proud of the state of patent development in our economy. The economist Raymond Vernon has a certain theory with regard to the cycle of inventions. He says that if an discovery is made in America, for example, the Americans begin to exploit that discovery. They begin to develop it and they begin to make general use of it. The next step is the exportation of that discovery or invention to other countries. In this way an importing country gets hold of it. Immediately it becomes a stimulus to the development of further technological additions to the invention in the country which has imported it. In this way, the general standard of the invention or discovery is considerably raised. To complete the cycle, the discovery or invention is exported back to the country of origin as a greatly improved product. South Africa, too, now finds itself in such a position. We too are already improving and exporting to their countries of origin certain inventions which we originally imported.

I want to mention a final example of a meaningful invention. The S.A. Railways have developed a unique technique for the cooling of perishable products in mechanical cool-trucks. This is an invention which is extremely important for the marketing of fruit in countries with a tropical or sub-tropical climate. I am convinced that our neighbouring States will benefit greatly from such an invention.

Finally, I just want to point out that if we bear in mind the possibility that we may lose the use of computers and other technological apparatus through boycotts, the research which has been done over the years in the field of the miniaturization of electric circuits, for example—research which is based on knowledge which originated elsewhere—can be of great use to us. This will be the case, of course, if we are indeed deprived of these sources of electronic and other kinds of technology. For this reason, I believe, it is important that this legislation should be before the House today, that extra protection should be provided, that the procedure should be streamlined and that our inventors should take cognizance of the fact that we take an interest in them and want to offer them the necessary facilities for creating and developing their inventions to the maximum advantage of South Africa and its people.

Mr. Speaker, I thank the hon. members for their co-operation in connection with the support of this legislation and its underlying principles. Initially I was mindful of the possibility that hon. members might not have sufficient time to study the legislation, and that as a result, we might not be able to have a meaningful debate. At one stage I felt inclined to offer my apology that this legislation only came into the possession of the hon. members at such a late stage. But, honestly, after the performance by hon. members this afternoon, I am considering recommending to my colleagues that in future they should follow the same procedure in connection with their legislation! In this way we progress much faster and the work is disposed of much more efficiently.

This is an intricate piece of legislation and it is a fact that some hon. members only had access to it for the first time yesterday. I really want to compliment the hon. members who have taken part in the debate, on their exceptional contributions. These were contributions which attested to a study of the legislation and knowledge of the subject. I think their contributions were very useful and can, in the nature of things, be considered.

The hon. member for Parktown has, inter alia, referred to the same aspect to which I referred, and that is that the relations between countries are very often based on common interests rather than the mere need to negotiate. In the nature of things, one of the most important factors which tie nations together, is the self-interest of the respective countries involved in such a relationship. It remains a fact, after all, that the basic motivation in our system, namely a profit motive, can be translated into another form to the decisionmaking of countries when they decide whether they want to enter into negotiations with other countries. In our own case, too, it is more true than one is often inclined to realize. Geographically, our trade relations extend across many more countries than our political or diplomatic relations do. It is an indisputable fact that this forms the basis for the extension and development of our relations in other fields. I therefore believe that there is nobody who will dispute that our technological know-how and our abilities in other directions could form the basis of a successful broadening of our relations with other countries.

Sir, allow me, too, to make another remark in this connection. There is a statement which is often made without taking account of the true facts. I am not now referring to a particular member; I am referring to a general statement which is usually made. It is often said that if it had not been for the political dispensation in force in South Africa, our ability to do business specifically with Africa, would have been considerably strengthened. Without wanting to get involved in a controversy about this particular subject at this point, I want to say that the factors which stand in the way of the extension of our trade relations with many countries in Africa, have nothing to do with the political dispensation in force either here or there. There are financial and other reasons involved. I think it is well that we should say to one another that the overriding factors in this particular connection are not of a political nature, and I wish to stress that. If the political dispensation in other countries had been the decisive factor in the decision whether or not countries should trade with one another, then all will agree that there would be very, very little international trade. I am merely saying this because I want to put the record straight.

