House of Assembly: Vol1 - WEDNESDAY 7 JUNE 1961
Bill read a first time.
First Order read: House to go into Committee on Diamond Export Duty Amendment Bill.
House in Committee:
Clauses and Title of the Bill put and agreed to.
Bill reported without amendment.
Second Order read: House to go into Committee on Universities Amendment Bill.
House in Committee:
Clauses and Title of the Bill put and agreed to.
Bill reported without amendment.
Third Order read: House to resume in Committee on Water Amendment Bill.
House in Committee:
[Progress reported on 6 June, when the further consideration of Clause 4 was standing over and Clause 11 was under consideration, upon which an amendment had been moved by the Minister of Water Affairs, upon which amendment an amendment had been moved by Mr. van Ryneveld.]
Mr. Chairman, this clause appears to have been inserted, as the White Paper says, because it happens that private owners have been allowing access to Government water schemes against payment of excessive fees and, in one instance, all neighbouring owners have been prohibiting all access to the public over their properties with the result that the public cannot reach the dams at all. The intention of the section is to give the Minister the power to expropriate sand and stone for the purpose of making a public road to any dam, not for any purpose associated with the impounding of water or the carrying out of the work of his Department, but it is designed to deal with the right of the public to get to the dam to picnic there or to enjoy the facilities there. The reason given in the White Paper for this clause being inserted in the Bill, in our opinion, makes it abundantly clear that this measure should have been sent to a Select Committee at some time or other, either before or after the second reading. Here is a group of people who are apparently identifiable and who are having their rights expropriated by statute, a group of people, according to the White Paper, which insisted on their present legal rights being maintained. I hope the Minister will give careful consideration to this aspect of the matter and I hope that even at this late stage he will find it possible to withdraw Clause 11 from the Bill. It has nothing to do with the distribution or the impounding or the use of water. From the point of view of the principle of the original Act it is entirely foreign in its whole concept. The people who are going to lose their rights have never had the opportunity of stating their case before the Select Committee. We have an ex parte statement from the Department in the White Paper that certain farmers have stood on their legal rights. Sir, they are entitled to do so. They cannot expect the Government to expropriate their rights. We do not know who they are. We have not been able to approach them to find out what their views are or why they adopt that attitude. We can merely say that in the absence of any evidence they are probably responsible people acting in a responsible manner, and why the Government should come along with this blatant expropriation of legal rights I cannot understand. I put this to the Minister seriously. He would not allow this to go to the Select Committee, so that these people have not been heard. Had they been a smaller group of people, this would have been a hybrid Bill, but the language is apparently sufficiently wide to exclude that position being arrived at. I want to emphasize particularly the point I raised very briefly yesterday. It is that if the Minister is providing a public road to give access to dams, is he and his Department going to take charge of all the amenities and the recreational facilities and the public health necessities which will flow from a gathering of human beings in large numbers, picnicking on the banks of a dam which may be used to supply water to a municipality? Here is a right to expropriate land. Nothing is said about how much land is to be expropriated, or how wide the road is to be. It is merely a naked right to expropriate the farmers’ land. I hope the Minister will reconsider the whole position and withdraw the clause. We cannot lightly give the Minister the right simply to take away valuable existing rights, the rights of a farmer to use his own property and to the integrity of the property without any compensation and without knowing to what extent those rights are to be violated, how big the road will be, etc., nor the continuing nuisance it will create by providing material from gravel pits, which is provided for here, and which continues year after year. None of these things is determined. They are indeterminable.
Secondly, I want to come to Clause (b) and I want to ask the Minister to reconsider this. It is this right given by the Minister to a person to enter the farmer’s land without any previous notice. A man authorized by the Minister or the Secretary goes to the farm with that authority from the Minister or the Secretary in his pocket. He is not even called upon to produced it until he is challenged. I think that is a very bad state of affairs. I think it is a complete transgression of the rights of farmers who are now not even being put into the position to receive the courteous treatment that the Bill itself provides in other respects. If the Minister wants to send an official to a man’s farm to inspect it for the purpose of providing waterworks, he must give three months’ notice, and the farmer knows when he is coming and makes arrangement accordingly. Can anything be more detrimental to good relations between the Department and the farmers than to find the man walking about on his farm, and only when challenged does he produce a note saying that he has authority to be there—all sorts of trouble can ensue and I ask the Minister to reconsider this clause. It is not even common courtesy. We are not moving amendments because we think the principle is wholly bad. We think the Bill will not suffer in the slightest degree as a measure dealing with the conservation of our water supplies if this clause is withdrawn in toto and I ask the Minister to consider it seriously.
Mr. Chairman, I think it is perhaps necessary for me to rise at this stage and to explain the object of this clause to the committee. The object of Clause 11 is to enable the Minister to expropriate land on servitude for the purpose of constructing a road to a State water work, a road which will not only be used by the Department but also by the public. Naturally the Department will fence in such a road, maintain and control it, and the use of that road will be in the discretion of and under the supervision of the Department. In actual fact, therefore, it remains a private road of the Department, and because it is not a public road in the true sense of the word, where we have such access roads to dams which are not situated along main roads, we can control that road. We may, for example, lock the gates at night. We can throw it open when we like. I want to draw the attention of the committee to the fact that Section 56 (5) provides that the control over a State water work and access to such work vests in the Minister. That is in terms of the original Act, but Section 70 also provides that the Minister will control access to a State water work, including the use of boats etc. In other words, it is absolutely essential that the Department should strictly control the activities at such a dam.
We are not disputing that.
It happens that a State water work is not situated along a main road and the owner refuses to allow you access—when the dam was being constructed you had access to it; you probably came to some agreement with him at the time in regard to the right to construct a road so that you could take your implements to the dam, but the work has now been completed. The land was not expropriated for that purpose. Now the owner says: No, this is my private property and I am not going to allow anybody to go over my property to the dam. How can the Department perform its function of exercising control over the dam? The hon. member for South Coast (Mr. Mitchell) shakes his head. I make provision for that in (b). However, I do not want to be distracted. The hon. member for South Coast says that nowhere is it laid down how that man is to be compensated for the land that is expropriated, but that is not so. Section 60 (1) lays down specifically everything that should be taken into account when land is expropriated on behalf of the Department. I used this argument last night and asked how we could expropriate land for road making purposes while the Provincial authorities were actually the organizations who had to expropriate land for road-making purposes and that there would be two different bases of valuation. The hon. member ought to know that there is not uniformity over the whole Union amongst the provincial authorities in respect of the basis on which land is expropriated for road-making purposes. In the Cape Province, for example, if a road has to be re-routed and the divisional council requires land for that purpose and that road will pass over the veld of a farmer, the farmer is not compensated for that veld. He is only compensated for building land. I do not know what the position is in Natal, but I do know that that is not the position in the Free State and the Transvaal where they do not have divisional councils. In other words, there is no substance in the argument that there should be uniformity.
But let me go further. The basis of compensation on which the Department of Water Affairs may expropriate or acquire a servitude is laid down in the Act but it is totally different from that laid down in the Railways Act for expropriation for railway purposes. It is also totally different from that laid down in respect of land acquired by the Department of Lands. It also differs in the case where land is acquired for the purposes of Bantu administration and development. In other words, what will actually happen if the motion of the hon. member for South Coast is accepted, is that on the same farm where you wish to construct an access road to a dam, land will of necessity have to be expropriated for the construction of the dam as well as the land that will be submerged. That will be done in terms of the provisions of Section 70 (c) of the Water Act, but when land has to be expropriated for the construction of a road which is connected with the dam and which is required for the dam, it will have to be expropriated on a different basis and on a poorer basis, or he may not even get any compensation for it at all and in that case there will be much more dissatisfaction amongst owners. Why must I be treated in a certain way in respect of a certain portion of my land which is required by Water Affairs, and in a totally different way in respect of another piece of land that it requires? That is why we say no, we must have control. I may just say this to the Committee that if every case where there is unwillingness or unwise action, or lack of co-operation first has to be dealt with, and evidence led, I wonder how the Government will be able to do its work. Let me give an example We constructed a dam not far away from a town, about three miles from the main road, and the road goes over a farm, it was used during the time the dam was being constructed, but the land was not expropriated. When the dam was completed—fencing had been erected—the farmer put a gate there. The secretary of my Department went there in order to inspect the works The gate was locked and the owner simply said that it was his private road and that he would not unlock the gate for him or for the Minister. He had to walk three miles further in order to get to the works. State water works are constructed with public funds and they constitute a great attraction for the public and the public is allowed to visit those water works and to camp there, and fish and sail on the dam, provided they do not pollute the water. All that is done under the supervision of the Department. We only allow those facilities to be made available to the public on condition that the essential accompanying services are provided. Our policy is that where local municipal authorities seek the right to provide the necessary facilities under permit or by way of tender, to grant them that right. Unfortunately you do not have the conditions everywhere that you have at Hartebeespoort Dam or Loskop or Vaal Dam, where the dams are along the public road. A dam may be some distance from the road. This road will be fenced in and the owner will be compensated and in determining the compensation due regard will be had, in terms of the law, of the indirect loss which he may suffer or of any inconvenience that he may suffer. He gets compensated for that. It is not a question of the Department ignoring his rights, but we take everything into consideration and compensate him fully. We want to ensure that he will not suffer on account of the road, but we cannot allow ourselves to be placed in the position where we have no access to state water works. Clause (b) provides that if an official produces proof that he has the authority of the Minister to go there, he should have the right of access over the man’s property. Let me give one example. The law provides that in the case of expropriation or servitudes which are acquired over certain property, the Land Board, which falls under the Department of Lands, has to value the land for compensation purposes. They then come to the Department but it remains the responsibility of the Department of Water Affairs to offer that compensation to the person concerned. It happens that disputes arise because the owner reckons that the compensation is insufficient. The complaint is submitted to Water Affairs, who had made the offer, but the Land Board who inspected the site has to make a determination. But the owner complains to us and says that certain factors have not been taken into account. To give an example, he says that there used to be a little building there or there was a borehole which was worth so much and it is now submerged, or he had a pump somewhere else and the Land Board did not take that into account and he has not been compensated for it. In order to ascertain whether the man has any ground for his complaint, a further investigation has to be instituted. There have been instances where my Department has sent an engineer, after a letter had been sent to the particular farmer concerned who has refused the offer, notifying him that we were sending somebody to conduct an investigation, but when he arrived at the farm the farmer had said to him: I am not going to allow you to conduct an investigation into the truth or otherwise of my allegations; if you refuse to take my word for it I will go to court. I now ask this Committee: How are you going to settle the dispute in a peaceful manner unless you have the right to send an official to do the inspection? I want to say this in respect of notices: I am a farmer myself and if there is one thing to which a farmer is more allergic than any other type of person—and I say a type of person, because a farmer is a particular type of person; he is very jealous of his rights —it is that every Dick, Tom and Harry should walk around on his farm. He likes his property rights to be respected.
You are beginning to think like we do.
A farmer likes the state to respect his rights. In practice that is an instruction from me to that effect and administratively both my Departments, Water Affairs and Technical Services who have a great deal to do with farmers, regard it as absolutely essential that there should be the best possible relationship between the farmers and them. I want to assure the House that that is my approach, and I have laid it down as my policy, whether it was necessary to do so or not, that a man’s property rights must be respected in all respects, and where possible he should be given notice timeously of the fact that an official will be on his farm at a certain time to do this or that and that if he could be present it would be greatly appreciated, to deal with any matters which he wishes to submit to the official. That is my complaint about the motion of the hon. member for East London (North) that no official should go onto the property unless the farmer has been notified in writing. Under certain circumstances it is necessary to get to a place quickly. I think for example of floods. In that case there is no time to send out notices. I know of certain parts where it takes 14 days for a person to get his post from Cape Town or Pretoria. You have given him notice. It is laid down in the Act that he must be notified. He does not go to the post office and in practice that position is unrealistic. But in practice we adopt this policy as far as possible. We will not unnecessarily annoy people because we need their co-operation. That is why I feel it is absolutely essential that we amend the Act. The object is not to deprive people of their rights, because I have a lot of sympathy with those people over whose land servitudes are acquired or whose land is expropriated. Those are all compulsory sales and that is why Section 70 (c) lays down a formula in terms of which compensation has to be paid, where all these factors, such as inconvenience, sentiment etc. are taken into account; I make bold to say that generally speaking the compensation that people receive in respect of land that is expropriated by the state is much higher than its market value. I have no objection to that! I think it is right. But it is also important from an educational point of view. If we cannot allow the public to go to the state water works because we have no access roads, it will be to the detriment of our youth from an educational point of view. Hon. members will be surprised to learn how many school children visit different state water works from time to time under the supervision of their teachers, to learn something on the site. It is, therefore, not only from a recreational point of view that the public should have access to a certain place under the supervision of the Department, but from an educational point of view it is also very valuable and I want to appeal to this Committee to accept these amendments as moved. If it does not work as well as we think or if powers are abused, the law can always be changed. In the long run people are not there for the sake of a law but a law is there for the sake of the people. If it does not work as well as we think, therefore, the law can be changed again, but I do not think that will be necessary. It will greatly assist the Department to overcome many of the problems with which it is faced to-day.
