I now wish to give my ruling with regard to the matter which stood over from the 4th March. The Magistrates’ Courts Act, 1917, Amendment Bill of which the hon. member for Newcastle has charge is restricted in its scope to an amendment of Section 28 of the Magistrates’ Courts Act which deals with the jurisdiction of magistrates. It is now sought by way of instruction to engraft on this Bill amendments of other sections of the Magistrates’ Courts Act which have nothing whatever to do with the subject-matter of the Bill and the question has been raised as to whether such instructions are competent. There have been instances both in the Cape House and in this House where similar instructions have been moved and agreed to without question, but there has been no ruling with regard to such instructions in respect of amending Bills. We have no Standing Order dealing with the matter and under Standing Order No. 286 we have therefore to resort to the rules and practice as laid down in the eleventh edition of May’s Parliamentary Practice which must be followed as far as they can be applied to the proceedings of this House. Applying the principles laid down by May, I hold that these instructions contain proposals which are outside the scope of the Bill as read a second time and entirely foreign to its contents. I must therefore rule them to be out of order and they are discharged from the Order Paper. It is, of course, competent for hon. members to introduce a Bill or Bills to give effect to the amendments to the principal Act which they have in view.

I think the ruling applies to the second amendment?

Yes, to all the instructions.

House in Committee:

On Clause 1,

I oppose this clause which means that I oppose the whole Bill. I regret to oppose it because I am of opinion that private Bills are not given fair treatment in this House. The general rule of our law is that the plaintiff must sue the defendant where the defendant resides or carries on business. That is a very sound view, but to that there is one exception, that where the whole of the cause of action arose in a different district he may sue in that district. It is a very exceptional case and very seldom happens. When it does arise, in nine cases out of ten the balance of convenience and of fairness is to allow the case to be taken in that court. Let me give an example. If a stranger visits Cape Town and assaults someone or drives over him in his car or does not pay his board and lodgings or something else that visitors sometimes do, it would be only fair to sue him in Cape Town. Why should the man have to go to Newcastle to sue the defendant? There is this great difference between the plaintiff and defendant. The plaintiff can please himself whether he sues or not. But a defendant has no choice, he must either defend or pay. The hon. member for Newcastle (Mr. Nel) said it was a hardship to follow the defendant into a far distant town and sue him only to find that the defendant had no money and the plaintiff had to pay his own costs. But if this Bill becomes law the defendant might have to go to a far distant town and if the plaintiff had no money, even if he won the case, he would have to pay the costs himself. That is the difference, the plaintiff can choose whether he sues or not. He can first satisfy whether or not the defendant can pay and if he is satisfied that he cannot pay he can choose whether to bring the case on or not. The defendant has no such choice. If he is sued he must defend or pay. Let me give an example. Take a man at Potchefstroom who is sued for 15s. when he knew the man in Cape Town had nothing. If he is wise he will pay the 15s. even if he does not owe it rather than go to Cape Town and fight and win the case. Such a victory would cost him about £20. In such a case the plaintiff has the choice in his own hands and the defendant has not. I oppose this clause; it will do no good. The hon. member for Newcastle has lost sight of the fundamental difference that the plaintiff is master of the situation and can sue not as he likes and that the defendant would be at the mercy of an unscrupulous plaintiff, because he has no choice. He must defend or pay.

I move—

In reply to the hon. member who has just spoken (Dr. H. Reitz) it is evident that the hon. member has not taken the trouble to read the evidence given before the Select Committee in 1925 which dealt with this Bill. The chief magistrate of Cape Town was called, Mr. Lloyd, and he strongly supported the amendment I now suggest. All the evidence was favourable to the amendment and the Minister of Justice, when I wrote to him, asking him to introduce the amendment, said that whilst the amendment appeared to be a good one he would leave it to a private member to introduce it. The amendment has been introduced by me at the request of the farmers in my constituency. I give one practical instance which shows the necessity of the amendment. Some time ago the Smithfield Cold Storage Company sent a number of agents into the Free State to sell shares. Misrepresentations were made by the agents and the farmers were induced to apply in writing for the purchase of the shares, but the application form was so worded that no contract was concluded until the acceptance of the application by the directors took place in Pietermaritzburg. The farmers found that they had been defrauded and took action in the Free State, but the Supreme Court held that they would have to go to Pietermaritzburg because the acceptance of the contract took place in Pietermaritzburg and the whole cause of action did not therefore arise in the Free State. The farmers have similar experiences where they sell produce in the towns. If the price happens to go down excuses are made that the produce is not up to the mark with the result that the farmer must sue the purchaser in the town. Under the amendment they will be entitled to sue at the place from which they sent the produce. There can be no hardship because under the Magistrates’ Court Act, in any case, application can be made to the magistrate to change the venue under Section 35 (section read). I submit that it would be quite a simple matter if there should be any hardship by the plaintiff exercizing his right if this law is amended, for the defendant to make application to change the venue. I cannot see where the hardship of the hon. member for North-East Rand (Dr. H. Reitz) is. If he had read the evidence given by Mr. Lloyd I am certain he would have been satisfied that the amendment put forward is a very good amendment. Mr. Lloyd says—

That is the position. My hon. friend (Dr. H. Reitz) lives in one of the big towns, and he would like to have the litigation in the big towns. Under my amendment there will be a levelling up in so far as the right to sue is concerned. Mr. Lloyd adds—

Mr. C. P. Robinson, the hon. member for Durban (Central) also gave evidence in the course of which he referred to a case between a Natal man and a Cape Town broker whom he had wired to purchase potatoes for him. The broker said that there was a balance of something like £40 due to him, and Mr. Robinson points out the great expense and inconvenience to which the plaintiff would be subjected in having to take his case into the courts of Natal. Mr. Robinson said he was satisfied that in this case there was no defence on the merits, and he also remarked—

Mr. Robinson also mentioned three other cases between people in Natal and people in the Cape, and in which he said he was satisfied that there was no real defence. Two of the cases were abandoned by the plaintiffs, rather than go to the expense of taking their witnesses to Natal. With regard to the other case Mr. Robinson stated that his firm took an exception that the whole cause of action had not arisen in Durban, and the exception was upheld, and he believed that in that case also the claimants abandoned their claim. I hope the House will accept this very small and reasonable amendment, which is supported by the Minister of Justice, and has been supported by this House, by twice passing the second reading, and by a Select Committee to whom it was referred. I regret that the hon. member for North-East Rand has seen fit to object. Although this is the third time this Bill has been before the House, never before has the hon. member raised any objection. It does seem strange that he should raise this objection now.

I have the greatest respect for Mr. Lloyd, and also for Mr. Robinson, but I do not agree with their opinions, and, after all, what their evidence amounts to is that there have been cases of very great hardship. I have admitted that, but I have said that there are cases of hardship to defendants as well. Take the cases of the farmers mentioned by the hon. member. The plaintiffs did not need to sue if they did not want to. If they found out that these people could not pay, they would be foolish to sue. The point the hon. member does not keep in view is the difference between a plaintiff and a defendant. The plaintiff can sue or not, as he likes, but the defendant has not got that right. The hon. member says that you can change the venue, but even asking for that change costs money.

For once I happen to be in complete accord with the hon. member for North-East Rand (Dr. H Reitz).

For once you are right.