†Mr. Speaker, the hon. member for Parktown referred to certain clauses in the Bill which I think can more appropriately be discussed in the Committee Stage. I should nevertheless like to refer briefly to some of the provisions which he referred to. Amongst others, he referred to clause 25(11). The answer to his question is simply this: For an invention to be patentable, it must in the first place be new, and in the second place it must be capable of being applied in industry, commerce or agriculture. He will understand that the treatment of bodies is not capable of being applied in industry, commerce or agriculture. Therefore, it is excluded from this provision. As regards clause 36, I have the same problem as the hon. member. I do not understand it either, and I do not profess to do so. If the hon. member is not able to find out more about this by the Committee Stage, we can discuss it again. The hon. member also referred to clause 67(3). This is the presumption clause. I think the hon. member for Florida indicated exactly what that means. I am satisfied that the position is now clear and that we need not waste any more time on this matter.

*The hon. member for Wonderboom has made an interesting contribution. Like other hon. members, he has also referred to the historical background to patent legislation here and abroad. He has also shown very clearly the connection which exists between the legislation and the progress made in connection therewith, as against the progress made in the scientific and technological fields. I want to thank him for the study which he and also the other hon. members have made of this within a very short period. I want to refer to only two aspects which he has touched on. In the first place he made special mention of the fact that in respect of this legislation, there has been consultation on a broad basis between the private sector and my department. That is true, but that does not mean that it is only true in connection with this specific Bill. I have repeatedly said in the past, and I wish to say it again, that the subjects of legislation with which I come to this House, are subjects which it is particularly appropriate to discuss with other people who may be affected. For that reason, the process of consultation between both my departments and the sectors which are affected, is on-going process which I very strongly support. I am personally of the opinion that if we can have legislation about which there is unanimity in the case of these subjects, it would be more effective legislation. What is more, there will then be a greater possibility that people will not attempt to evade the legislation, but rather to implement it. I wish to thank him for his comments. As to his suggestions in connection with the composition of the examination board and the reference to the possibility that a representative of the engineering profession be included therein, I wish to say immediately that there is no limitation on the number of members which I can appoint in terms of the provisions of the applicable clause. I can give him the assurance that his representations in this connection are not unfounded and that in determining the composition of the examination board, I shall take his proposal into account.

†The hon. member for Amanzimtoti supports the Bill too and I should like to thank him for his support. He has correctly stated that there is a large measure of uniformity between this legislation and similar legislation in Europe, something which should facilitate the exchange of knowledge amongst the various countries and I can assure the hon. member that that is the very essence of what we are trying to achieve by means of the legislation. Other countries, in turn, have the very same objects in their legislation.

*I wish to thank him sincerely for his cooperation in this particular connection. The hon. member is quite correct in stating that the work of the patent agent or, as will in future be the case, the patent attorney, is mainly of a technical nature. That is why it is our object, among other things, to create a new speciality profession by means of this legislation—that of a patent attorney. A part from the normal legal qualifications to which the hon. member for Yeoville has referred, there is also an additional curriculum the scope of which, even in terms of the existing legislation, is such that I personally would not be in too much of a hurry to tackle it. The hon. member for Yeoville may perhaps find it interesting to leran that even in terms of the existing legislation, the course for a patent agent has a duration of four years, but if one looks at the subjects, both members’ statements are confirmed, because it is expected of a patent agent, apart from having to pass subjects in the humanities and the law subjects which form part of his legal qualifications, also to enter the sphere of the natural sciences and to take up courses like physics, chemistry, mechanical machine draftsmanship and design. There is therefore a need for a strengthening of the training in this connection. I shall return to the proposals by the hon. member for Yeoville as to how this can be effected in practice.

The hon. member for Randburg has made a very interesting contribution. In the course of his speech he gave a particularly interesting definition of “invention”. He says one lifts up a blanket and discovers something there. The hon. member is younger than we are; we discover it without lifting the blanket. [Interjections.]

I found his juridical approach to the Bill particularly interesting. I agree with him that through the Bill we are effecting a considerable improvement to the legislation from the point of view of legal science. This is basically ascribable to the fact that since the consultation began in 1971, we have been able to consult a wide spectrum of professions because they were all involved in the legislation in one way or another. I want to thank him for his contribution in this connection. He has also referred to clause 27, which is of a protective nature.