I am glad to hear the Minister this afternoon laying down the doctrine that a South African Republican’s home is his castle, because I think we will go a long way along those lines, but it really has not got anything to do with this Clause. The clause says that the Government is taking the right, through its Department of Water Affairs, to expropriate a man’s property to build a public road to a dam, and in paragraph (b) it says that if the Minister in connection with that work or the secretary as the case may be, wants an official to go on to the farm, they give him a permit; they give no notice to the farmer; he goes there with the permit in his pocket until he is challenged when he produces it. I am sorry, the Minister now has the whole record completely bunged up by this explanation that he has just made, if I may put it that way without offence. The Minister has dealt at length with the necessity and the desirability of allowing the public to approach the dam and to be able to enjoy the amenities provided there, to picnic spots and places of recreation and so on.
He must have a road to the dam.
He stresses the desirability of that as a principle. Sir, we can dispose of that very quickly. There is no question about that, we are prepared to accept that, but that is not the point at issue. The point at issue is this: Why does the Government expropriate the rights of the farmers who own the land in order to make a road to the dam—not the right of the public to enjoy the amenities of the dam. The Minister says that there will be difficulties in the four provinces because the different provinces have different laws in regard to road-making. That is no difficulty. There is no difficulty in regard to national roads to-day. There is no difficulty in any province in regard to road-making. The Minister is manufacturing a difficulty so that he can climb over it. He quotes the South African Railways as a case in point and says, “Look, the Railways have to have one law”. But they do not; the Railways do not expropriate land in terms of one law. In Natal it uses an old Natal law for expropriation. There is not one law for the purpose of expropriation of land far Railway purposes.
That makes it even worse; that was not your argument last night.
I hope the Minister will stick to my argument to-day. I do not want to repeat what I said last night; it was a good argument and I shall repeat it only as briefly as possible. Let us accept then that we are all agreed that it is desirable to allow the public to have access to the dams for the purpose of enjoyment. I say that the building of a road, the provision of sanitary conveniences, the care of all the people who go there to enjoy themselves, is not a matter for the Department of Water Affairs, any more than it would be for the South African Railways or for the Department of Public Health or for that matter for the Department of Lands. There is the Provincial Council with its existing powers and existing rights which is capable of dealing with all these matters and under the constitution of the Republic it falls fairly and squarely within the purview of the provincial councils concerned. Road-making, picnic spots, amenities on the edge of the water and so forth—all that falls under the care of the provincial councils. It has nothing to do with the Department of Water Affairs. The Minister brings in these examples of the director or a senior official, or it might even be he himself, who went to a farmer who was standing at the gate and who would not let him through because he was defending his land. Certainly. What has the Minister got to grouse about? The Minister or the Secretary has no special privilege which permits him to encroach on a man’s land. Then the Minister comes to paragraph (b) and he says that the post may take a very long time in reaching the man if you send him written notice of your intention, or there may be floods or the man may not go to the post. But the fact of the matter is that under this Act already, in regard to the work under (a), the water works themselves, the building of the dam, the Minister must give three months’ notice in writing of his intention to the farmer concerned. My contention is a simple one: If he can give three months’ notice in regard to the building of the dam why cannot he give three months’ notice in regard to the acquisition of land for a road to the dam? It must be borne in mind, Sir, that he has already got a road in existence to the dam; he is going to have the road which was used by the contractors or the builders or the Department when they built the dam. There is no argument about that. That is provided for here. The Minister has quoted the section himself. In other words, the Department has the full right to go on to a man’s farm after giving him three months’ notice in writing, to carry out their survey and to carry on with their work; to expropriate land to make a road from the main road to the site of the dam. Full authority is granted in the Act at the present time. That road having been established is not a public road; that is the point in this clause. The point here now is that the Minister has the right to make a public road. If he does not want to use that road but if he wants to put another road beside it, then of course that only makes it worse, but one would think that when he has made the road for the purpose of the construction of the dam and the water works, that that is the road that he would then take over and proclaim a public road, in terms of this clause if it is passed. There is no need then to send an official wandering over the man’s farm. He has got the road there already. But it is a private road in the sense that it is not public. The Minister has those powers now but on top of that he says: “I am going now to expropriate the rights of the land owners and I am going to expropriate them without compensation and I am going to have this as a public road”.
Where did he say that?
Insofar as those roads are to be determined, the clause does not determine them; it does not limit them. The Minister may say that he is going to act reasonably. He may say that he has given instructions to his Department to act reasonably but that is not before us; it is not in the Bill. There is nothing to show that the Minister will act reasonably. The Bill says clearly “to enable him to construct access roads to such Government water works for use by the public or by any person”, and that is all. There is nothing else here at all, and I say that this is plain piracy if it is allowed to go through in this form. [Interjections.] Hon. members behind the Minister are very vocal in their interjections. I hope they are going to stand up and say that they support the Minister on the principle of direct expropriation of a farmer’s land like this without compensation. If any of them have a belief that compensation is payable under these circumstances—not compensation payable for the work, not compensation payable for the other road which is a private road for the contractor, but for this road—then let them get up and make out a case, because I say that the doctrine of a South African Republican’s home being his castle is being infringed here if this is allowed to go through. The Minister is not only entering upon the demesne under (b) without giving any notice at all, but he is expropriating part of that man’s property against his wish, and for no other reason but that the farmers concerned have said “We demand that our legal rights shall be observed by this Government”, and so the Minister says, “you do, do you?” then I will expropriate your property. That is what the White Paper says.
I am convinced that the previous speaker has read neither this Bill nor the amendment. He is completely at sea. Section 60 (1) clearly lays down what steps should be taken when land or any other rights are expropriated. An amendment is now being inserted which amends sub-section (1) of Section 60 which will also give the Minister the right to expropriate land for access roads. Sub-sections (2) and (3) lay down the compensation that should be paid. What is so strange about it if the hon. the Minister or the Department want to have an access road? Surely it is necessary for the Department to get to those water works and the public also want to get there. I believe the hon. member was an Administrator and he passed many ordinances according to which land was expropriated for public road purposes. Why cannot the Minister do the same for this specific purpose? Why is that suddenly such a big crime? No, if we wish to be serious in our opposition we should at least advance well-founded arguments in this House—we should not talk merely for the sake of talking, as the hon. member is doing, because he has been talking since yesterday and all he does is talk-talk but he says nothing. It is high-time that he thinks before he speaks again. Had he studied the Act properly we would not have had this stupid opposition.
However, I did not rise to attack the hon. member because of this stupid opposition on his part. I want to raise another serious matter with the hon. the Minister and I trust the Minister will realize that I definitely have a strong case in this respect. The Minister was kind enough to move an amendment which provides for the payment of interest. We are grateful to him for that because we pleaded for that during the second reading debate, together with the hon. member for East London (North) (Mr. van Ryneveld). I now want to ask him to amend this amendment of his still further. He says in his amendment that interest will be paid from time to time and that that interest will only be paid if the Department occupies that land or enjoys the other right immediately. If the owner is left in possession of his property no interest will be paid. Mr. Chairman, it is not only land that is expropriated; certain servitudes are also expropriated. Let me give an example. The Minister expropriates a servitude to store water. That case is sub judice; the person does not accept the compensation offered and he takes the case to a water court. That case lasts two to three years. During those two or three years there is no rain and no water flows into that new dam. But three months before judgment is given it rains and the water in the dam submerges the man’s lands. In terms of the amendment moved by the Minister that man is only entitled to interest from the date on which it rained and when water was stored in that dam. But the State has had that right from the date of expropriation. Had it rained three years earlier, it would have had the right to store water in that dam. If that water subsides the farmer will in any case again have the right to graze his stock on that land or to plough those fields, but in that case he does so at his own risk. The servitude right does not give the Government property right; it only gives him the right to store water there from time to time. When the water subsides it once again becomes the property of the farmer, but in that case he does not receive interest on the compensation paid for the servitude which he should have received. I want to ask the Minister whether he will not consider amending this amendment of which he has given notice in such a way that sub-section (b) will fall away completely and to let the amendment read as follows—
That excludes all those cases where servitude rights are expropriated, and those people whose servitude rights have been expropriated will then receive interest from the date of expropriation. Let me give another example. In the area where I live a servitude to store water was expropriated from a certain person in 1957. Three days subsequent to the notice of expropriation there was a flood and everything was submerged, including his lands, with the result that that person lost all his crops which were on the land at the time. Because the expropriation had taken place three days prior to the flood, he was not entitled to claim compensation from the State in respect of the crops which he had lost. He gets compensated for the land, true enough, but not in respect of the crops he had lost. That case has been going on for two years and during all that period he has lost the interest on that money, as well as his crops. Had he at least been paid interest, he could have said: “Very well, I will get my capital on due date; that money has been outstanding for two years, but now I will at least receive interest and that will compensate me for the crops that I have lost.” I ask the Minister to consider this matter seriously and to exclude servitudes from the provisions of his amendment.
The hon. member for Heilbron (Frankfort) (Mr. Froneman) accused the hon. member for South Coast (Mr. Mitchell) of not having read the Bill, but I am afraid the hon. member for Heilbron (Frankfort) may have read the Bill but he does not understand it. I am surprised at his quoting Section 60 of the original Water Act of 1956 where the Minister is given all the powers of expropriation that he wants as regards approaches to works and the maintenance of works. The Minister’s amendment in paragraph (a) of Clause 11 is quite definite. The Minister states here that he wants the power to construct an access road to such Government water works for use by the public or any person, and in the explanatory memorandum the Minister says—
That is put in italics; there is no doubt about it, the Minister wants the power to construct a public road, and he now makes it very much worse. If I understood him correctly the Minister says that this road may be used at the Minister’s discretion; that he can lock this road if he so wishes, and then he says he wants the right to declare a public road. It will not be a public road if it is under the control of the Minister, if the Minister has the right to allow access to the water works only to his particular friends or to the children of certain schools. The Minister does not realize how he is intruding on the rights of property owners. If a water work is of such importance that the public wish to have access to that road, it can be obtained through the provincial authorities. The provincial authorities can be approached and they have all the machinery to declare such a road, which is necessary for the public, a public road. It is not in the Minister’s province. The Minister is creating a dangerous precedent. He is intruding here on the rights of provincial councils and, worse than that, the Minister has now said that this road will not be a public road, that the Department can lock it if it wishes to do so. That is not stated in the Act, it is not stated in this amendment. It is not stated in this amendment that this road will be constructed and maintained in excellent order and fenced. That is what the Minister says, but I wonder what some future Minister of Water Affairs might say in regard to the construction and maintenance and fencing of these particular roads. The Minister must not imagine that this right of access to public works is going to affect only the farmer on whose property the works have been constructed. The Minister says that excessive fees have been charged by certain people for fishing in these various Government dams. These roads may cross two or three other farms which do not in any way adjoin these Government works. [Interjections.] It sounds as if the hon. member for Cradock (Mr. G. F. H. Bekker) who has just interjected also wants a public road over his farm to one of his dams. Sir, we in South Africa regard the rights of property owners as sacred, and we do not wish to give Ministers the power to construct public roads across farms when machinery already exists for the establishment of a public road where necessary.