No, this is the second time, and I hope it won’t be the last time, that he agrees with me. I would like farmers especially, and people up-country to realize what would happen if this Bill went through. We will take a dispute between a merchant in Cape Town and a farmer in Potchefstroom. The farmer in Potchefstroom could be hauled all the way down to Cape Town in order that he may be sued here. Surely it would be introducing tremendous confusion in this already vexed question of jurisdiction. I admit the hardships mentioned by the hon. member for Newcastle, but every instance of hardship he has mentioned tells with equal force in the case of the defendant. There are such things as fictitious defences, but there are such things as fictitious claims, too. Assuming this Bill goes through, suppose a Potchefstroom farmer issued by a plaintiff in Cape Town who gets judgment against him, and proceeds to execution, the whole machinery of the court has, anyhow, to be transferred back to the domicile of the defendant. It is simply multiplying expenses for nothing. We know already what difficulties the courts have in deciding questions of jurisdiction, and if this Bill goes through, those difficulties will be increased ten-fold. Even if the most minor portion of a contract has come into being in any district, the whole venue can be changed. It is the immemorial custom of our law that the forum of the defendant should be the venue of the court. Why go and alter that? Every case quoted by the hon. member for Newcastle (Mr. Nel) applies with equal force in the case of defendants, and I can see far more instances of injustice in connection with the defendants being dragged away to the forum of the plaintiff, than vice versa, I sincerely hope, therefore, that this Bill will not be carried. It is not such a small matter as the hon. member for Newcastle makes out. It is a very far-reaching alteration in our system of justice, and it seems to me that it should not have been left to a private member to introduce it.

I would like to bring to the notice of the House that the idea of this amendment is really to lessen the costs of litigation, and that this view was supported by the evidence given before the select committee. Mr. MacCallum told the select committee that he had known of cases which had not been proceeded with, rather than face the waste of money and time. He also mentioned other cases where plaintiffs, rather than go into some distant magistrate’s court, had sued in the Supreme Court and obtained judgment. It often happens that where there is a small case the plaintiff, rather than go to the district where the defendant resides, sues in the Supreme Court in his own town. Under this Bill the plaintiff would be entitled to sue in the magistrate’s court, where the claim was partly contracted. There is nothing in the law to-day to stop any of these people whom the hon. member has referred to from issuing a summons in the Supreme Court where the costs would be two to three times as much as in the magistrate’s court.

Then you only get magistrate’s court costs.

Yes, but in many cases you do get Supreme Court costs. At all events, cases of this kind are brought in the Supreme Court. The principle of this Bill existed in Natal before the Act of 1917 was passed, and it is a principle which has been adopted by the county courts in England, and has worked very satisfactorily there.

The hon. member for Newcastle (Mr. Nel) does not realize that this innovation will benefit only the large centres. Take Johannesburg. A large percentage of the mercantile transactions in the Transvaal are done in Johannesburg. It would be a godsend to the attorneys of Johannesburg to be able to issue all their summonses in Johannesburg, but it would bear very hardly on the people in the country districts. A man in the country, a farmer especially, would never know when he was going to be hauled off to Pretoria or Johannesburg on some two penny-ha’penny account. Take my own case. I am practising in Johannesburg. It would be very pleasant for me to know that I could issue these summonses in Johannesburg, but it would be decidedly inconvenient and unfortunate for people living in the country. This Bill, as framed, will certainly benefit the large merchants, and if I were to express my personal opinion it will help attorneys like myself in large centres very materially, but it would be extremely hard on the public in the country. A man’s home is his castle, and he ought to know that if he is to be attacked he will be attacked in his own home, and not dragged off without warning to some other centre. I am surprised the House has taken so little interest in so important a matter, because it is a matter of considerable moment, more especially to the small man in the country districts.

Amendment put.

I take it it is quite clear that even if the House allows the words to go in we would still be entitled to vote against the clause.

Yes.

Amendment agreed to.

Clause, as amended, put and a division was called.

As fewer than ten members (viz., Mr. Anderson, Brig.-Gen. Arnott, Messrs. Henderson, Marwick, Nel and Sir Thomas Watt) voted in favour of the clause, as amended, the Chairman declared the clause negatived.

Clause 2 and the title put and agreed to.

I move—

Agreed to.

House Resumed:

I move—

The object of this little Bill is to enable a woman in certain circumstances to sue her husband in the Union despite the fact that he is not domiciled in the Union. In this matter of divorce a woman is still at a serious disadvantage as against a man, because a man can go to any part of the world and acquire domicile there, and if he likes sue his wife for divorce, but a woman is, according to international law, domiciled where her husband is domiciled and can only sue him where he is domiciled. Take the case of a man who deserts his wife and goes to another country. If she wants to sue him for divorce she has to follow him to that foreign country. If he goes to still another country she has to follow him there also. If her funds are sufficient— though they are not usually—and she ultimately finds him, say, in Australia, she will find there that desertion is not a sufficient ground for divorce and she will be disappointed again. It is a great hardship for a woman like that. Think then of this woman following this elusive husband of hers all over the world, and hon. members will admit that it is time we assisted a woman in a case like that. It may be said that this is a hypothetical case and not likely to happen, but—it has happened—in 1924 a case of this nature was brought before the Transvaal Supreme Court. From the reports, on page 711, hon. members will see how a South African girl went to Holland and got married there in 1912. While they were living in England her husband deserted her and went to Canada and then to New York and then she lost trace of him. She is neither a wife nor a widow. She cannot sue him in our court because her husband is not domiciled here, and she cannot sue him in any other court in the world because she does not know where he is. For anything she knows he may be dead. For ten years she has been looking for him. It is a very hard case. The court of the Transvaal was unable to help that unfortunate lady. If one case like that can happen, any number of such cases can happen. It is our duty to amend the law so that a woman like that can get redress. Members of the legal profession may hold up their hands in horror, and say we must not tinker with international law. They will say that if this Bill becomes law and a woman is divorced and then goes outside the Union and gets married again she will be in the peculiar position that in the Union her second marriage is valid but outside the Union the second marriage is invalid and she can be prosecuted for bigamy. Now, first of all, there seems to be considerable doubt about this point. So eminent an authority on international law as the late Professor Dicey says this. I am quoting from Dicey’s “ Conflict of Laws,” 2nd edition, page 805. He says—

He also says—

Supposing that Professor Dicey is wrong and that the second marriage is invalid outside the Union, what could happen, what is the worst that could happen and is likely to happen? Suppose she got a divorce or got married again outside the Union who would trouble to prosecute her for bigamy? Who would prove she had committed bigamy? He would have to find that deserted husband of hers, or at all events he would have to prove he was not dead. Supposing she was prosecuted and convicted, would any court in the world inflict any serious penalty in these circumstances? All that a woman in those circumstances would have to fear is that some learned authorities in international law in this House and elsewhere might possibly hold that her second marriage was invalid. That would not worry a woman one little bit who wanted to get married a second time. All she would consider is whether the laws in the country where she lives consider her marriage is valid. I submit I have made out a clear case for this little Bill to do justice to women. I noticed in the “ Rand Daily Mail ” that a Johannesburg lady advocate, Miss Bertha Solomon, in an excellent article on this Bill, suggested that the Bill should be so amended that the plaintiff must have resided in the Union for at least three years before she can bring her action, and in Committee I propose to amend accordingly, the object of the amendment is to prevent strangers from making a convenience of our courts thinking to get an easy divorce. This Bill in no way makes divorce easy, and does not add any new grounds for divorce. There are only two grounds for divorce in our law, and they remain only two. The Bill only enables a woman to bring her case before the courts which she is not able to do now. It does not affect the merits of the case at all. For the benefit of hon. members who dislike doing anything in this country before it has been done at home —in England—I may say that in England in 1919, because of so many disastrous war marriages, Parliament passed a law allowing a woman married in England to sue her husband in England, irrespective of where he was domiciled. So already people in England have been tinkering with international law and there is, therefore, no reason why we should not tinker a little further. This Bill, it is true, does go one step further.