I also wish to thank the hon. member for Walmer for his support. It was really interesting to be able to see how easy it is to steer legislation through the House when one deals with hon. members who are in a reasonable mood.

Basically, the hon. member for Yeoville really referred to three facets. The first concerns the training of students in law as such. He has said, quite justifiably, that advocates who are members of the Bar, have often had no specialized training in the particular subject which this Bill is about, and that very often they have only acquired that knowledge while practising as attorneys. I do not, in the least, wish to disparage the training of the senior members of the Bar, but the fact remains that they do not have much training in connection with the Deeds Registries Act either, an Act which in fact forms part of the daily work of an attorney. The same applies to notaries. This type of training is often in-service training and is not included in the courses for academic training at universities. There have already been representations, amongst others to the University of South Africa, to ascertain whether it would not be possible to strengthen the law course by including these particular subjects in the curriculum. Until now they have not been successful. The hon. member is aware that as far as the taking of examinations and the contents of courses are concerned, the Department of National Education deals with those. I do not know at this stage whether it will be practicable, but I do think that theoretically it is a perfectly acceptable idea. One must see whether it can be implemented in practice.

The hon. member has also referred to the position of those countries which become independent as a result of our relations policy, i.e. the homelands. It is true that the homelands are not members of the convention, but I want to say immediately that this also applies to the BSL countries. They are not members either. Just to reassure the hon. members, however, I want to point out that there is indeed an agreement for reciprocal registration of patents between us and these countries. Indeed, this is also the case between us and other countries, because to make patents enforceable, requires reciprocal registration in the countries concerned. That particular facet has therefore already been covered.

The hon. member has also referred to clause 59, specifically to two facets thereof, if I understood him correctly. The first concerns a definition of what is in a person’s contract of employment and the other concerns the need for protection of employees who make inventions while they in the employ of a particular firm. If one looks at clause 59, one notices that it invalidates certain conditions in contracts of employment. That in itself, in my view, constitutes protection of the employee against an employer who wants to exploit him.

†In other words, the essence of the clause is the very objective to which the hon. member has referred. I concede immediately that it is very awkward to define the grey area when it comes to the question of the definition of what is within the scope of his employment, but the hon. member will understand than in many cases, the employee is capable of doing extensive research work in the course of his employment relationship with his employer. Therefore, whilst the essence of this clause is the protection of the employee, we must understand that where the employer affords the employee facilities to enable him to invent something which is patentable, the position of the employer is also very important.

*Therefore, in this particular connection I wish to state that as regards a definition of “in the course of his employment”, what we have is the principle which applies in respect of the responsibility for acts by agents or employees. I concede that it is not very easy to define the grey area properly. We can look at it again during the Committee Stage.

As far as the question of the payment of royalties between the employer and the employee is concerned, I concede in the first place—and the hon. member will agree with me—that there can be circumstances in which employees are entitled to a royalty. I doubt, however, whether this is something which we should try to arrange by way of legislation. I think it should much rather be arranged by way of a service contract between the employer and the employee. I fear that if we were to try and arrange that by way of legislation, we would probably have to define so many details, e.g. to specify when such payment will be compulsory, that it will not really be effectual.

There is not a balance of bargaining power between the employer and the employee. That is the problem.

I think the basic element which ensures balance of that nature, is that the people who have the necessary expertise and who are responsible for the new inventions, are really much-sought-after people as far as the employers are concerned. I am not always sure that one can simply assume—if one may make such a general statement—that the bargaining power of the employee is less than that of the employer. Practical experience will have to teach us that. I wish to give the assurance that if ever evidence should come before me that the position of the employee is being exploited, I shall immediately take steps to rectify the matter. I trust the hon. member accepts this assurance from me.

The hon. member for Florida is a very fortunate person because one of his voters has the assistance of a little man with a fertile mind. If I tell him that voters of other colleagues also have little men, but that they are not so constructive that their ideas lead to exploitable inventions, he will believe me. I want to assure the hon. member that I have to devote a lot of time to people who want to sell things to me, especially fuel conservation apparatus. As a matter of fact, if they had not taken up so much of my time trying to sell this apparatus, the results of the thinking of their little men, to me, I would have had much more time to devote to this legislation. The hon. member will also appreciate that there are people who, at nighttime, see little men for reasons other than the hon. member’s.