Order! The hon. member has already used that argument.
I am sorry; I will not repeat it. I stood up to protest against the Minister’s reply in which he said that this public road, which the amendment says is going to be a public road for the use of the general public would be a road under the Minister’s control and that it may be locked at certain times to prevent people whose behaviour is not what it should be from using it. This right of way is not a public road at all. The Minister should say “a roadway to be used by anyone at the discretion of the Minister and his officials” then we would understand it but the Minister dare not come with amendments of that nature. Sir, I make this appeal to the Minister. He will live to rue the day if this provision remains in this particular clause. The Minister will be well advised to reconsider this matter and to withdraw, I should say, the whole clause, because even the powers which he seeks under paragraph (b) are not essential. The Minister is fully covered in Section 60 of the Act of 1956 as far as expropriation and the availability of property for inspection by his officials are concerned, and I do ask the Minister to be reasonable and not to be difficult. After all the Minister must be able to sense the reaction to legislation of this nature in this country.
Order! The hon. member must come back to the clause.
Yes, I am coming back to the clause. We are dealing here with the general public and expropriation by the Minister in order to give the public access to certain water works. That was why I transgressed a little too far in stressing the reactions of property owners in general. I ask the Minister again before I sit down rather to accede to the request of this side of the House now, even if it is a come-down for him, than to have regrets afterwards and to harm not only this Government but future Governments too who would make amends by repealing this legislation but who would not be able to make amends for the damage that will be done if this provision is allowed on our Statute Book.
The two hon. members who have spoken on the other side of the House this afternoon are definitely ignorant or “moedswillig” (spiteful) …
Order! The hon. member must withdraw the word “moedswillig’”.
I withdraw it, Sir. The hon. member for South Coast (Mr. Mitchell) says that the Minister will expropriate land without paying compensation. That is definitely incorrect. If he reads Section 60 and this amendment in Clause 11 (a) he will see that this is an amendment to Section 60 (1), and the first words of 60 (1) are the following—
I wonder why the hon. member is shaking his head. Surely that is clear enough. On what grounds the hon. member bases his statement that no compensation will be paid I fail to understand. The hon. member goes further and says that, for the sake of uniformity, it should rather be left to the provincial authorities to construct the road if a road is necessary. In terms of Section 60 the person whose land is expropriated will receive more compensation than he will if the provincial administration constructs that road.
Hear, hear! The farmers know that.
The fact is that in the Transvaal—the position is the same in the Cape Province—no compensation is paid where a public provincial road is constructed over grazing land. Compensation is only paid in respect of building land. Therefore, if a road is constructed by the provincial administration from a public road to a dam, there is no possibility that that person will receive compensation if that road goes over grazing land, whereas this clause very clearly lays it down that compensation will be paid according to the market value of the land plus the fair value of essential improvements, plus the fair value of luxury improvements, plus compensation for inconvenience and loss of income. Under this clause, therefore, a person will stand a better chance of receiving compensation where his land is expropriated than where the provincial administration is liable for that compensation. The hon. member for Albany (Mr. Bowker) says that it is not a public road. The Minister said very clearly that it was a private road.
Are you sure?
The Minister said that it was a private road because it was a road that was controlled by the Minister’s Department.
In that case the Minister must change his amendment because it says it is a public road.
No, it does not say that it is a public road. It is a road that is used by the public. That is a road which is constructed by the Department of Water Affairs and it is maintained by the Department of Water Affairs and the Department of Water Affairs has the right to refuse anybody access to or the use of that road. It is therefore not a public road, but a private road.
The amendment does not say that. It talks about the public which is allowed to use that road.
He says that it may be used by the public but subject to the approval of the Minister or his Department. The other point that was raised, namely the right of provincial authorities or city authorities is not at issue at all, because it is possible to provide recreational facilities there and if they are provided they are usually provided by a municipality in the neighbourhood. We have the case, for example, of the big irrigation dam in the Free State, the Sand-Vet dam. That is an irrigation dam which was built by the Department of Water Affairs. It is a Government dam. But the surrounding area is used for recreational purposes and it is under the complete control of the Free State Provincial Administration. It is not the function of the Department of Water Affairs itself to provide those recreational facilities. We have a dam in my own constituency, the Shiya-Pa-nGubu. The public uses it and it is a very popular angling resort. The Department of Water Affairs is not responsible for that, however, but the Publicity Association of Barberton exercises the necessary control. Those recreational facilities are provided there; that is not the function of the Department and neither is it sought here to transfer that function to the department. Surely it is clear that where the State builds a dam it should have the right to have a road to that dam, even when the dam has been completed. Surely that is reasonable. And if it is necessary to have a road to that dam and the State is prepared to pay compensation for the land which is traversed by the road to the dam, I cannot see what objection anybody can have to this amendment. The department must be in a position to get to that dam even when it has been completed. I am sure the hon. member admits that. There has to be a road for the officials of the State to visit the dam and to see whether everything is in order and it has to have access to it in order to effect maintenance work. The State is prepared to pay compensation for that road which it wishes to use and I simply cannot understand what objection hon. members can have to that.
The hon. member overlooks the fact that we have got a White Paper with an explanation in relation to this clause. The White Paper says—
That is what the hon. member for South Coast says. Then it goes on and Section 60 is quoted which says that “the Minister may, subject to the obligation to pay compensation, as hereinafter provided, expropriate any land or any right in respect of land or any existing right or appropriate any substance or material on any land or temporarily use any land or any waterwork on any land within a Government water control area …” That is just in relation to the work that he can compensate, but in this amending clause it does not say that compensation shall be paid for a public road. I want to ask the hon. the Minister in his reply to say if he intends to maintain that road, fence it and see to the drainage …
He said so.
No he did not. The hon. Minister talked all round and round the subject, but he did not say that he would definitely fence it and maintain it in the same way as a provincial council does when they expropriate land. Because land is very valuable near to any big irrigation scheme. The holdings are usually small and if the hon. the Minister is going to put a public road for access to the public, just for picnic purposes, and does not see to the requirements of public health, such as public latrines, etc. what is going to be the result? He is going to take over a piece of valuable land, and we do not know what sort of compensation is going to be paid. But the maintenance is also very important, because as the hon. member for South Coast pointed out the drainage on that type of land is essential to stop other land from being destroyed or spoiled. We know what soil erosion does when water runs off even a well-maintained road, and what trouble we have had in the past with the construction of national roads where drainage has been put into farmers land that is cultivated and where serious erosion has taken place. It is essential for us to know before we give the Minister this right of taking over such land as to the maintenance of such road and the fencing thereof. Because what happens to irrigable land in the vicinity of dams and waterworks? They usually produce crops that are very easily preferred. I personally would not like to own a farm through which people go just for picnic purposes and to enjoy themselves, going through my lands where my crops can be pilfered by the public. I think we should get a full explanation of the exact meaning of all this. What does the hon. the Minister intend to do with the land when once he has expropriated that land for a public road for the use of the public, leading to picnic spots and such like. Those are the people who do so much damage to the crops because if the road is not maintained and fenced, we know what happens. The road gets torn up. It is usually low-lying land in the vicinity of irrigation works, and then cars and other vehicles go further and further out into the veld tearing up the veld, leading to very serious soil erosion. I would like the hon. the Minister to reply to that particular point.
Since last night hon. members opposite have been objecting to this clause and I think the time has arrived for someone to say that as far as this clause is concerned, hon. members are only objecting on principle, because they have no arguments or good grounds for objection. In the first instance I should like to deal with the question of compensation. It seems to me that hon. members are still under the impression that no compensation will be paid where land is expropriated for a road as is provided for here. The hon. member who has just sat down has also created the impression that he was not convinced that compensation would be paid. That has already been dealt with by members who have spoken before me but I want briefly to state the position clearly once again. Subsection (1) of Section 60 says clearly that the Minister may expropriate certain land or material, for certain purposes, subject to the payment of compensation. We are now adding an additional purpose namely to make a road available to a State water work for use by the public. In other words is remains the same land or servitude or right which the Minister has to expropriate but for an additional purpose, and that additional purpose does not in the least affect the question of compensation. Sub-section (a) of Section 60 provides that three months’ written notice must be given to every person affected by such expropriation and that includes the expropriation of land for a road, and it must be stated in this notice what the extent of the expropriation will be and what compensation the Minister intends paying to the owner. Sub-section (3) of Section 60 lays down the basis on which compensation has to be calculated. I think that is clear now and I hope those arguments will not be taken any further. It is clear that the people whose land is expropriated for the purposes of such a road will be compensated.
Secondly, I want to draw the hon. members’ attention to the fact that there will only be expropriation in respect of State water works and not in respect of any other water works, not in respect of water works which are constructed, for example, by irrigation boards or private individuals. That is to say, it is only in respect of water works which are exclusively, 100 per cent, financed by the State. The second question that you have to ask yourself, Sir, has already been answered by the hon. member for South Coast, namely whether it is necessary or desirable that the public should have access to such a State water work, a water work which is worth while visiting, a State water work where it may perhaps be possible for the public to relax or a particular State water work which the public merely wish to visit for the sake of looking at it. The hon. member for South Coast has already replied to that question by saying that they realized that it was necessary and desirable that there should be access to such a State water work. It is desirable that there should be access to a State water work and the hon. member for South Coast admits it. The next question is how that is to be obtained and hon. members opposite have throughout the debate created the impression that they wanted to protect the rights of private individuals, but I want to tell them very clearly and unequivocally that they are doing exactly the opposite. Through their actions here to-day they are harming the private individual and I will prove that. They say the provincial administrations should be the only bodies to expropriate land for roads. Let me take the case mentioned by the hon. member for South Coast. You have an exceptionally large State water work and it is desirable to have a road to it, but the local authority or the provincial administration is not inclined to seek access to it. One or two courses is left open to you. Either the provincial administration must build a road, or as the hon. the Minister envisages here, he must do it himself. In the Cape Province we have the position that at least 90 per cent of our land was allocated in terms of the proclamation of Sir John Cradock in 1813 and all the allocations that were made in terms of that proclamation, which applies to at least 90 per cent of the allocations in the Cape Province, the State retained its right to construct roads and its right to use material. The procedure which is followed in the Cape Province to-day, and I should like the hon. member for Albany (Mr. Bowker) to listen to this because this affects his constituents, is that not a penny compensation is paid to anybody from whom land for a road is expropriated. He is only compensated for improvements to that land, for example, such as trees or a building or a vineyard or something similar. But in the Cape Province nothing is paid for the land itself, because the right to construct roads over at least 90 per cent of the land in the Cape Province was retained under the 1813 proclamation of Sir John Cradock. I am not quite sure what the position is in other provinces, but I assume that the same position obtains in the Free State and in the Transvaal in any case, namely that no payment is made for the land but only for the improvements. It may be that there is a State water work in the constituency of the hon. member for Albany, and that his constituents may be faced with the choice of having a road constructed over their land to be expropriated by the Minister who is prepared to pay compensation, or on the other hand that the provincial administration expropriates the land in which case they get no compensation. Let us assume that it is essential to have the road. Which one of the two procedures is the more favourable to the owner concerned? Surely the procedures suggested by the hon. the Minister. But the hon. member for Albany does not want that. He prefers a procedure according to which land for a road can be expropriated without any compensation being paid to the private owner. I trust the position is clear now.
I have to reply to the hon. member for Ceres (Mr. Muller) who singled me out. I never raised the question of compensation. The question I am raising is quite a different one. The hon. member for Nelspruit (Mr. Faurie) quotes the original Act. We have no complaint with the original Act. It was passed by the unanimous vote of this House without any objection whatever. We stand by the original Act, and we say that it covers the Minister’s requirements. But the Minister has now come along and he lays down in this Bill the right to proclaim a public road.
Order! The hon. member has used that argument ad nauseam.