I hope this House will not carry the second reading of this Bill. Hon. members know I have not obstructed a single Bill yet, and I will deal with the Bill on its merits. I hope other hon. members will do the same thing. I think this Bill will be a prolific source of fraudulent actions. In the first place I do not see why a married woman should have a privilege; and logically it should apply to a married man. It is a difficult thing sometimes to say whether—

is genuine or not. How can it be when a married woman seeks to ask for the restoration of conjugal rights and she is, say, a South American? The direct answer to a claim, if it is genuine, is—

I think that is going to be one of the most prolific sources of collusion or improper use of the law that will arise. Take the second case, where the man says —

how is the court here to decide whether the offer is genuine or not? I regard the Bill as objectionable in that it draws a distinction between a man and a woman, and it will lead to a large number of fraudulent actions. We have enough already, and the hands of the court are tied in cases of restoration of conjugal rights—cases which are absolutely not genuine. By this Bill, I believe, we are going to facilitate this kind of thing. The hon. introducer of the Bill, like a good many other people in this House, goes to England for his precedents, but the Bill he referred to in England does not go anything like as far as this. It is founded on the basis that the marriage took place there. I, for one, will vote entirely against the Bill.

I should like to support this Bill. The hon. member for Rondebosch (Mr. Close) has stated that he does not draw a distinction between a man and a woman, but a distinction is drawn by the present law, which is most unfair to the woman in this respect—as unfair as you can possibly conceive, and that is because it is a man-made law. The law at present is that when you are a man, whether you are the defendant or the plaintiff, domicile is where you permanently reside; but if you are a woman, domicile is that of your husband. My hon. friend who introduced this Bill is trying to do away with this distinction. In the course of 27 years’ practice, numerous cases have come to my knowledge to show the gross unfairness of the present law. For instance, a man deserts his wife and children and goes to Australia, or some other part of the world. His wife cannot get him to support her unless she goes over with her children to Australia, and she cannot sue in this country. She may have been married here and lived here for fifteen years. The strange thing is this, that the matter is so much in the man’s hands that all he has to do is to write to the court and say he does not intend to come back to South Africa, and that he intends permanently to reside where he is; and that puts the poor woman out of court. How anybody can say that is a fair position I cannot conceive. It is most unfair. This Bill proposes to give the woman an opportunity of bringing her case. It is surrounded with all sorts of safeguards, and the mover has told us of an amendment that the woman must have been living here for three years before she brings her action, and she must be domiciled here prior to the marriage, or the desertion or adultery must have taken place in the Union at a time when the defendant was domiciled here. The hon. member for Rondebosch asked how a person can bona fide intend to reside here and still bring her action. I say a woman may have been deserted ten years ago and intends to remain in Cape Town, but her husband may as a result of the action change his mind, and say he is willing to support her again, and then she may change her mind and go to him where he is domiciled. I suppose a woman is entitled to change her mind as well as a man. How can there be collusion when a man deserts his wife and children? I submit that the English precedents are most valuable. The present law of matrimonial domicile has no effect except as regards property. In cases of divorce the law of the country where the husband is domiciled at the time the action is brought determines the issue. If a deserted wife and her children are here and the husband is in Australia, the Australian courts will decide the matter, but the object of the Bill is the empowering of the South African courts to exercise jurisdiction. I consider the precedent quoted by the hon. member (Dr. H. Reitz) is a valuable one as showing that the change can be made. Hon. members should remember that women have no votes in South Africa, and it is upon questions like these where the rights and interests of women are concerned that we should see that every justice is done to them and that women are put on the same basis in regard to rights as men are. Unless the Bill is passed women will continue to be placed in a position of very serious disability as compared with men.

I regret that we cannot refer to previous speeches made by hon. members during the session, for it would be interesting to compare the attitude of the hon. member (Dr. H. Reitz) on this Bill with his attitude on the preceding measure in regard to the rights of defendants. I would ask him has the defendant no rights? The hon. member’s argument on the previous Bill would furnish very strong arguments against this measure. As to the arguments of the hon. member for Hanover Street (Mr. Alexander), I know of no court which would decide that a man is domiciled in Australia simply because he has left South Africa to go to that country. Our law regarding domicile is very clear. We have on record the case of a man who went to Japan and remained there for nearly 30 years, but because there was no proof that he had meant to change his domicile, the court held that his original domicile remained his domicile. In a case in our own courts a rich man sold his possessions in this country, bought a house in England, and lived there for several years, but, notwithstanding this, it was held that there was nothing to show that he intended to change his domicile. There is nothing to prevent a woman sueing, by edictal citation, her husband who has gone to Australia from South Africa.

I referred to a case in which it was assumed that the man in Australia wrote to the court here stating that he did not intend to return.

The desertion must have taken place in the Union.

That is the Bill.

The hon. member who introduced the Bill asked for privileges for the woman when she sues for divorce on the grounds of either desertion or adultery, but there are other causes for divorce. If the hon. member wants the Bill to be applicable to all cases he should use general terms, for there are more than two grounds for divorce.

I never heard of them.

Apparently, there are many things about which the hon. member has not heard. What about a man who is imprisoned for life? A case was decided in our courts some years ago that if a man receives a life sentence his wife can obtain a divorce. There are also other grounds which the hon. member might investigate. Under the Bill now before us, it is proposed to give a privilege to women which is not extended to men, and the latter would be put in a very awkward position. It has been decided in England—I think it was the Russell case—that under certain circumstances divorces obtained in America by British subjects married in England do not hold good in England. Hence, assuming that this Bill were carried and a woman obtained a divorce here, although she might re-marry, her husband, who might be living in England and be domiciled there, would not be permitted to re-marry. This is a measure which should not be introduced by a private member, but by the Minister of Justice after very careful consideration. A private member should not rush into legislation simply because there have been one or two hard cases. I can foresee all sorts of complicated questions arising if the Bill is carried.

It is not always that I agree with the hon. member for North-East Rand (Dr. H. Reitz), but I shall support this Bill. I do not want to go into details, but, in my opinion, we should give the same right to the wife that the husband has to-day. Why should not the wife have it? The husband may leave South Africa, and leave his wife and family helpless, but the present position makes it difficult for her to get a divorce. I do not see why she should not have the right of divorce. I hope the House will support the Bill, because I think an injustice is to-day being done to the wife.

The objection I have to vote for this Bill is that the hon. member does not seem to have consulted the judges on this matter. It is the invariable custom of the Government, when introducing a Bill of this importance, on a matter which is dealt with by judges every day of the week, to consult the judges before seeking to make a drastic change in the law. This has not been done, and I agree with the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) in saying that this, which is a very important innovation, ought to come from the Government, after mature consideration and consultation with the judges who administer the law. This Bill, as it stands, is totally unworkable, because it gives a woman the right to apply for the restoration of conjugal rights, or divorce, if she has, prior to her marriage, resided in South Africa, and there is nothing to say that the marriage need have taken place in South Africa. Supposing she lived in South Africa prior to her marriage, and goes to England to get married and then conies back to South Africa to take up her domicile. She is entitled to apply for divorce, although the marriage did not take place in South Africa. There is nothing in the Bill to apply to marriages which have taken place in South Africa only. All that seems to be necessary, according to the Bill, is “ provided such married woman was at any time prior to her marriage, domiciled in any part of the Union. ” She may have been here for a year, or she may have been born in South Africa, and that gives her the right to apply for divorce irrespective of whether the marriage took place in England, Australia or Japan. Suppose she was not resident in the Union prior to her marriage, she could still take proceedings for divorce if the desertion or malicious adultery took place in the Union. There is nothing to show that it is necessary the husband should have been domiciled in South Africa. Surely this House will not pass an Act which will entitle a wife to come to South Africa and seek to set aside her marriage which took place in England, where her husband is living. The husband may never have seen South Africa, yet, under this Bill, the wife is enabled to divorce her husband. This Bill ought to have been submitted to the law officers of the Crown and the judges, and should have had more consideration than this from the hon. member who introduced it. There are some very important omissions. There is also the objection that it only applies to the woman. Why not put the man in the same position as the woman? This is an objection which the hon. member who introduced the Bill anticipated, that if we legislate in this direction a woman might get divorce here and may then go to the country where her husband is living, and find the divorce is not recognized there, because, according to international law, proceedings should have been taken in the country where the husband is domiciled. She then finds herself legally the wife of the husband she thought she had divorced. The hon. member for Cape Town (Hanover Street) (Mr. Alexander) takes the same view that international law requires divorce proceedings to be taken at the domicile of the husband. I hope the House will reject this Bill and give the hon. member, if he feels strongly on the subject, an opportunity of going into the matter with the Minister of Justice, who will be able to consult the judges. The hon. member himself is not in a position to ask the judges for their opinion, but the Minister of Justice is. There is another good reason why we should not proceed with the Bill, and that is that the Minister of Justice, who is responsible for these things, is not in his place, and cannot give the House a lead. If the hon. member persists in going on with the Bill he should consult with the Minister of Justice, and let the Bill stand over until he can give an opinion on the matter. As far as I am concerned, I shall vote against it.