The hon. member has referred to interesting examples of inventions which not only brought honour to the inventors, but could also be utilized in other countries. I thank him for his contribution.

Question agreed to.

Bill read a Second Time.

Mr. Speaker, I move—

In order to eliminate problems which, as a rule, arise with homelands of aliens who are called to arms by their country of domicile before naturalization, the South African Citizenship Act is being amended at present by my colleague, the Minister of the Interior, in order to bestow automatic citizenship on aliens who comply with certain requirements. This amendment will eliminate the possibility provided for in section 2, subsections (3), (4) and (5), of the Defence Act of aliens becoming liable for military service. For this reason it is proposed that the subsections be deleted in this Bill. In order to provide for a sufficient period of transition, especially for the repeal of Proclamation 363 issued in terms of section 2 on 29 December, 1967, the deletion will come into operation on a date to be fixed by proclamation.

A further amendment is aimed at the rectification of an arrangement, since 1974, between the S.A. Defence Force and the Artisans Board. When the extended 24 and 18 months’ voluntary service came into force in 1974, the Artisans Board agreed to make concessions of eight and six months respectively with regard to the prescribed periods of apprenticeship of apprentices who have been accepted for the extended periods of voluntary service. This arrangement was contrary to section 4(2)ter which provides for a maximum concession of four months for any period of initial service and three weeks for any subsequent period of service.

Because the provision for voluntary extended service has lapsed, due to the general extension of service during the last session of Parliament to 24 months, it has now become necessary for section 4(2)ter to be brought into line with this. The amendment proposes concessions of eight, six and four months respectively for initial periods of service of 24, 18 and 12 months with a further concession of 30 days for every subsequent period of service.

The Bill further provides legal sanction for work already carried on for some time and which is directed at safeguarding our borders against infiltration and terrorist attacks from outside. The action we contemplate taking, and which we are taking at present, will not only be in the interests of the country as a whole, but will also serve the interests of individual property owners along the borders. With a view to a more uniform system of military judicature, especially under prevailing circumstances, the restriction on the punitive jurisdiction of military courts in section 104(5)(b) in the trial of members of the Citizen Force, the Commandos and the Reserve, is deleted, as well as those sections containing duplication of provisions in this regard. Following on the general extension of military service, the penalties provided for failure to report for service are also increased, with a distinction drawn between failure to report on religious and other grounds.

*In terms of the present section 126A, the offence is refusal and not failure, as is the case in section 126 of the Act. This fact creates a practical problem because it is very difficult to prove that someone refused, while it is easy to prove that someone failed. If a person’s failure is due to his refusal, only he knows it, and subsequently it is only he who can prove that, and he cannot be forced to do so. By making failure the relevant fact, the prosecution is relieved of an impossible onus of proof. In any case, it seems that the failure has always been the point, and not the reason for it. Section 126A does not distinguish clearly between those who refuse on religious grounds and those who refuse on other inadequate grounds. That means that anyone who refuses is entitled to the advantageous non-recurring trial and penalty, while it was in fact only intended for the conscientious objector. The proposed amendment now makes the distinction, with the result that those who have sound reasons for their failure are not penalized, while those who fail to report on religious grounds receive only one trial and penalty.

Furthermore, the proposed measure also distinguishes between the conscientious objector who fails from the beginning to render service or to undergo training and those who have already fulfilled their initial unbroken obligation and then become conscientious objectors. The latter are punished less severely. Finally, those who fail for other unsound reasons are excluded from a non-recurring trial and compulsory punishment. They can be tried again for subsequent failure. The onus of proving that he belongs to a recognized religious denomination, the doctrines of which prevent him from rendering service, is placed on the person who fails to report because the fact is exclusively within his own knowledge. Because it is a fact which counts in favour of such person, it is not unfair to expect him to prove it. The same considerations apply where the proposed amendment placed the onus on such a person to prove that the reason for his failure is sound. The present section 126 of the Act contains similar provisions.

Mr. Speaker, the hon. members only received copies of the Bill this morning, and as the hon. the Minister has had a very tiring day and looks a bit pale, I move—

You seem to be pale too.

Agreed to.

Mr. Speaker, I move—

Agreed to.