Sir, I am only answering the hon. member for Nelspruit who wanted to argue that this road in question was not to be a public road. The hon. member and the Minister now say that it is to be a private Government road that can be locked up at the Minister’s discretion, and people may be allowed the use of it at the Minister’s discretion. We have been allowed to argue quite wrongly on this particular clause. The Minister has not explained what he actually meant. Only this afternoon, after all the debate yesterday, the Minister has come along and said that though my memorandum reads “a general public road”, my amendment to the Water Act states that it is not to be a public road; but it is only to be a road available to the public at the discretion of the Minister, and will be “a locked road”. I maintain that we agree that the Minister should have access to waterworks. There should be this access and the original Act provides for that, but when this access becomes a public right, then the Minister should allow the provincial authorities to be responsible for its maintenance and upkeep as a public road. It seems that we have been arguing at cross purposes. The hon. the Minister does not actually mean what is stated in his amendment, nor does the Minister stand by what is explained in the White Paper. What the Minister actually desires in this amendment is that a government private road can be constructed to waterworks which may be available to the public. That is what the hon. the Minister says he means by this amendment. Why does he not alter the amendment accordingly? Why the waste of time and money in prolonging this debate? The hon. Minister has chosen to give his own interpretation to the amendment, which is not correct according to the English text or the Afrikaans text. I appeal to the hon. the Minister to amend this clause. No doubt he can meet the wishes of both sides of the House. I want to tell the hon. member for Ceres that I have full knowledge of local councils. I have been a member for I don’t know how many years, and I know that when a road becomes a public road, it must come under the control of the Provincial Council because there is legislation to ensure its maintenance and its proper designation. Whereas if it is declared by the Minister and called a public road, there is no authority which can be approached. The Minister of course may pay adequate compensation for this particular right of way, but there will be no guarantee in regard to the maintenance of the road by the Minister. It is wrong that the Minister should have a public road falling under his control whereas our Constitution lays down that the maintenance and construction of public roads falls within the province of provincial councils and the Minister should not interfere with it. The Minister should have told us last night that he did not mean a public road at all. He calls it a public road and does not understand what a public road means. When a road is available to the public, the general public, such a road is a public road.
I rise merely to move formally my further amendment to the Minister’s amendment to Clause 11, and to which I referred a moment ago, as follows—
I have incorporated the amendment moved by the hon. member for East London (North) (Mr. van Ryneveld) in order to make it clearer.
I am prepared to accept the amendment of the hon. member for Heilbron (Mr. Froneman) because I consider that he has made out a good case on behalf of those people whose land is not actually being expropriated but in respect of whose land servitudes are taken out, so that they will also be treated on the same basis as persons whose land is expropriated. I have no objection to the payment of interest in respect of that portion of the land which is not occupied. This is of course the amendment which was proposed by the hon. member for East London (North) (Mr. van Ryneveld).
I might just tell the hon. member for Albany that I am very glad that he has at long last realized that his reasoning was incorrect. A road which can be used by the general public does not necessarily have to be a public road because I as a private owner of land may have a road across my farm and I can allow the general public to use it whenever it suits me. It does not necessarily become a public road as a result. We have, for example, such a road at the Vaal Dam which has already been open since 1938. The general public is allowed to use the road but the Department closes the road for at least one day in the year to prevent the public gaining the right to claim that it is no longer a private road but that through usage it has become a public road. That is all we are doing. We want control. We also want to have control over the public who may use the road and I am glad the hon. member for Albany sees that the amendment is after all not as undesirable as he thought originally.
I want to suggest to the hon. the Minister a very much simpler amendment which will enable him to bring some clarity in the discussions. I listened very carefully to what the hon. member for Ceres had to say and I agree with him that he read the text of the clause correctly. In other words, he read what was cited in the text, but he did not make any contribution to clarify the extraordinary muddle in which this clause has now been thrown, particularly because of the explanations in the White Paper and by the Minister in his own words. If the hon. the Minister would agree to take out the words from Clause 11 of the Bill, at the end of that particular clause “for use by the public or by any person or”, then we would know what is taking place. Because the object of the amendment is to enable the hon. the Minister to expropriate some land so that he can have access to the Government works. That is all. But the Minister has confused the issue here by introducing the use of such land by the public and so has brought about a clear and definable impression that that land may be used for public purposes. If that is not the intention of the hon. the Minister, if he needs land upon which to build his public works and must expropriate that land—and there is provision for him to do so—and pay compensation, then why does he confuse the issue with regard to other amenities for which he wishes to use the land? If he wishes to provide other amenities and he requires an amendment of the law for that purpose he should come along with a clearly defined amendment which sets out exactly what the hon. the Minister wishes to do and what power he seeks from Parliament. Then Parliament will be in a position to give consideration to the extent of the powers he requires, and to the protection of persons who may be deprived of any of their rights, and also to ensure that the amendment to the legislation will not in any way take advantage or unreasonably interfere with the rights of the public. But to tag these words on to the end of a clause and to leave this extraordinary impression which has caused this clause to be debated for some three or four hours is not the proper way in which to deal with such a complicated and difficult Statute as the Water Act.
We know for instance that there is a very big dam in the Cape known as the Wemmershoek Dam. There is an access road to that dam, which is a private road. If any person wishes to go to the dam in order to inspect the machinery or the spill way or the flora or fauna surrounding the dam, that person can get permission from the local authority. On arrival at the gateway to that access road the permit is presented and, under proper control of that private road that person is then allowed to proceed up that access road to inspect the dam. But according to the explanation in the White Paper the hon. the Minister, in using the words “for the use of the general public”, proceeds further to explain the type of use to which the road will be put, which is obviously for public purposes. There is every justification for this side of the House, when dealing with this type of legislation, and particularly with the rights of persons and the deprivation of those rights as far as the use of water is concerned—which is one of the most valuable resources of this country—to regard that with the utmost caution and with the greatest suspicion in order to protect those persons whose protection is entrusted to members of this House. I only want to say that there is every justification in demanding from the hon. the Minister some clarity. The only way he can bring this about—and I have no doubt that when he discusses this with his officials he will find that it is so—is to take out these words which, for all time, will remain a difficulty. This is the impression that has been left that, (a) the Minister requires an access road so he expropriates and pays compensation. (b) the Minister then wishes to put it to public use. The farmer then thinks to himself “He is using my road for one purpose, now he is going to use it for another purpose, so I am probably going to get compensation again”. But in fact he cannot get compensation for the second use. He will not be getting compensation twice. He will get it once for uses which he himself may not concede. He may have objection, for instance, to that road being used for public purposes. There may be circumstances on his farm which would justify his appearing before the necessary board dealing with the expropriation and objecting to the use of that road as a public road. So if it is required to be used for pubic works—and that is not an abnormal circumstance—then obviously the Minister is entitled to expropriate the land, but only for that purpose. In all expropriation one has to be absolutely clear as to the purpose of the expropriation. One cannot have what the hon. member for Ceres (Mr. Muller) called “’n bykomende doeleinde”. You must have a specific, definite objective and purpose.
I think the hon. the Minister is trying, in his view, to do something useful for the community. With that motive my suggestion to him is that these words should be removed. The same effect will then be obtained in so far as his immediate purpose is concerned, namely, that he will be able to expropriate the land in connection with any Government water works within such Government water controlled area, or to enable him to construct access roads for such Government water works. That should be absolutely sufficient for his purpose. Thereafter, if he wants to allow people to visit the dam or the works which control the waters and the spill ways, or whatever it may be, he, as a private owner, can do so. But he should not turn it into a public road or make it available for public access when the person from whom it is expropriated is left completely unprotected. There is no provision in the Bill that that land shall be expropriated under certain conditions, there is no provision for the fencing of that road, or for any other protection. It leaves the owner of the farm either completely unprotected or unsuspecting of what may happen by virtue of the use of that access road for public purposes.
Far from suggesting that there has been constant repetition of the same argument from this side of the House, I believe the hon. the Minister should realize that there is a real fear of doubt—in fact an unintentional misleading doubt—being left in the mind of the public, and particularly in the mind of the farmer from whom the expropriation takes place. It is in order to meet that difficulty that the hon. the Minister should do what we suggest.
We have listened to some legal arguments from the other side of the House, none of which has assisted the Committee at all. They have explained how the original Act reads, but we all understand that; we have read the original Act. We have read it in conjunction with the amendment, and it is for that reason that we have expressed the serious doubts which we find this Bill will create. Legislation should be clear and explicit and should not be such that will give rise to doubt or give rise to protracted legal action which may involve persons in considerable expenditure of money.
I close with a final appeal to the hon. the Minister to remove these words. If he finds himself unable to do so, I do not think that we on this side of the House would be averse to moving a further amendment to that clause in order to assist him in obtaining the deletion of those words.
I rise merely to indicate that with the leave of the House I wish to withdraw the amendment which I moved at an earlier stage because it is now included in the amendment moved by the hon. member for Heilbron (Mr. Froneman). Prima facie, the addition which is now being included by the hon. member for Heilbron appears to be a good amendment. We shall have a further opportunity of considering it before the Report Stage, but, prima facie, it appears to carry further the principle which has already been accepted by the hon. the Minister.
With leave of the Committee, the amendment proposed by Mr. van Ryneveld was withdrawn.
Amendments to the amendment, proposed by Mr. Froneman, put and agreed to.
Amendment, as amended, put and agreed to.
Clause, as amended, put and the Committee divided:
Ayes—87: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. T.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Wet, C.; Diederichs, N.; Dönges, T. E.; du Pisanie, J.; du Plessis. H. R. H.; du Plessis, P. W.; Erasmus, F. C.; Fouche, J. J. (Sr.); Fouché J. J. (Jr.); Froneman, G. F. van L.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Kotze, G. P.; Kotze, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, D. J.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Scholtz, D. J.; Schoonbee, J. F.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Strydom, G. H. F.; Treurnicht, N. F.; van den Berg, G. P.; van den Berg, M. J.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe. P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Viljoen, M.; Vorster, B. J.; Vosloo, A. H.; Wentzel, J. J.
Tellers: W. H. Faurie and J. von S. von Moltke.
Noes—43: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Bronkhorst, H. J.; Connan, J. M.; Cronje, F. J. C.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Fisher, E. L.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Hughes, T. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Swart, H. G.; van der Byl, P.; van Niekerk, S. M.; van Ryneveld, C. B.; Waterson, S. F.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Clause, as amended, accordingly agreed to.
On Clause 12,
I move the amendment standing in my name—
In line 66, to delete “and”; in line 70, after “Act”, to insert “but subject to the provisions of sub-section (2)bis,”; in line 27, page 6, after “temporary” to insert “increase or”; in lines 29 and 30, page 6, to omit “in order to meet special circumstances” and to substitute “if special circumstances warrant or require it”; in line 32, page 6, after “notice” to add “and”; and to add the following paragraph at the end of the Clause:
(d) by the insertion after sub-section (2) of the following sub-section:
“(2)bis (a) As soon as possible after it has been established for what total quantity of water permits are to be issued under paragraph (b) of subsection (1), the Minister shall—
- (i) determine the total quantity of water to be made available under sub-section (2) for abstraction, impounding, storage or use during any period by all persons who are the owners of riparian land in relation to any public stream or natural channel within the Government water control area in question which can be beneficially irrigated by means of water from that public stream or natural channel and who, but for the provisions of subsection (2), would have been entitled to the use of water from such public stream or natural channel for irrigation purposes on riparian land within such area;
- (ii) determine the formula according to which such quantity of water is to be apportioned between the persons referred to in sub-paragraph (i) either generally or in respect of any portion of the Government water control area in question;
- (iii) determine in respect of every piece of riparian land within the Government water control area in question in relation to which any person referred to in sub-paragraph (i) would, but for the provisions of subsection (2), have been entitled to the use of water from the public stream or natural channel in question for irrigation purposes, the extent of the land comprised therein which can be beneficially irrigated by means of water from such public stream or natural channel.
- (b) The formula determined under sub-paragraph (ii) of paragraph (a) shall provide that the apportionment, in so far as it relates to persons to whom permits have been or are to be issued under paragraph (b) of sub-section (1), shall be made with due regard to the respective quantities of water in respect of which permits have been or are to be issued to such persons under the said paragraph (b)
- (c) Any determination made under this sub-section shall be made known by notice in the Gazette which shall also set out the quantity of water which would be apportioned to each of the persons referred to in sub-paragraph (i) of paragraph (a) if an apportionment were to be made in accordance with such determination and the Minister shall cause to be published in a newspaper circulating in the Government water control area in question a concise notice directing attention to the publication of the notice in the Gazette.