A man can sue in South Africa if he wishes, but it is only the woman who is barred from suing. I cannot picture one single instance where a man would suffer hardship. With regard to the Minister of Justice, I got his consent. I do not say that he agrees with the Bill, but I have his consent. It never occurred to me that I as a private member would be allowed to consult the judges, but if the House allows the second reading to go through, I will try to get the Minister to consult the judges, before the Committee stage is reached.

Motion put and the House divided:

Ayes—52.

Ballantine, R.

Barlow, A. G.

Bates. F. T.

Boshoff, L. J.

Boydell, T.

Brink, G. F.

Brits, G. P.

Christie, J.

Cilliers, A. A.

Conradie, D. G.

Conradie, J. H.

Conroy, E. A.

De Villiers, P. C.

De Villiers, W. B.

De Waal, J. H. H.

De Wet, S. D.

Du Toit, F. J.

Fick, M. L.

Gilson, L. D.

Harris, D.

Hattingh, B. R.

Hay, G. A.

Heyns, J. D.

Hugo, D.

Kentridge, M.

Keyter, J. G.

Malan, C. W.

Malan, D. F.

Malan, M. L.

Moll, H. H.

Munnik, J. H.

Nicholls, G. H.

Oost, H.

Payn, A. O. B.

Pienaar, J. J.

Pretorius, J. S. F.

Reitz, H.

Reyburn, G.

Rood, W. H.

Roux, J. W. J. W.

Sephton, C. A. A.

Snow, W. J.

Steytler, L. J.

Strachan, T. G.

Terreblanche, P. J.

Van Broekhuizen, H. D.

Van der Merwe, N. J.

Van Heerden. I. P.

Van Rensburg, J. J.

Wessels. J. B.

Tellers: Alexander, M.; Vermooten, O. S.

Noes—18.

Buirski, E.

Close, R. W.

Geldenhuys, L.

Grobler, H. S.

Henderson, J.

Jagger, J. W.

Lennox, F. J.

Macintosh, W.

Marwick, J. S.

Nathan, E.

Nieuwenhuize, J.

Smartt, T. W.

Papenfus, H. B.

Van Zyl, G. B.

Rider, W. W.

Watt, T.

Tellers: De Jager, A. L.; Nel, O. R.

Motion accordingly agreed to.

Bill read a second time; House to go into Committee on the Bill on 8th April.

I move—

Mr. CLOSE seconded.

Agreed to.

New clause, as amended, put and agreed to.

Omission of Clause 4, substitution of new Clause 4, amendments in Clauses 5 and 8, omission of the schedules and amendment in the preamble, put and agreed to and the Bill, as amended, adopted and read a third time.

I rose just now, Mr. Chairman, for the purpose of moving an amendment to Clause 1.

Hon. members, when I put a clause, must rise and say what they have to say before it is passed.

I was on my feet.

I never saw the hon. member. It is only with the leave of the committee that I can go back and put this clause again. Is there any objection? As there is no objection, I will put the clause again.

On Clause 1,

I move—

This amendment speaks for itself, namely, that whipping can only be inflicted on a second conviction. I made most of the points that I wanted to make on the second reading of the Bill, but I do feel that where you inflict a whipping it should only be done, except in cases of very drastic cruelty, after a man has had a warning, after he has been convicted once. I am not opposing the spirit of the Bill, but I hope that the mover (Maj. G. B. van Zyl) will accept the amendment, because I think it is one that will commend itself to most of the members of this House.

I hope the House won’t accept the amendment, because in the ordinary course a whipping would not be inflicted unless the case were of such a frightfully gross character that there was no alternative. I do not think the hon. member need be afraid that our magisterial bench will exercise its powers in an unreasonable way.

I have every respect for the bench of this country and every respect for the magistrates of this country, but I would like to remind hon. members that magistrates are not infallible. One need only recall the table of sentences passed by magistrates in England which was formerly published by “ Truth.” There you got the most appalling divergences of opinion in the case of many magistrates, and it is just to do away with the possibility of this divergence of opinion occurring here that I am moving this amendment. There is another case where it may press very hardly. I allude to the platteland. A man may order his servant to saddle a horse. That native boy is not going to disobey his master’s orders and say—

The boy goes to the nearest town, the sore has developed in the meantime, and the boy is brought before the magistrate and punished. I would like to tell the House that you have got native constables who make it their business when a boy rides up to a court house to tell him to take the saddle off the horse. The boy takes the saddle off, and there is a sore on the animal’s back. That boy is at once hauled into court and fined. You may get a case where a magistrate may say that he is going to inflict a few strokes.

You know that is quite impossible.

I don’t know that it is impossible.

You know the Supreme Court has to review the sentence.

My hon. friend is utterly obsessed with the impossibility of the bench of the Supreme Court doing anything that can possibly be wrong or can possibly be not considered a common-sense judgment. As a layman, I can only say that I do not see eye to eye with him. I am not attacking the principle of this Bill, but I am moving what I think is a reasonable amendment, and one that will commend itself to fair-minded people.

I do not know that I find myself in agreement with the amendment of the hon. member for Griqualand (Mr. Gilson), for this reason—that a second offence may be an offence of a very mild nature; the first offence may also be of a mild nature, and yet, under these circumstances, a man may be whipped. I want to move an amendment which, perhaps, may meet the difficulty of my hon. friend, and one which, I hope, the mover will accept. It is to bring this proposed law into line with our existing theory of punishment. It is to this effect—

Section 89 (3) of the Magistrates’ Courts Act, 1917, says—

The whole theory of the law is that whipping shall only be imposed in cases of an aggravated nature, or in these other cases of robbery, etc. Under my amendment certain acts of cruelty would not be subject to the penalty of a whipping, but only where the elements of aggravation are proved in a particular case could a magistrate impose the penalty of whipping. I think there is a great deal to be said for the opposition a number of members on this side have put up against the proposal of the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl). There are undoubtedly in the outside districts, circumstances which do not exist in the towns, where men have to over-drive and over-ride animals, and while these men do not intend to be cruel, yet they find themselves liable to the penalties of the existing law. But I submit that the proposal I suggest would meet their objections, because, under this amendment, nobody can be sentenced to a whipping unless there are the elements of aggravation—unless it is an extremely cruel case. My hon. friend suggests putting “ wilful ” before “ aggravated.” I think that would improve it. Under these circumstances, I think hon. members on this side could agree to the amendment.