- (d) Any person referred to in sub paragraph (i) of paragraph (a) who is dissatisfied with the determination made under sub-paragraph (iii) of the said paragraph in respect of any piece of land belonging to him or in respect of any piece of land in relation to which he has acquired any rights to the use of water to which the owner of that piece of land may become entitled may within three months after the date of publication of the determination appeal to the water court against the determination made in respect of any such piece of land and the water court may either confirm the determination made made by the Minister in respect thereof or make such other determination in respect thereof as in its opinion the Minister ought to have made.
- (e) When the water court has made a determination in respect of any piece of land which does not correspond with the determination made by the Minister in respect thereof, any apportionment of water previously made to the owner of such piece of land shall lapse and a fresh apportionment based on the water court’s determination shall be made.
- (f) Any permit or notice issued under sub-section (2) before the apportionment in terms of paragraph (e) shall be amended so as to give effect to such apportionment and any permit or notice which is issued under the said sub-section after such apportionment shall give effect thereto.
- (g) If the quantity of water referred to in sub-paragraph (i) of paragraph (a) is not sufficient to give effect to any apportionment made in terms of paragraph (e) the shortage shall be made good from any quantity of water which the Minister has reserved for other purposes.”.
The hon. the Minister has moved an amendment to this clause which takes up on and a half pages of our Order Paper. The clause itself is a very lengthy one and a very involved one. It deals with several points of principle and so, with the ten minutes at my disposal the most I can hope for is to deal with the first point that arises. I shall go as far as I can and I may even reach the second sub-section. I want to commence with Clause 12 (a), which is an amendment to Section 62 of the principal Act. The significance of this amendment is that it fixes a date for certain matters for the consideration of certain interests. It fixes a date which is the date of a proclamation under Section 59. A proclamation under Section 59 is a proclamation of a water control area by the Minister. A water control area is defined in the Act—I do not propose to go over the whole of it now—I think it suffices to say that a number of powers and controls vested in the Minister and his Department come into play immediately that proclamation is issued. That is the general significance of a water control area. Later on in this same Clause 12, there is a provision which I will allude to briefly as being of greater significance. That is paragraph (a) of subsection (c) which says—
and then there is an amendment which does not matter for the moment—
Here is a most significant provision. Under Section 69 a proclamation is issued setting up a water control area. At that moment of time no one in the area so proclaimed can even use any of the water except under a permit granted by the Minister and subject to certain conditions which are set out. It does not matter that the person in that water control area is a riparian owner and has riparian rights. Those persons are divested of those rights and the control and use of the water is vested in the Minister. One may say that subject to certain very wide powers, they are at his sole disposition. The use of that water is at the sole disposition of the Minister once the proclamation is issued.
I then want to come back to the question of the issue of that proclamation as set out in Clause 12 (a). It says this—
How does that read when applied to the Act? It reads in this manner—
There you have the case of the first man who is entitled to a permit. He is entitled to a permit for the use of a volume of water which is determined for him as being the amount which he was lawfully abstracting, impounding or storing—in terms of the amendment—at the date of the publication of the relevant proclamation. That was not the law until this Bill came before us. The law until now has been that he was entitled to a permit—and I now quote from the Act—
That he “has been”. “Has been” is now changed to read “was … at the date of the proclamation”.
Mr. Chairman, if you consider for a moment as a practical man the precise nature of that difference, it is considerable. It has been held by the legal pundits that the amount of water that he has been abstracting might well be an average over the past 12 months. A court, applying its mind to find out what is the amount of water that a man has been using or impounding or abstracting, might well be the average over 12 months. It might be an average over a greater period if a case could be made to that effect. But the case to be made might well be that in the last 12 months there was an undue drought which has so affected the stream concerned, that, indeed, there was no water. We all know of cases of that kind, and here we are dealing with normal flow. We are not dealing with surplus water, we are dealing with normal flow. And normal flow is, in terms of South Africa, something which on occasion completely disappears.
So has the Minister.
I know, it makes it a bit difficult. Mr. Chairman, I am sorry but I am in trouble. I am trying to address myself to the hon. the Minister but his attitude makes it very, very difficult.
It is sheer discourtesy.
My plea does not fall on deaf ears, it falls on another part of the hon. the Minister’s anatomy, and I am afraid that that part is equally deaf. This is a very difficult Bill and it is a very involved Bill. It is extremely difficult to try and present a case which, I hope, is going to carry the touch of sincerity, when we have to do it in these circumstances. [Interjections.] I know that hon. members on that side of the House are not interested in the matter. I wish they would go and have their coffee and leave us to carry on with the debate. This is the most important issue in South Africa, with all due respect to the various racial conflagrations that are blowing up. If we have no water we have no people in South Africa, whether they be black, white or green. This is the basis of wealth in this country, the basis of life to the country and we are trying to deal with it in a serious way.
I was dealing with the question of what is being abstracted. That is the law to-day, that you are entitled, of right to have a permit from the Minister when a water control area has been proclaimed, for the amount of water which you have been abstracting. And the words “have been abstracting” may mean that you have been abstracting an average quantity over one year or two years or even longer. The court itself will determine what is the reasonable basis on which to decide what you have been abstracting as a norm. And whatever the norm is in the opinion of the court—the norm in relation to normal flow, not surplus water—in terms of that norm you are are entitled to a permit from the Minister. But the proposal now being made by the hon. the Minister completely changes that. The Minister now says, “You will be entitled only to the water which you were abstracting at the date of publication of the proclamation setting up a water control area”. In the light of misunderstanding that have taken place as reflected in the debate up to now, let me refer at once to the White Paper, because I do find that hon. members opposite are not quoting the White Paper. They had the White Paper six weeks before we got it, as I pointed out in my second reading speech. But the White Paper is before us and it means something. It has been prepared by the Department and presumably the Minister approves of it. The views on the White Paper must be the Minister’s views. Now let us see what the White Paper says—
The words “as was the intention” are quite superfluous. The department should not tell Parliament that that was the intention. It was not the intention. I was a member of the Select Committee. The intention was that the norm should be the basis on which a man should claim a permit from the Minister to allow him to carry on his farming operations. It says that at the date the proclamation is issued …
At which date?
The date of the issue of the proclamation. That is what the law says. [Time limit.]
Mr. Chairman, I shall leave the point raised by the hon. member for Durban (South Coast) (Mr. Mitchell) because I want to raise another point in relation to the same clause, a point which flows from the amendment in the Bill. I refer not to the further amendment but the original amendment proposed by the hon. the Minister. The hon. the Minister has said quite clearly during the debate that his object is to protect existing rights. As the amendment to Clause 12 (b) now reads it appears that a person who is actually using surplus water may lose his right to that surplus water. From now on his use of it becomes subject to a permit granted by the Minister. I do not think that that is the intention of the hon. the Minister, and I hope he will listen to the case that I am making in case a mistake has in fact occurred.
As the hon. the Minister may remember, at various stages during this debate he has stressed that there is no intention to interfere with existing rights, that is, the right of an owner of land to continue to use water which he is actually using now and was using at the date of the proclamation. However, it seems that the effect of the amendment in the Bill will be to interfere with his right to surplus water. I am referring to Clause 12 (b) of this Bill, which proposes to add at the end of sub-section 1 a new paragraph (d). That paragraph reads—
and then there are two criteria. I wonder if the Minister is following this point? Section 62 (1) deals with the control and use of public water in a Government water-controlled area. It says that if any person in such an area is abstracting or impounding water, he must do various things. He must inform the Department of the amount of water he is taking out. In paragraph (b) it says that any such person will be entitled to a permit from the Minister. The object now is to qualify paragraph (b) by the new paragraph (d) which is inserted by the amending Bill. It says that for the purposes of paragraph (b) any person shall be deemed to have been lawfully abstracting or impounding and storing water in so far as that quantity of water which he has been abstracting or impounding does not exceed (i) any quantity which may have been apportioned to him under any order or award of the Water Court, and (ii) where no such order or award is in force, the quantity of water which in the opinion of the Minister would have been apportioned to that person if apportionment could have been made by the Water Court. Both (i) and (ii) deal with apportionment by a court, and that can only refer to normal flow. It does not deal with surplus water. Now the Minister is in effect saying that one is only entitled as of right to the amount of water one is using, which shall not exceed (i) and (ii) of paragraph (d), which only refers to normal flow. So the effect of (d) is to lay down that even where one previously used surplus water one is no longer entitled to it as of right but must get a permit for it from the Minister. That appears to be the clear intention of the amendment. I do not think that was what was intended by the Minister. He has continually laid stress on the fact that existing rights must be protected and that where a person is using water—and I assume by that that he meant both normal flow and surplus water—his rights would not be interfered with and he should be protected and be entitled to a permit, but that further water should be apportioned in terms of the amendment.
Would the Water Court have taken surplus water into account, or only the normal flow?
The court would only have apportioned the normal flow. They would only have taken away the surplus water from the owner of the land if he was taking more than he could beneficially use.
The Act says I must do what the court would have done.
Yes, but that would not have been done on apportionment. An application might have been brought to regulate the use of surplus water, but it would not have been done on apportionment. It is only the amount which the Water Court would have given on apportionment which is now being allowed as of right under paragraph (d) (i) and (ii). Admittedly the Water Court could previously have taken surplus water away from an owner if he was using more than he could beneficially use but it would not have happened on apportionment, and similarly the Minister has not the right to take it away or to regulate it on apportionment. Therefore the effect of (d) is to limit the person’s right to continue to use water to normal flow. If the Minister does not agree with that I shall be very glad to hear the argument he advances as to why that is not the interpretation of (d) (i). I shall leave it there until some further light has been thrown on the legal effect of this paragraph. Perhaps the Minister will indicate that it is not his intention to interfere with surplus water which is being used by an owner of land at the time of the proclamation and that he should retain the right to use that surplus water provided he does not take more than he can beneficially use.
Not only that, but provided also that he is not using more than he is has a theoretical right to use.
Yes, I accept that qualification but he cannot abstract even surplus water in excess of the amount allowed by Section 10. Provided he is not taking more than he can beneficially use, I say he should retain his right to surplus water. He should be entitled to a permit as of right. If the Minister will say that that is the intention, the further point as to whether his amendment achieves that can then be considered. [Time limit.]
This Clause 12 is certainly the most complicated of those we have discussed hitherto and it is also wide in its scope. In the section, read with Section 60 of the Act, provision is made for two types of apportionment. In the first place provision is made for those people who have already abstracted water from a public stream in the past and who can then in terms of a proclamation make application for the issuing of a permit to them in respect of that right. In those cases there is also a right of appeal under the present sub-section (8) of Section 60 of the Act, which allows such persons to go to the court if they are not satisfied with the apportionment. We now have this new amendment to Section 60 (1) which lays down a formula in accordance with which a maximum apportionment can be made to such persons. This is the question which the hon. member for East London (North) (Mr. van Ryneveld) discussed and about which I also want to say a few words. I must admit that this is rather complicated, but it is most important because I should like to bring this point to the notice of the Minister, particularly in view of the fact that I think it is not his intention nor that of his Department to introduce such a provision into the legislation, but that it is only by implication that people will be deprived of rights which they would otherwise have had. Before dealing with this point, I should like first to proceed to discuss the further amendments to Section 12. This relates to the second type of apportionment, that is to say of that portion of the water which had not previously been used by such persons; in other words, if people have not abstracted water in the past. The Minister finds that there is more water available for apportionment, he can apportion such water amongst the riparian owners and he can also take the water for use on non-riparian land. I do not want to discuss the question of non-riparian land at this stage, because this is a matter on its own and it will take up too much of my time. But as far as the apportionment of water for use on riparian land is concerned, we have objected to the fact that a basis is not being laid down in accordance with which such apportionment must take place and that these people are not being given a right of appeal either. The Minister has now moved certain amendments which appear on page 699 which lay down how the apportionment is to be effected, that the Minister must lay down a formula and that in accordance with that formula the additional water can be apportioned amongst the people concerned and they will have a right of appeal if they are not satisfied. As regards this right of appeal, I just want to say that as this amendment stands, it goes far towards meeting the objections we made at the second reading, but it is nevertheless a very limited right of appeal. The right of appeal which these people are being given is only represented by the provision contained in sub-section (2)bis (a) (iii), that is to say the extent of the land comprised therein. It is in respect of those words that there is a right of appeal because sub-section (2)bis (d) says “any person referred to in sub-paragraph (i) of para. (a) who is dissatisfied with the determination made under sub-para. (iii) of the said paragraph …” In other words. the right of appeal relates only to sub-para. (iii) and not to the formula which the Minister may lay down. I do not object to that so much, but I want to ask the Minister that it must be quite clearly understood that this right of appeal does not only relate to the apportionment of normal flow, but that this right of appeal should also be regarded as relating to the apportionment of surplus water; because I do not think it is the intention that when such surplus water is available, not only normal flow but also surplus water, should be affected. That is all I want to say as regards the second portion.
Now, as regards the first portion which the hon. member for East London (North) has also discussed, I want to bring to the notice of the Minister that as a basis is now being laid down in Section 60 (1), namely that no one can obtain more water than the court would have given him—I should like to read the paragraph as it stands here—
Which the court would have apportioned to him on apportioning the water. Section 9 of the principal Act lays down that every person who owns land riparian to a public stream is entitled to a reasonable share of the normal flow of that stream. That is the provision which relates to the share of the normal flow of the river, and it is a reasonable share. Section 10 deals with the claim which a person can make on surplus water. Anyone can go to the courts and ask for an apportionment of the normal flow of the stream and when one reads Section 52, one sees the circumstances which the court must take into account when it has to apportion the normal flow. Taking all this into account, it is quite clear that the court can only apportion the normal flow and not surplus water. The highest owner is entitled to take as much of the surplus water as he can economically use and without wastage, and after him the next man can take the same quantity. Surplus water, as our law stands to-day, cannot be apportioned—only normal flow can be apportioned. I want to give the Minister a practical example. It may be that a person who owns land along a stream in a Government water control area does not only abstract his portion of the normal flow, but also a portion of the surplus water. If that is the position, I should like to ask the Minister whether he intends depriving such a person of the surplus water which he formerly abstracted, or whether he wishes to entrench that right so that such a person will not only be able to abstract his share of the normal flow in future but will also be able to continue taking out as much surplus water as he had taken out previously? If that is the Minister’s intention, this basis which is being laid down will frustrate that intention because he is now saying that a formula will be laid down and that no one can take more water than the court would have apportioned to him in apportioning the water, but it is only normal flow which would be apportioned. In other words, no one can take surplus water, even if he did so before. This surplus water will now be taken from such a person and will have to be dealt with in accordance with the second portion of Section 60 under which the Minister can make a further apportionment. I am sorry that we did not see this before; otherwise I would have certainly argued the point at the second reading, but it is very drastic and calls for the consideration of the Minister. [Time limit.]
When my time expired I was dealing with Clause 12 (a) and I want to come back to the question of the proclamation date of a water control area, when so many of the other provisions of the Act come into operation. The matter I want to discuss is the right of an irrigator to get from the Minister a permit entitling him as of right to abstract or impound water which he has been abstracting and impounding in the past. That is the law; this Bill now proposes to change it. Provision is made here that he shall only be entitled as of right to get from the Minister a permit to allow him to abstract or impound water which he was taking at the date of the publication of the proclamation—on that day. and not an average for the past few years. Here I want to come to this matter of control. There is the aspect of droughts and the particular time of the year. We know that for purposes of irrigation there are periods of the year when you use a lot of water because your crops are growing. Then at a different time of the year you use very little or none at all, and then you have the drought years when the river ceases to flow, or there is very little water. Through chance or fate or the operation of the departmental machinery, at that moment the President signs the proclamation on the recommendation of the Minister and that is the date of the proclamation, and it is the amount of water that the irrigator is taking on that date which is the amount of water he is now entitled to get a permit for. The White Paper makes it abundantly clear that this is the intention of the clause. We must not pay any attention at all to statements that I hear so frequently from hon. members opposite that the Minister says he will do this, that or the other, and the Minister will be most lenient and objective and generous. Sir, that literally produces no water. It is what is in the Act which matters, and the Act says that the water being used at that date and that alone is the amount for which he can obtain a permit. In other words, if because of drought there is no water, then the irrigator cannot get a permit for any water at all as of right; he can ask the Minister for it, but that is something different altogether. If it happens to be a time of the year when he is using very little water he can only by right get that amount of water which he was using on that particular day. We consider that is most unfair. Again we are not moving amendments, where a matter is so palpably unfair in comparison with the principal Act. That provision was not put in the Act by chance. It was to give the irrigator a chance to get an average, for the purpose of assessing the amount of water to which he is entitled by permit from the Minister. Now he loses that right; he gets no water at all by right under these circumstances.
Now I want to move on to the next subsection and to point out that this whole section deals with irrigation. The amendment which the Minister moved makes it quite clear, not only as the hon. member for East London (North) pointed out, that we are dealing here with normal flow, but if you read 2bis (1), the amendment now moved by the Minister, you will see, Sir, that the Minister has to determine the total quantity of water available during any period to all persons who are the owners of riparian land. And then it goes on to say that in a water control area there is the question of how much can be beneficially used. Apart from our strong objection to the date of the proclamation being the date for fixing the amount of water which can be obtained by permit, our next point is this, that in view of Clause 10 which was passed yesterday where the Minister is proclaiming a water control area, he can in that area proclaim non-riparian land—is there not a conflict here? In terms of the amendment he moves now the people who are entitled to apportionment are the owners of riparian land. Nobody else is entitled to apportionment and the apportionment is of the normal flow, and it is quite clear that to determine the quantity of water to divide it up by the Minister amongst all the irrigators, he has to find the people who are the owners of riparian land. I suggest that the Minister should go into this point because the question raised yesterday about the inclusion of non-riparian land may be in conflict with the principle here. I deal with that in passing because I want to come on to (d) (ii) where the conditions are laid down under which the lawful abstraction or impounding of water can be determined for certain categories of people, those who have been lawfully doing it, and it appears that it is the quantity which would have been apportioned by the Water Court, under (i), or under (ii), where there is no such apportionment by the Water Court, the quantity which the Minister would have apportioned to that person if an apportionment could have been made by the Water Court. Here we hold that that means an apportionment of the normal flow. One object of the Select Committee was to take away pressure from the Minister, to lift him out of the position where a group of people could bring pressure to bear upon him as an individual because he holds their destiny in his hands. The amount of water for which the Minister gives a permit may make all the difference to their farming activities, and we know how strong that pressure can be. Political pressure can be very severe in South Africa. In this clause the Minister puts himself up as the target for that very pressure which we designed the Bill to exclude him from. That Minister said last night he did not want further powers and he was sorry that further powers were being forced upon him. I think the Minister should weep at having this power thrust upon him, because whatever tribunal or body should be set up for the purpose of deciding what permit should be issued, because they have to deal with the allocation of the normal flow, that body ought to be anyone except the Minister. Talk as we will around it, it is the Act which prevails and the Act says the Minister is responsible, and therefore he will have to take the responsibility in regard to that matter. I realize that with the development of irrigation schemes in South Africa to-day how the pressure on the Minister will grow and continue to grow. I suggest that in no circumstances should he be the person who has to take the knock by having to decide what in his opinion would have been apportioned if the Water Court had given the judgment. [Time limit.]
I particularly want to stress the point of the riparian owner and his rights. I did so deliberately yesterday when we discussed Clause 10, because Clause 10, which amends Section 59 of the Act, ties in with Clause 12, which amends Section 62, viz. the apportionment of water I said then that where the Government proclaims an area—and I gave an instance to which I will come back, and I am dealing with normal flow and not surplus water—where the Minister takes those powers under Clause 10, even the provisions of Clause 12 do not prevail against his apportionment. He can apportion that water according to his own opinion. It says “in the opinion of the Minister”. Now I come to the question of riparian rights under these two clauses. Where a man says he has been extracting so much water and he gets a permit, there is nothing in the Act which forces the Minister to allow him to go on taking water for all time. The Minister can reconsider the whole position and can give a re-apportionment both under Clause 10 and under Clause 12. What did the Minister do in regard to the Blyde River scheme? I want to quote it because it has a definite bearing on this clause. In regard to the Blyde River, which is a private irrigation scheme, they make this point—
That is the point. It did not matter what quantity they had been irrigating; it had now been decided that they could make a living on 30 morgen—
That statement is made by the irrigators, and under this clause, combined with Clause 10, amending Section 59, the Minister can make that apportionment, and this will give him the power to do so. I am quite sure that when he applied that measure he did not have the law behind him. But what irrigator who is irrigating a small plot can afford to fight the Government in a water court? One of the main matters that we discussed in relation to these two sections of the Water Act, when that Bill came before the Select Committee, was how to protect the man with riparian rights from having to go to the Water Court to get an apportionment of water and to fight for his rights. I know that the Minister in his second reading speech, as well as one or two speakers on that side in the course of the debate, said that there was provision under Section 62 for an irrigator who is not satisfied with the apportionment of water to go to a Water Court for a determination. But what irrigator who owns about 50 or 100 morgen of land can afford to go and fight the Government after the Government has proclaimed an area? But with this Clause 12, together with Clause 10, which has already been passed, what hope has he got of succeeding in a Water Court? He would be just throwing good money after bad when the Minister has proclaimed the area and has surveyed the water supplies. Under Clause 10, where he takes in non-riparian land into his scheme of apportionment, that riparian owner must lose his rights if there is a shortage of water. He may get a fair apportionment when the stream is in full flow. As we see it, the apportionment should be on the normal flow over a period of months or years, but there are times when that flow is quite unable to supply those already using the stream, because of drought. But how much more is the man going to suffer if the hon. the Minister, having pooled all the area, non-riparian land as well as riparian land, makes an apportionment to those individuals? Because then they all lose pro rata and those people who had their rights infringed under the provisions of Clause 12 are going to suffer very heavily indeed. First of all, the man has been cut down on the number of morgen that he is allowed to irrigate, for which he is to be given full supply. The amount of water apportioned to him had already been cut down and he will be suffering hardship and financial loss, but on top of that, when there is a shortage of water and that apportionment is then cut down pro rata—and the Minister has the power here under any special circumstances to apportion a smaller amount than that permit gives him because of difficulty in supplying that apportionment—then these people suffer still more. This is definitely interfering with the rights of these people. I say that these two clauses have to be read together to realize the serious position in which these people can be placed. I quoted this memorandum at length when the Minister’s Vote was before the House so that he could reply to the points made, because I foresaw these amendments to the Water Act coming before us and I was very worried and I wanted to give the Minister an opportunity to answer the statements made by the irrigators of the Blyde River area. I put questions on the Order Paper but I have had no satisfactory reply to any of them. These people are definitely suffering. If that type of apportionment and control of water supplies in the water control areas is going to take place, then our irrigators are going to suffer great hardship and financial loss, and I ask the Minister to give us a full statement as to the implication of this amendment of Section 62, and to tell us if that does not also come under his re-apportionment of water under Section 59, as amended by Clause 10, because it has a very important bearing on this issue. [Time limit.]
I do not profess to be an expert on irigation matters, but there is one particular aspect of this clause that does concern me quite considerably and it follows very largely on two points made by the hon. member for South Coast (Mr. Mitchell).
I will alter the first; so you need not talk about that.