I consider the clause dangerous. The hon. member for Pretoria (Central) (Mr. te Water), who voted for it earlier to-day, sees the danger. Otherwise he would not propose an amendment. To whom does the provision apply? In so far as it affects white people, it touches mostly the population of the countryside who have to do with animals all day long, and come to the villages with them. It affects the townspeople with their motor-cars least of all. Do you ever hear of this class being dragged before the magistrate for cruelty to animals? If a motor runs down, just for the fun, the hare which, at night, runs along in front, would the driver be prosecuted? Or if the motor breaks off a fowl’s wing and the driver laughs about it, would you prosecute him? Never. Some time ago I met a gentleman with a long coat and a white tie at Kommetje who was shooting at every little bird within his reach. One of them was a duiker which had got washed up wounded on the beach. This was for sport. Was that gentleman arrested? No policeman arrests such a little gentleman. Many hunters also make themselves guilty of cruelty. When they have broken a bird’s leg they boast about it, and no one dreams of taking them before the magistrate. But if a poor farmer comes to the town or village with a horse or mule having a chafed breast or an injured knee then he is arrested. I hate cruelty myself and, therefore, I am not in favour for the repeal of the existing Act, which makes adequate provision. I should not like a magistrate to have the right of condemning a respectable South African to a flogging, because, in his view, the farmer has been guilty of cruelty.

Only cruelty of a very gross kind.

What is a bad grade simply depends on the view of the listener. Most magistrates are reasonable men, but there are also unreasonable ones, in whose hands we ought not to put too much power.

My intention right through has been that no man should suffer the punishment of a whipping unless his crime is wilful or aggravated. We do not desire to punish with a whipping in a case of the ordinary everyday kind of cruelty. I thought I had made it perfectly clear that no court would confirm the sentence of a magistrate of a whipping unless the crime was of an aggravated nature. The Supreme Court by decisions has laid down rules, and the magistrates are guided by these. If they find their sentences continually overruled by the Supreme Court they know that the Department of Justice is going to keep an eye on them, and the magistrates naturally endeavour to avoid having their sentences upset. The difficulty we experience is that magistrates have been far too lenient in cases of cruelty to animals, and not too severe. Cases in which a sentence of whipping is imposed go up for review to the Supreme Court. My idea coincides with the hon. member’s, and I very gladly accept his amendment.

I am sorry that I cannot support the Bill nor even the amendment of the hon. member for Griqualand (Mr. Gilson). In my opinion the existing Act is severe enough, but the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) wants a law to be made for each exceptional case. Everybody certainly disapproves of the extraordinary cases of cruelty to animals which recently took place, but, because they did take place, the hon. member now suddenly wants to have a Bill passed to meet the exceptional cases. They do not often occur, and the alteration of the existing law to provide for those cases will make the position dangerous to others. According to the amendment of the hon. member for Griqualand, the magistrate can only inflict lashes on the second conviction, but the second offence may have been done innocently without malice or without being aware of the cruelty. Now the hon. member for Cape Town (Harbour) wishes to make out that the public are as safe as possible, because the sentences are reviewed by a judge. I do not know whether hon. members are aware what usually happens on revision, but a judge will only exceptionally, and for very sound reasons, alter the punishment which has been inflicted by a magistrate. The judge may, on appeal, when strong arguments are adduced, dismiss the whole case or make an alteration, but I challenge the hon. member to prove that 5 per cent. of the sentences are, in the ordinary course of review, thrown out by the judge. I want to ask whether the hon. member knows that judges have, over and over again, said that they must allow the sentence imposed by the magistrate to stand, because the magistrates have had the witnesses personally before them, and were in a much better position to judge on the facts than the judge, who only has the written evidence before him. That is the attitude taken up by judges on review, and, therefore, it will be dangerous if the Bill is accepted. I hope that the House will not only have sympathy for the animals, although we all deprecate cruelty to animals, but will also think that our people ought not to be exposed to the cruel consequences of the Bill.

I am certainly surprised at the hon. member for Krugersdorp (the Rev. Mr. Hattingh). I should have thought that the hon. member in his early days had been expounding an entirely different doctrine from that which he has been expounding this afternoon, and that the House, if it had to look for guidance from anybody, should have looked to the hon. member, considering the position he adorned before he came to this House. He has said that this Bill has been introduced by my hon. friend to meet a couple of cases of disgusting cruelty to animals within the last few months.

Exceptional cases.

That is not the reason for the introduction of this Bill. Many hon. members know that for many years many cases of disgusting cruelty to dumb animals have taken place in this country, and that there is nothing that will appeal to certain classes when they have control of animals, except to suffer a little of the pain they have unrighteously inflicted on these dumb creatures. It is for the purpose of bringing these people to book that the S.P.C.A., my hon. friend and others, are desirous that some punishment should be devised that will be a deterrent, not to the ordinary person who rides a horse with a sore back, but to those persons who inflict the most wanton and inhuman cruelty it is possible to imagine. I hope the hon. member for Griqualand (Mr. Gilson) will withdraw his amendment. I should have thought that the hon. member for Pretoria (Central) (Mr. te Water), being a member of the legal profession, would be the last to consider that any judge would sanction the administration of a whipping unless the judge was convinced that the offence was of a most brutal character. The hon. member for Krugersdorp (the Rev. Mr. Hattingh) is trying to secure a certain amount of support. I am informed that whipping does not mean the application of the cat-o’-nine-tails, which can not legally be used in this country. I hope the hon. member, when he allows his more Christian principles to prevail, will realize that his fear is groundless. Whipping, I understand, is given with a cane, and I have seen many cases of cruelty of such a revolting character, well deserving the application of the cane to the persons of the culprits. There is, unfortunately, a certain section of people with such low feelings that they inflict the most fearful cruelties on animals. I hope that no further amendments will be introduced, but that the Bill will be accepted.

As I said on a former occasion, we opponents of the Bill are just as much, if not more, concerned about cruelty to animals than hon. members who support the Bill. It can, however, so easily happen that it is necessary to handle an animal cruelly to a certain extent, and a person doing so would then, without his own fault, become liable to corporal punishment. The hon. member for Pretoria (Central) (Mr. te Water) has already proposed that the cat-o’-nine-tails should only be used in extreme cases. I move, as an amendment to the previous amendment—

I am on principle opposed to corporal punishment, because there is something degrading about it, even if it takes the form of a whipping, but we have to take humanity as we find it. The object of punishment is two-fold—to serve as a corrective and a deterrent. To some, unfortunately, corporal punishment is the only corrective, and in the case of others it only will serve as a deterrent. The hon. member opposite said his opposition was based on experience. Well, without appearing egotistic, I claim to have considerable experience in this matter, as for many years I have been a member, and for the last 14 years I have been, and am still, chairman of the Johannesburg branch of the S.P.C.A. The secretary of that branch has sent me a large number of relevant cases which have been brought by the society, and I will refer to only one or two of them, and I would ask any impartial man whether in such cases the only fitting punishment is not the infliction of corporal punishment, so that individuals who are so devoid of any humane or decent feelings as to be guilty of these outrageous cruelties should feel some of the pain they inflict on dumb animals. In one case two men, two inhuman fiends, were charged with tying a horse to a post and lashing it until it died. One of the offenders was sentenced to three months’ imprisonment without the option of a fine. Another individual was charged with deliberately smashing a cow’s horn—a most refined form of cruelty. In a third case an offender was found guilty of slashing a dog with the teeth of a saw, and with afterwards beating the poor creature to death with a hammer. There is only one way to deal with offenders of this description; that is, if not to lash, at least to whip them. There is no fear that there will be abuse of this I concur, by way of additional caution, in the amendment of the hon. member for Pretoria (Central) (Mr. te Water) and the addition thereto by the hon. member for Gordonia (Mr. J. H. Conradie). There is no doubt that the stage of civilization which any nation has reached can be gauged by its treatment of dumb animals. Let us put right this defect in our law, and show that we have sternly set our faces against wilful and wanton cruelty. This is the only way of dealing with individuals of this sort, either as a corrective or by way of punishment.