The first point that the hon. member for South Coast made was that we should take what we see in the Bill, and the second one was this very important point of the date on which the allocation of water is made. If you take these facts into consideration, the picture that you have here, it seems to me, is that under the provisions of this clause the Minister can actually create water, that he can make water for himself. Let me give an example to him. Assuming that an industry came to the Minister and said that it wanted to establish itself in a particular area for certain reasons. The Minister then asks that industry, “What are your water requirements?” Let us assume that those requirements of water are large, the Minister would then say “I have not got so much water; you cannot establish yourself in that particular area”. But under Clause 10, combined with Clause 12, the hon. the Minister can pick on a particular water area in that district and proclaim it a water control district at any time it suits him. I am taking what is stated in the Bill; I am not ascribing any bad intentions to the Minister now. He can then take the particular stream which is suitable; during a period of drought he can allocate the water on the day on which he proclaims that area and divide what is there between the riparian owners; and when the flow of the river comes back to normal he obviously has quite an excessive amount of water and under Clause 10 (1) (b) he can take that water away from that river into some area to give it to an industry or to any other type of user. Sir, I wondered what the intention was in altering 10 (1) (b) in this manner. This clause makes it clear. The previous 10 (1) (b) made it clear that he could only proclaim the area for the use of the people who were then beneficially using the water, but that provision has now gone. He has not got to apply the water that he now takes over to the beneficial use of the people who were using it before the Minister appeared on the scene. He can apportion that water as he likes because all the water vests in the Minister on the day of proclamation. He can then allocate that water according to the flow at that time and take any excess water right out of that water control area; he can take it right away from the riparian region that it is supposed to serve and supply it to an industry or to irrigation land in a different area altogether if it suits him to do so. I think it is quite alarming that the Minister should be given powers to come and disturb an area where people have enjoyed riparian rights for years. Now suddenly, because of the request of somebody else for water that does not exist, the Minister can come to that peaceful area, where people have been carrying on their farming activities for years and create water for an industry or any other organization. That is what this clause, combined with Clause 10, actually empowers the Minister to do.
The other aspect of this clause that I do not like is the way that the Minister now has the right to allocate water amongst various classes of farmers. In other words, according to this section, if I read it correctly, the Minister can decide which crops can become irrigated and which types of crops shall not. He can decide which type of user is entitled to water and which type of user is not, or he can alter the balance between those types according to his own particular decision when he makes that a water control area. I believe that the farmers will not like this clause, when it is coupled up with Clause 10, and that is why the hon. member for South Coast leans towards the idea that this Bill smacks of a hybrid Bill. I will ask the Minister to deal with that particular aspect, because I think it is one that is going to worry a lot of farmers in South Africa when their particular area is proclaimed a water control area.
Although I can advance adequate grounds as to why the hon. member for South Coast (Mr. Mitchell) need not be afraid because we are now laying down clearly when control in a water control area takes effect, I want to meet him by moving that the words “or prior to” be inserted after the word “at” in the fourth line of Clause 12 (a). That should meet the whole objection to the effect that a person may have used more water than on the date of proclamation. The hon. member’s objection was that a person might not have used any water on the date of proclamation. As a result of this proposed amendment it should be clear that he will be entitled to all the water which he was using lawfully prior to that date. Then I just want to direct the attention of the hon. member for Pietermaritzburg District (Capt. Henwood) as well as the hon. member for Umlazi (Mr. H. Lewis) to Section 62 (b) of the principal Act, which is not being amended and which provides as follows—
In reply to a question put to me by the hon. member for Ceres (Mr. Muller) and other points which other hon. members have raised, I just want to explain briefly how these matters are arranged under the Act, and in my opinion this is the only practical method. The Act unfortunately does not provide anywhere, but leaves it to the discretion of the Minister, how water should be apportioned to riparian owners who have not yet exercised their rights of abstraction or their rights of riparian ownership, but it definitely lays down in the section which I have quoted that the Minister is obliged to enable people who have in fact used water beneficially, to continue abstracting water as they have in the past. In many cases a water court has apportioned that water, but in the case of almost all land situated along the streams of our country, development has taken place gradually and along natural lines without an order being obtained from the water court apportioning the water of such a stream. But this did not represent unlawful use because the people had rights of riparian ownership and they used the water. We now have a formula which we lay down when we declare an area a Government water control area. When we have determined the strength of the flow in the stream, the water of which we are to apportion, and how much water we have available for riparian owners and what the irrigation potentialities are, we ask ourselves how much water the existing irrigators of that area are already using. The water which they are using is first deducted in order, in compliance with the requirements of the Act, to make provision for their lawful use of the water which they were already using beneficially prior to the date of proclamation. When provision has been made for that water, then we may have a certain amount of the normal flow left over—and that is the only water to which these people had and have a right—and I am now replying to the hon. member for Ceres. All that I am concerned with initially, when a Government water control area is declared, is to grant to the riparian owners those water rights to which they would have been entitled if a water court had carried out the apportionment. When one has granted the rights of abstraction to those people who were already exercising such rights—not merely to the extent of 30 morgen, as the hon. member for Pietermaritzburg probably thinks, but in respect of their full development, within the limits of their theoretical rights—and they are theoretically entitled to that quantity of water which they could abstract in relation to the total irrigable areas in that area—that is the maximum amount—which a water court would have given them. In other words, in the case of the Blyde River, if there were people who had developed 50-60-70 morgen beneficially, then they were given sufficient water for that development. But there still remains a large area, perhaps far more than that which has already been developed, where the people are riparian owners, where they have irrigable land but in respect of which they have never used their rights; where they have not yet abstracted water from the river for irrigation purposes. Under the old Act it was left to the Minister’s discretion to apportion the water amongst them on a fair basis. In these amendments as printed, I make provision that I shall not only use my discretion but that I shall lay down a fair formula so that we shall not be afraid to make the formula on the basis of which we apportion water, known to the people concerned so that they will be able to judge whether the Minister has perhaps used his powers arbitrarily or whether he has really done justice to them and has treated everyone equally. We are saying here that what must be determined is the quantity of water which he must make available to the riparian owners for irrigation purposes, then the formula on the basis of which this water is apportioned, then the total area of irrigable land on each property within the limits of such heights and distances as the formula lays down, and then the number of morgen feet of water which is to be apportioned in respect of each property.
If I give one man five morgen feet of water per annum and another 12 morgen feet, then he will be in a position to go to the court and say: The Minister has discriminated against me; I have not been treated fairly. When one has determined these factors, then one starts apportioning the water—and this only relates to people who have never irrigated but who are in fact riparian owners. As far as surplus water is concerned, I said last night that there were two ways in which one could make surplus water available to the people concerned. The one is to lay down a very short period during the year during which water is guaranteed. because the shorter one makes it, the more flood water will become available; in other words, the greater the quantity of surplus water which is taken into account. The longer the period, the more surplus water one includes, but the more permanent flow one has. Most farmers prefer—and I grew up under such circumstances and I still farm to-day under such circumstances—to have greater rights of abstraction from a water source, even if they know that those abstraction rights can only be exercised for, let us say, four months to the full extent and thereafter proportionately less. I prefer that to having the right to abstract far less water and consequently to have less morgen under irrigation, but more under permanent irrigation, because I can then practise extensive irrigation and I shall waste less water and I shall have greater scope for development. That is the one way in which surplus water can be provided to such people. The other way is, when one has apportioned the normal flow, to give them the right under a second class permit to abstract surplus water which is additional to that which has been apportioned. But I think the intention of the law advisers, of the Select Committee and of Parliament when the Act was amended in 1956 was that the State should actually take control over surplus waters and should be able to decide in the best interests of the country how it wishes to apportion those waters and where such water should be used. It would be foolish to give all the surplus water to riparian owners by means of permits, even if there is irrigable land on which it can be used within a specific Government water control area because one may find that it is in the interests of the country rather to establish large State settlements instead of giving the water to individual owners; to buy up irrigation land inside and outside the area and to establish a large number of people on that land, as has been done at Vaalharts and elsewhere and thereby to establish a State settlement. But if one gives all the water away before one constructs the Government dam, then one no longer has the right to that water because one has already given that right to other people.
In regard to the surplus water which is being used at present, what is the position there? Are you prepared to give a permit as of right to a person to continue using surplus water which he is using at the date of the proclamation.
I was under the impression that I had replied to that question when I said at the beginning of my speech that all irrigation development that had taken place would not only be respected but that where a person could prove that he used a certain amount of water before the date of proclamation, he would be given a permit to use that quantity.
The Act does not make that clear. I do not think the Act achieves that at all.
No, but I think the extraction of water referred to in Section 62 (b) may also refer to surplus water under certain specific circumstances because, as I have said it is one thing to determine the normal flow of a river. You have scope in determining the normal flow by simply diminishing or increasing your permanent factor of your supply factor over the area —whether it is a four-months permanent factor or a six-months or eight-months permanent factor. You can make provision for the cases referred to by lowering the permanent factor to, say 40 per cent but then you include more surplus water in the normal flow which you use for apportionment.
Can the Water Court do that in terms of the new (b) (i)?
No, the Water Court won’t do it.
But then the hon. the Minister has not got the right to do it either.
The Water Court may even do it; I do not know. I do not know what formula the Water Court uses when it decides on the normal flow, because nowhere have I seen “normal flow” described in such a way that it is within certain limits and bounds; so even the Water Court may decide on a permanent factor of 40 per cent or 50 per cent in one case and in another case they may decide on a permanent factor of 60 per cent. I don’t know what they will do. I cannot speak for them. But surplus water is only apportioned to people under the present regime now by way of a second permit. Because once you have given a person a permit to extract water from a river, he must realize that he must use it beneficially, and if he uses it beneficially, he is developing his land. And do you think that after you have allowed him to develop his land under that permit for say two years, four years, six years, 20 years, as the case may be, and the Government comes along and builds a state scheme, the Government can now tell him: Well, I have given you a second permit, but I am going to take that back from you because I want to use the water for other purposes and give it to somebody else? That is the reason why, in the practical application of the Act one must be very careful not to give water away which afterwards the State might find could be more beneficially used if given to industry or for any other purpose which you can think of. Therefore the State must keep in hand and hold back a certain percentage of the surplus water in any big water resource for the use of the State; because for the beneficial use of that water the State will have to spend money, the State will have to build schemes, and in that case I think it is right that the State should have the right of distributing that water and allocating it according to the best interests of the country to those interests which can use it most economically. I just want to move—
In regard to the point which I raised, namely the protection of an owner’s right to surplus water which he is using already at the date of proclamation, it is clear from what the hon. the Minister has said that he does not intend to take away that right, and the only difference of opinion between the hon. the Minister and myself is therefore whether his object is achieved by his amendment.
The difficulty lies in the definition of “surplus water”.
That may be the difficulty, but the difference between us amounts to this: that the hon. the Minister thinks that the Act together with the amendment in the Bill is protecting the right of the owner to the use of the surplus water which he was using at the time of the proclamation of a water control area, and I do not believe that the Act together with the amending Bill protects that right. I do not intend to move an amendment now, but as we shall have to consider the amendment moved by the hon. the Minister at the Report Stage, between now and then I shall draft an amendment which I think will meet the case, and I shall discuss it with the department and I hope the hon. the Minister will be prepared to accept the amendment in advance before we reach the Report Stage.
You are welcome to discuss it with me as well.
Yes, I do not think the amending Bill at present safeguards those rights.
There is one other point that I wish to refer to briefly. It has already been raised by the hon. member for Ceres (Mr. Muller) and that is the right of appeal from a decision of the hon. the Minister in terms of the suggested sub-section (2)bis. The hon. Minister has to determine three things which are set out: The total quantity of water to be made available; the formula according to which such quantity of water is to be apportioned; and in respect of every piece of riparian land the extent of land comprised therein which can be beneficially irrigated. It is only the third factor which is subject to appeal. The actual formula used (covered by sub-paragraph (2)) is not subject to the right of appeal.
I do not want to make the formula subject to the right of appeal. If the state has to exercise control, then naturally it is the prerogative of the state to lay down the formula on which it is going to exercise its control, and after that formula has been laid down, there is an appeal to the courts because the state did not treat them justly according to the formula laid down. But if I have to submit the formula as well to the control of the courts, then the state has not got control, but the court has control. That would be directly in conflict with the main Act of 1956.
I would like to take the matter a little further. Can the hon. the Minister indicate what factors he wishes to take into account which the Water Court on appeal would not take into account? Is he suggesting for instance that in the public interest he may wish to divert a certain amount of water to interests which the water court would not be aware of? Is that the kind of consideration which the hon. the Minister wants to introduce into the formula which the Water Court would not be aware of?