When the Bill was introduced there were a number of criticisms on the possible dangers which the Bill would involve. The case put up for the Bill was to allow magistrates to deal adequately with cases of gross cruelty. I am very glad, if there is a doubt, that the hon. member for Pretoria (Central) (Mr. te Water) has introduced the amendment he has this afternoon, and that the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) has accepted the amendment, as well as the amendment of the hon. member for Gordonia (Mr. Conradie). The House is asked to decide whether it is a right penalty to apply the lash in the case of wilful and aggravated cruelty to animals. That is the simple test. Any further opposition will put the opponents in a false position, because they will be going far to justifying cruelty to animals. I cannot conceive that there is a single man in the House who would say that a brute who is guilty of wilful and aggravated cruelty to animals should not suffer a taste of the pain he causes. Might I appeal to the hon. member for Griqualand East (Mr. Gilson) to withdraw his amendment, because the reasons for which he introduced his amendment are now entirely altered. Knowing that the hon. member is in agreement with the sound and sensible treatment of people guilty of inhuman treatment to animals, I hope he will now withdraw his amendment, and facilitate the passing of the Bill.

We who are opponents of the Bill are also against cruelty, but the streets of Cape Town, e.g., are not meant for horses, but for motor-cars. A poor man cannot drive along the slippery streets with a cart and horse, and that is the cause of the cruelty to animals. The municipalities who only consider the owners of motors are the offenders against the animals. There are hon. members who own motor-cars and think that everything must give way to the motors, and that animals should be taken off the road. That is why they take up this attitude. They are not so much concerned about cruelty, but want the animals to entirely disappear from the streets. The poor people also have rights however. I am opposed to cruelty, and when it actually takes place it must be punished but when hon. members there propose it as if they were so concerned about cruelty to animals, then their intentions are not honest.

I ask if it is right for the hon. member to say that we are dishonourable, and that we do not mean what we state in this House?

I don’t think the hon. member said you were dishonourable. The hon. member had better proceed.

The motor-owners do not even want people on the road. One is almost afraid, in Cape Town, to cross the street, motor-cars are continually startling you. Let us include a provision that if anyone overruns another by a motor, he shall receive a whipping.

He should be hanged.

He is not hanged. Very often the person does not die. The rich motor owner pays compensation, and that concludes the matter, but if we were to propose to subject him to the cat, I should like to see how hon. members would vote.

The amendment proposed by the hon. member for Pretoria Central (Mr. te Water) will to a large extent meet the difficulty I was labouring under. At any rate, you are not putting a human being on a lower grade than you are putting the animal, and I think it will safeguard the undue application of whipping in many cases. When I superimpose on those reasons the dulcet tones in which the request of the hon. member for Rondebosch (Mr. Close) was couched, I feel I do not want to proceed with the amendment standing in my name, and with the consent of the committee I will withdraw it. With leave of committee, amendment proposed by Mr. Gilson withdrawn.

It is noticeable how all the farmers are against the Bill and the amendment. I do not take it amiss in the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) for introducing the Bill, judging by what he has seen in the Cape Town streets, but if he knew conditions on the countryside, he would never have introduced the Bill.

Why are you afraid of the Bill?

I am not surprised at the attitude of the hon. member, because he always pulls in the wrong team. We, as farmers, do not want to ill-treat the animals that help us to make our living, and we have sympathy with them, but a farmer is often compelled to treat his animals in a way which some would consider cruel, but he has no other alternative. Such a farmer then could be given corporal punishment under the Bill. I do not know whether the hon. member for Fort Beaufort (Sir Thomas Smartt) has a son, but I am convinced that he would not like to see his son receiving corporal punishment for riding a horse to the village which became lame along the road, and a constable on his arrival considered that cruelty to animals had taken place. I hope the Bill will not be passed, and I, as a farmer, will vote against it.

I only wish to draw attention to the fact that it is quite apparent the world over the deterrent of whipping, of imposing lashes, has been exceedingly effective. Under that punishment, or the fear of such punishment, the crime of garrotting disappeared, and more recently the white slave traffic, which was one of the most disgraceful things in the world, almost disappeared. Why? Because the wretched individuals who were making a living out of that inhuman traffic were afraid of only one thing, and that was of being whipped. There is no fear whatever of miscarriage of justice here in this regard, and I am surprised indeed that it needs any argument whatever to secure the easy passage of such a Bill as this. In the course of a long and somewhat misspent life—misspent at all events to some considerable extent in time wasted in attendances at those human menageries termed parliaments—I have noticed one tiling that shows the footsteps of progress, and that is the growing kindliness right through the world towards children and animals. That is the rising mark of better conditions, of superior intelligence shall I say, showing a greater amount of civilization. I cannot understand anybody defending or palliating in any way cruelty to animals, and there is no doubt whatever that where pain is inflicted the individual responsible for it should be brought under some sense of the suffering he has inflicted upon others. I cannot believe that there can be any reasonable man in this age to whom the punishment could ever apply, standing by the side of those who would willingly continue what we have seen in so many parts of the country; and if it were once broadly known that cruelty to animals could be punished with caning, we would find that knowledge by itself would prove a deterrent. When it is said that the master should be punished as well as the man, while we agree with that, we know also that no master will willingly send out his servant to incur that possible punishment. Take it altogether, with the amendment proposed, this is a most reasonable Bill, and I should be very sorry indeed in the years to come, when anybody looks at the voting in the division that may take place on this question, if they saw there the names in opposition of those whom we are proud to call fellow South Africans.

Hon. members opposite wish to represent themselves as the special friends of animals, and that is not the case with us, but we use animals, while they do not. We are actually the friends of animals, and know from experience how to treat them. There are also farmers opposite, but they are cheque book farmers who do not themselves use animals.

Nonsense.

Was not the hon. member who interjected first an attorney?

Were you not first of all a schoolmaster?

No, I never was a schoolmaster. An ox sometimes jibs, but a farmer is compelled to go on with his work.

Do not beat the ox.

If the farmer thrashes the jibbing ox and is brought before the magistrate, he will be liable to corporal punishment. The hon. member for Witwatersberg (Lt.-Col. N. J. Pretorius) will also easily get into danger through the Bill. I think the existing law is severe enough, because the magistrate can impose three months’ imprisonment. I am myself in favour of punishing cruelty to animals, but we do not know how this provision about corporal punishment will be applied. An innocent farmer may also be given it, and therefore we regard the Bill as against their interests.

Do you stand for cruelty to animals?

It is such a pity that some hon. members opposite cannot understand what we say. They live in a bilingual country and are sent as representatives to a bilingual House, but they understand nothing of what we say. I do not wish to reproach them, but I have just said that we were in favour of punishing cruelty to animals, and that the maximum penalty must be inflicted if the cruelty is wilful. If the Bill is passed, however, some hon. members who are shouting so loudly in its favour will live to regret it. Their sons will possibly not be cheque book farmers like their fathers, and will have to use animals on the land, and then perhaps they will still come under the discipline of the Bill. I think hon. members opposite are also becoming convinced that the Bill is not right, and that its acceptance would be against the public interests.

I want to assure hon. members opposite that we have possibly greater love for animals than they have. *

Why should you excuse yourselves so much?

Hon. members opposite are trying to create the impression that we favour cruelty to animals, but the proof that that is not so is that many of us went through the second war of independence on one horse, and rode that horse afterwards for possibly 13 years more. Our horses during the war often had sore backs, and we were sorry to mount them, but could do nothing else. If one of the magistrates who will now have to decide under this Bill had then had one of us before him, he possibly would have inflicted corporal punishment. To come and speak like the hon. member for Witwatersberg (Lt.-Col. N. J. Pretorius), makes me doubt whether he ever used oxen. When oxen have been grazing for six months during the winter and they are inspanned again, then after a short while they have sore shoulders and blood even runs, but the farmer cannot on that account outspan the oxen. Every farmer does not have three teams of oxen to spare, as the hon. member for Witwatersberg possibly has. A farmer has often only one team to work with, and if a raw constable gets to hear of it, or if the farmer is brought before an inexperienced magistrate, then he can expect nothing else but a good thrashing. That is what we are afraid of. What surprises me is that hon. members who possibly own no other animal than a lap dog or a cat now want to dictate to us. Nor can I understand why there is such terrible persecution of cats in Cape Town that cases have to be mentioned of cats that were burnt or had their backs kicked in. With us on the countryside you do not hear that anyone wreaks his vengeance against a person on his cat, or is it that the conduct of the cats on the countryside is so much better than that of those in Cape Town? Many of the magistrates know absolutely nothing of farming conditions, and we are not prepared to leave the matter to their judgment. The hon. member for Witwatersberg spoke about jibbing oxen, but I wonder whether he has ever noticed that when an ox has walked alongside of chains, he gets much cut up and has just as many wounds as when he is flogged.

I am also a farmer, and have much experience of animals, and I must say that I cannot see why hon. members opposite are worrying themselves so much, nor why the Bill has been introduced. According to my experience, the existing Act is quite adequate, and I have never yet seen it being applied to the uttermost in cruelty to animals cases. Now the hon. members come and want to inflict corporal punishment for cruelty to animals, and these are the members who do not use animals and do not understand the circumstances who plead most strongly in favour of it. A farmer sometimes goes out in very dry weather and encounters heavy rains on the road, and his wagon sticks. He then has to use his whip, and possibly at every blow with the wet whip he wounds the animal a little, possibly causing blood. If a policeman happens to see it, the man is punished, and under this Bill would also be able to be punished with the cat. Only this morning I read in the paper of a case where a man was fined £3 15s. because he smashed a donkey’s ear. Blood came from the ear, and the man was fined. The existing Act is severe enough, and it is unnecessary to come with all these silly Bills. The animals are sufficiently protected.

the hon. member for Cape Town (Harbour) (Maj. G. B van Zyl) wants to get this Bill through, but if after the Bill had passed we were to take ten men of experience from the other side, and ten farmers of experience from this side of the House, and they were to go the municipal slaughter houses, then the members of the big municipalities would be the first to receive corporal punishment.

We just want to punish cruelty in the towns.

We want to prevent Europeans being too lightly exposed to the danger of flogging. I have never seen greater ill-treatment than in the slaughter houses. The Mohammedans want to kill sheep in their own way, the Jew in his way, and the greatest cruelty takes place there. I should not like the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl), if he were a member of the town council, to receive a flogging. The amending Bill which is now proposed is ridiculous. The existing Act is severe enough against cruelty to animals. I also want to ask the question whether our magistrates, notwithstanding all their capacity, always have sufficient practical knowledge and experience to judge of cruelty to animals. We cannot vote for this Bill, because it is so far-reaching that if everyone were to be tried under the Bill, then the hon. member for Cape Town (Harbour) would get just as big a thrashing as the innocent Hottentot who merely executes his master’s orders.

If there is one thing which surprises me, then it is the ignorance hon. members on the opposite side of the House exhibited this afternoon. An hon. member has suggested outspanning a horse when he jibs along the road. I should like to see what hon. members would do. Will they span themselves in, and put the pole over their shoulders? Or, in case the ox jibs, to outspan the plough and walk home?

What would you do?

I would thrash the animal till it went on.

That would do no good.

Is that the hon. member’s experience of farming? I pity him if that is his experience, and if he says that he has never yet used a whip or had it used—how then could we have trained all the animals we use to-day if we had not used the whip?

But ill-treatment is not necessary.

No, hon. members opposite are the same people we are, and we often have to do something that we do not do with pleasure. It is often necessary also to do something to our own body which we do not do with pleasure.

How many farmers are punished under the existing law?

My hon. friend has just mentioned the case where a farmer was fined £3 15s. because he had knocked off the ear of a donkey. There are many cases of that kind. The animals are properly protected against cruelty, and I do not see the necessity for this Bill. The hon. member for Cape Town (Harbour) told us about all the cruelty that took place in Cape Town, and I was astonished to hear it. But under the existing Act they can be punished severely enough. If animals were not sufficiently protected under the existing Act, I would not be against the Bill, but it is unnecessary and will press heavily on the farmers. There are cases where it is necessary to act severely towards animals. A man who has to support a family as transport rider, e.g., has often to use his whip, but that does not say that he is cruel towards animals. He often cannot help ill-treating the animals a little, but he has just as much sympathy for the animals as the motor owners who support this Bill. The existing Act is adequate, and I hope this Bill will disappear into oblivion.

In the first place, I wish to say that at the discussion a few days ago a few things were said which we cannot allow to pass. The tone of the debate is quite wrong. Hon. members have represented that those who oppose the Bill do not wish cruelty to animals to be punished. That is not correct. I believe that no one in this House would be unwilling to punish cruelty to animals. It is just a matter of opinion whether the existing law is adequate or not. There are members who desire a man to be caned for cruelty to animals; others again that he shall go to prison. That is just a difference of opinion. Everyone who is a friend to animals feels, I think, that if a man is so beastly as to be cruel to an animal he ought to be punished. The hon. member for Rondebosch (Mr. Close) said that we must go to other countries in order to see how animals should be treated. I have travelled a good deal, and have seen ill-treatment of animals, e.g., in Italy, as I have seen it nowhere else, and in France, Belgium and Holland, where dogs are used as draught animals, and so cruelly treated. But from the days of our childhood we remember how the transport-riders behaved to their animals. I have seen love exhibited for the ox that I remember with pleasure, and I have often admired the people in the Transvaal and Free State for the way in which they treated animals, and the patience they showed. I know that there are exceptions, that there are cases where there could be said to be ill-treatment, but we must not allow the idea to spread abroad that cruelty to animals occurs to such an extent in our country. The great majority of our people love animals, and that is why I regret so much such an irresponsible statement of the hon. member for Rondebosch. We must hold the reputation of South Africa high. He is behaving like some travellers who, after a tour of two or three months here, write a book on South Africa and disseminate utter nonsense. We want our animals to be protected. In Europe, on my recent trip, I observed that women actually make babies of their lap-dogs. They refuse to have children, but treat their little dogs as babies. One morning I heard a woman ask: “ Have you a nice tender chop for my baby.” I did not at first understand, but later a little black dog came in through the door, and that was the baby. That sort of civilization we do not want in South Africa, and that sort of pampering of animals I regard as a pest. The worst examples of cruelty to animals one sees in war time, but war has always been approved of in civilized times. The hon. member for Pretoria North (Mr. Hay) spoke about a white slave traffic, but it is not yet at an end, and a conference on the matter is to be held in Holland again. In the “ Spectator ” of last month there is an article in which it is said that the white slave traffic still continues in Europe, and that in spite of the fact that offenders are flogged. Each one of us is of opinion that people who are cruel to animals should be punished, but the question here is how the Bill shall be applied. Were I convinced that flogging would lessen cruelty to animals, then I should be in favour of it, but that is not at all the case. I, personally, am against corporal punishment, and I do not believe in the cane. In my opinion the punishment under the existing law is sufficient. Although I do not doubt the good intentions of the hon. member for Cape Town (Harbour), I cannot support his Bill.

I am of opinion that we cannot treat cruelty with cruelty, and I also think that corporal punishment is mediaeval. It belongs to the time when people were placed on the rack. I am opposed on principle to people being tortured or flogged, and I maintain that the present punishment is adequate. I disapprove of cruelty to animals, and I am in favour of offenders being punished, but the existing law is stringent enough. There are bodies in the country which aim at the protection of animals, and if someone ill-treats an animal he is brought before the court and is sentenced to imprisonment, or otherwise a fine is imposed. Numbers of people who contravene the law in an innocent way would run the risk of undergoing corporal punishment. We are living in a civilized era, and ought not to pass a Bill of this sort.

I want to ask the hon. member for Cape Town (Harbour) (Maj. G. B. van Zyl) whether magistrates to-day apply the maximum punishments provided by the existing law. I think that that is not done, and that the magistrates can impose heavier penalties than they do. The hon. member wishes to allow the use of the cat, but if I propose an amendment that the Bill be applied only to the big towns he is prepared to accept it. We, as farmers, are not, however, going to do that, because then it will be said that civilization only exists in the towns, and that the farmers outside remain uncivilized and may ill-treat their animals. A great many urban boys visit the farms during the vacation and regularly take with them their airguns and spend their time shooting little birds. That I regard as gross cruelty to animals, because very often the legs or wings alone are shot off. The hon. mover thinks nothing of that. The hon. member has spoken of a cat whose eyes had been taken out, and a dog which had been dragged behind a motor, but he should first give me the assurance that the magistrates applied the utmost penalty. However, he cannot do that, and I am convinced, therefore, that the existing law is quite adequate. The members of the House are against flogging, and last year we saw that a provision of this sort in connection with a far more serious matter could not go through. On the farms animals are branded, and if the hon. member were to see it done he would, perhaps, introduce another Bill, or he would run to the magistrate to complain of the cruelty. The branding causes terrible pain, but it is the law of the land that a farmer shall be punished if he does not ill-treat his animals in this way. The hon. member thinks that magistrates will not lightly inflict corporal punishment, but we on the countryside do not wish to be left to the mercy of a magistrate. With all respect to our magistrates, it may happen that a case is wrongly brought, and that the law is severely applied. Already we as farmers have the greatest difficulty with the existing law, and we cannot aggravate the state of affairs. A farmer’s horse may, perhaps, become lame on the road or chafe, and he may then be brought before the magistrate and possibly flogged.

It is no longer the cat-o’-ninetails, but the cane.

That makes no difference, because both are painful.

I move— That the Chairman report progress.

I am definitely against progress being reported, because I am convinced that hon. members have attempted to talk the matter out this afternoon. I want to sit to-night in order to vote on this matter, and I hope that the motion will not be passed. Everybody who opposes the Bill makes an excuse that he does not wish to ill-treat animals, but the matter ought to be brought to a vote now.

Motion, proposed by Mr. I. P. van Heerden, put.

Upon which the Committee divided:

Ayes—37.

Allen, J.

Bergh, P. A.

Boshoff, L. J.

Brink, G. F.

Brits, G. P.

Conradie, D. G.

De Villiers, A. I. E.

De Villiers, P. C.

De Waal. J. H. H.

De Wet, S. D.

Du Toit, F. J.

Fick, M. L.

Grobler, P. G. W.

Havenga, N. C.

Heyns, J. D.

Hugo, D.

Kemp, J. C. G.

Keyter, J. G.

Le Roux, S. P.

Malan, M. L.

Mostert, J. P.

Munnik, J. H.

Naudé, A. S.

Nieuwenhuize, J.

Oost, H.

Pretorius, J. S. F.

Reyburn, G.

Steytler, L. J.

Strachan, T. G.

Terreblanche, P, J.

Van Broekhuizen, H. D.

Van Heerden, I. P.

Van Niekerk, P. W. le R.

Van Rensburg, J. J.

Wessels, J. B.

Tellers: Roux, J. W. J W.; Vermooten, O. S.

Noes—42.

Alexander, M.

Anderson, H. E. K.

Ballantine, R.

Bates, F. T.

Buirski.

Close, R. W.

Conradie. J. H.

Coulter, C. W. A.

Deane, W. A.

Geldenhuys, L.

Giovanetti, C. W.

Grobler, H. S.

Harris, D.

Hay, G. A.

Henderson, J.

Jagger, J. W.

Lennox, F. J.

Louw, G. A.

Louw, J. P.

Marwick, J. S.

Miller, A. M.

Nathan, E.

Nel, O. R.

O’Brien, W. J.

Papenfus, H. B.

Payn, A. 0. B.

Pretorius, N. J.

Richards, G. R.

Rider, W. W.

Rockey, W.

Sephton, C. A. A.

Smartt, T. W.

Smuts, J. C.

Snow, W. J.

Stals, A. J.

Struben, R. H.

Te Water, C. T.

Van Heerden, G. C.

Van Zyl, G. B.

Watt, T.

Tellers: Collins, W. R.; Nicholls, G. H.

Motion accordingly negatived.

We have had a very informative and full discussion this afternoon, and I think the matter has been very thoroughly thrashed out. So full has the discussion been that you found it necessary, Mr. Chairman, to call upon one hon. member to resume his seat because of the irrelevancy of his remarks. That being so, I think no good purpose is to be served by further discussion, and I beg to move—

Upon which the Committee divided:

Ayes—39.

Alexander. M.

Anderson, H. E. K.

Ballantine, R.

Bates, F T.

Buirski, E.

Close, R. W.

Coulter, C. W. A.

Deane, W. A.

Geldenhuys. L.

Giovanetti, C. W.

Grobler, H. S.

Harris, D.

Hay, G. A.

Henderson, J.

Jagger, J. W.

Lennox, F. J.

Louw, G. A.

Louw. J. P.

Marwick, J. S.

Miller, A. M.

Nathan, E.

Nel, O. R.

O’Brien, W. J.

Papenfus, H. B.

Payn, A. O. B.

Pretorius, N. J.

Richards, G. R.

Rider, W. W.

Rockey, W.

Sephton, C. A. A.

Smartt, T. W.

Smuts, J. C.

Snow, W. J.

Struben, R. H.

Van Heerden, G. C.

Van Zyl, G. B.

Watt, T.

Tellers: Collins, W. R.; Nicholls, G. H.

Noes—42.

Allen, J.

Bergh, P. A.

Boshoff. L. J.

Brink, G F.

Brits, G P.

Brown, G.

Conradie, D. G.

Conradie. J. H.

De Villiers, A. I. E.

De Villiers, P. C.

De Waal, J. H. H.

De Wet, S. D.

Du Toit, F J.

Fick, M. L.

Grobler, P. G. W.

Havenga. N. C.

Heyns, J. D.

Hugo, D.

Kemp, J. C. G.

Keyter, J. G.

Le Roux, S. P.

Malan, D. F.

Malan, M. L.

Mostert J. P.

Munnik, J. H.

Naudé, A. S.

Nieuwenhuize, J.

Oost, H.

Pretorius, J. S. F.

Reyburn, G.

Stals, A. J.

Steytler, L. J.

Strachan, T. G.

Terreblanche, P. J.

Te Water, C. T.

Van Broekhuizen, H. D.

Van Heerden, I. P.

Van Niekerk, P. W. le R.

Van Rensburg, J. J.

Wessels, J. B.

Tellers: Roux, J. W. J. W.; Vermooten, O. S.