I may want to take water from one catchment area right to another catchment area. For instance to supply the needs of the hon. member for Albany (Mr. Bowker) and others in the Eastern Cape from the Orange River for instance. To mention only one case. You may want to do that. Factories may be established not within the water control area but in another catchment area, without water being available nearby. So all the water in this catchment control area is not really there for irrigation only. It may have to be used for mining purposes, for the Railways, for other interests to the benefit of the country, and it is in those cases where a water court will have nothing to do with such considerations. They would be considering the interests of the control area only.
I am not quite sure whether the hon. the Minister has grasped the point which the hon. member for East London (North) (Mr. van Ryneveld) wanted to make. It relates to surplus water in a controlled area. I want to give an example: The hon. member for Krugersdorp has a fine dam in the Modder River in which he only stores surplus water. He does not use the normal flow at all. As a matter of fact there is no normal flow in that river. He only uses surplus water. Let us assume that the Minister wishes to construct a large government dam lower down the river. He declares that area to be a water control area and he says that the hon. member for Krugersdorp may no longer irrigate from his dam at all because the Minister has the sole right to all the surplus water. Nor can he in terms of the amendment apportion water to he hon. member for Krugersdorp because the amendment reads as follows—
A water court does not apportion surplus water. It can only apportion the normal flow. We then come to the second paragraph which says—
Consequently, as this amendment stands, the Minister is in any case depriving that person of the right to use such surplus water and the Minister himself can no longer make an apportionment under this amendment. Only in those cases where the water court has made an apportionment or would have done so, can the Minister act, and the water court can only apportion water when there is a normal flow. Consequently the hon. member for Krugersdorp who has built his dam for £30,000 or £50,000 will have spent a vast sum of money in order to be able to utilize surplus water and it will now be of no use to him. That whole dam becomes worthless. It is not the Minister’s intention. He said so himself. His intention is not to encroach upon the rights of such a person. But this amendment does not give effect to his intention, and I should like to make an appeal to the Minister to have this amendment worded in such a way that it will in fact take into account persons who have developed the use of their surplus water in a Government water control area.
If this clause is adopted, I am prepared to give close attention to this matter and I can then if necessary move an amendment in the Senate or here at the Report Stage, if necessary.
No, we must do it here.
Then I move—
On Clause 13,
In regard to Clause 13 the Minister’s memorandum says—
Mr. Chairman, the amendment to this clause, as I understand it, contemplated making provision for organizations such as regional water corporations which have been set up in the province of Natal where the specific powers were given by the Provincial Council to establish regional water corporations. They were established many years ago when the present hon. member for Natal (South Coast) (Mr. Mitchell) was a member of the Executive Committee in Natal, and these water corporations generally supply water not only to municipalities but in some cases for agricultural use and also to industries. I would like to know from the hon. the Minister the extent to which this will restrict the regional water corporations and whether these regional water corporations will be allowed to continue to function for the distribution of water, or whether as a result of this provision the water corporations will also be controlled. The principal Act in Section 63 provides for the determination of areas to be irrigated from Government water works, and in defining “water areas” it says in paragraph (11)—
I should like to know from the hon. the Minister whether he intends to include regional water corporations under this contemplated amendment?
The intention of this amendment is merely to exclude municipalities and other public bodies, the function of which it actually is or under the jurisdiction of which certain urban areas or townships may fall, from the provisions of the Water Act relating to Government water works. The intention of the State in this regard is as follows: We want to provide water from Government schemes to local authorities, but we want to do so at a certain point where they receive that water, and they can then take the water through their pipelines into their own areas and they can distribute that water as they have always done in the past. We have nothing to do with the distribution and the apportionment of that water. All we are concerned with is the supplying of so much water per day to them in their pipes at such economic price as may be agreed upon. That is all this amendment provides for because as the law now stands it is not quite clear. Allow me to give an example. There is for example the dam being constructed at Mid-Mar. From it Durban, Pietermaritzburg and possibly other places will be supplied with water. It is a Government scheme. As the law now stands, the law advisers say that it is not clear whether we should undertake the distribution in Durban or in Pietermaritzburg and elsewhere if we take the water from the Government water scheme. We require this amendment to make it quite clear that the Government is not responsible for the distribution of the water. We shall supply the water to the local authorities at a certain point.
Yes, in bulk. Then they will distribute it as they have done in the past.
It is the Mid-Mar scheme particularly that I had in mind and I am glad the hon. the Minister has mentioned it. Under the proposed Mid-Mar scheme, which has very long-term effects, not only will Pietermaritzburg and Durban be supplied with water, but also a very large foundry at Cato Ridge which will be using millions of gallons of water; the Minister of Bantu Administration and Development also claims rights on that river for irrigation purposes in the Bantu reserves; and there are also big sugar estates as well as the Pinetown regional water corporation which all have plans, immediate plans and potential plans in regard to water. Various water authorities have been set up for the distribution of water and they too have long-term policies for the more economical distribution of water supplies, and what they are concerned about is whether the Minister is now going to take power to distribute that water himself, or to preclude them from distributing and thereby negativing some of the forward plans they have at the moment. For that reason I want to have it quite clear that the Minister in taking these powers in no way wishes to upset the present distribution scheme they have in mind.
I only wish to assist.
I am glad the hon. the Minister has clarified the position and that his whole object is to assist these people by supplying the water in bulk, thereafter leaving it to them to distribute the water as economically as possible.
May I ask the hon. the Minister a question? As he knows it has been stated in Durban where water is not metered that the hon. the Minister will insist upon meters being installed and all the water being metered, whether it be for domestic or industrial purposes. Could the hon. the Minister say whether that is the intention?
I do not think there is any need at the moment for the Department to insist on meters being installed in Durban, but I want to say that a time may arrive in future when it may become necessary. At the present moment and for the foreseeable time there is enough water in the Umgeni catchment area for many, many years to come, because this is not the only dam site to be built there; there is another dam site which I think the hon. member knows about which if all the water stored at the first dam site is utilized, will be built. I think in that way we will be in the position to supply Durban, Pietermaritzburg and the whole area for a long, long time. I think the water from that catchment area will be sufficient for many, many years to come.
Will you only insist on meters if there is a shortage?
If there is a shortage, I might have to insist, because that is one of the measures the Department can take, or local authorities can take to prevent wastage of water. Usually when people find that their water supplies are running short and there is need for more water, local authorities take this step themselves, without the Government or the Department compelling them to do so, because it is more economical to have people really pay for what they use than to have in some instances other people paying for what other people use.
I am interested in the Minister referring to the question of the metering of water in response to a query raised by the hon. member for Umlazi and I would like to know whether the hon. the Minister has considered the position in connection with the additional powers which are being given to him. What is the position going to be if one of the local authorities insist on metering and another local authority drawing water from the same source in bulk does not meter its water and has no control over the water by metering, and recovering their cost of their scheme by the general rate which includes a provision for the cost of water? What is the position going to be if in future the Minister finds that there is an application for an additional supply of an authority which meters water and there is a competing application from an authority which does not meter water? Is the Minister at that time going to insist that the authority which does not meter must install meters before its application can be considered? If he does not do so, to what extent can he satisfy the community as a whole that all communities drawing water from that same watershed are being justly treated, comparing the one with the other? One can see the possibility of this state of affairs arising that a city like Pietermaritzburg metering its water and a city like Durban not metering its water and the city of Pietermaritzburg recovering its water charges through a water rate and a city like Durban recovering its charges by a general rate which includes a proportionate allocation for the use of water. At some future date when say Pietermaritzburg is requiring a further allocation of water from the Minister’s contemplated scheme at Mid-Mar and Durban making an application as well, the Minister having to decide the further allocations. Is the Minister going to take into account the fact that Durban is not metering? Is it at that time that the Minister is going to say to Durban: You must meter. Because sooner or later you will get the position that an organization like Feralloys, which is a very vast scheme for the processing of manganese and which has been encouraged by the Government to establish itself at Cato Ridge, will require more water, and you have the Minister of Bantu Administration and Development insisting that whenever he has a township established, water in the township must be metered to prevent the people wasting water. At what time is the Minister going to insist on metering? I want to assure the hon. the Minister that should he give short notice, it will be impracticable to impose metering, and on the other hand if he intends to give long notice, he should indicate that he is going to give long notice. On the other hand if the hon. Minister does not intend to impose metering restrictions at any time in the future, is the Minister giving notice to all local authorities that if they wish to win the favour of their electorate, all they have to say is “Next time we stand for election of the local authority, we will abolish the metering of water and include it in the general rate”! In view of the powers the Minister is now getting, I think sooner or later he will have to grasp the nettle and I would be very interested to find out this afternoon if the Minister is now prepared to grasp the nettle during the Committee Stage of this Bill.
The hon. member has put a question to me as regards policy which really bears no reference whatsoever to the clause under discussion. Nevertheless I am willing to give him a reply, and I may state here that the Department of course is very, very much in favour that water used in urban areas should be metered. But I can give the hon. member the assurance that water received from State schemes and supplied to a municipality or to any distributing organization which supplies water to local boards, or any other organization, that even if the one area within the same supplying organization’s field of activity is metering while the other one is not metering, the Department will see to it that no profit is being made on the water received from the State and supplied to controlling authorities or bodies if they meter, because naturally we will know exactly how much water they use and whether it falls within the scope allowed as far as charges are concerned. I think the hon. member can rest assured that the Government, or the Department will give all its support to those who install meters, but we do not want to force it unnecessarily. When it is necessary that it should be done, then I think is the time when the Department should make itself heard and use its influence to have meters installed.
I am very sorry to hear the hon. the Minister saying that he is in favour of the metering of water for human consumption. It is like trying to meter air. That applies particularly to a city like Durban which after all is extremely hot and the consumption of water by humans there for cleanliness sake and for household use should at all cost be made available freely, and I hope the hon. the Minister will reconsider the matter and will consult with the Department of Health before he attempts to insist on the metering of water for human consumption.
Order! The metering of water has nothing to do with this clause.
Before you put the clause, Mr. Chairman, I want to say quite clearly from what the hon. the Minister has said, there will be no need for anxiety on his part as far as Durban is concerned over the question of metering of water. I want to say to him quite clearly that if Durban starts wasting water there may be some case …
Order, order! The hon. member may not discuss the question of metering under this clause.
I am going to discuss the question of the power which the hon. the Minister will have to exercise duress upon a municipality in that respect. I ask the hon. the Minister to be most careful not to allow the tail to wag the dog when it comes to the question of metering water.
Clause put and agreed to.
On Clause 14,
I would be glad if the hon. the Minister would tell us exactly why he is making this alteration. The White Paper says the amendment aims at improving the wording of the existing Section 65 of the Act. The Registrar of Deeds, it says, is of the opinion, and the law advisers agree, that as the section now reads it is impossible to register the transfer water from one piece of ground to another against the title deeds concerned. That might be so, but previously the registration had to be by a notarial deed. I want to ask the hon. the Minister why it is now proposed to do that by unilateral deed. I am not objecting to it at this stage but I should like to know that. There must be some reason for the notarial deed having been insisted upon in the first instance.
I also think that the clause could be better worded. It says—
I think it should be “a unilateral deed”. I would be glad if the hon. the Minister will deal with those aspects.
Before the hon. the Minister replies to the hon. member I should like to take the point a little further. As a layman I should like to ask the Minister for an explanation of the true meaning of a unilateral deed. And here, may I say to my hon. friend the member for Transkeian Territories (Mr. Hughes) that I think grammatically “an” is correct, and not “a”. It should be “an unilateral deed”.
As I understand it the deed is registered reciprocally, in favour of another, and that reciprocity therefore provides a person who can enforce the provisions of the deed and demand the fullfilment of the conditions registered in that deed. If it is not reciprocal and it is merely a deed registered and there is nobody to enforce it, it becomes barren. The right of enforcement is not left in the hands of anybody, or it is left to the public at large. Is the registration of an unilateral deed one which leaves it in the hands of the public at large for enforcement, provided that the conditions, whatever they may be, are registered against title deeds? In my experience the conditions cannot be enforced unless it is a reciprocal deed in which it is stated who is the person with the right and the interest to inforce a deed of that character. An unilateral deed, if it is not enforceable by the public at large is, I am afraid, going to be completely barren. Perhaps when the hon. the Minister replies to my hon. friend he will also deal with that aspect of the matter.
When the hon. the Minister replies to that question would he also tell us whether, where he said you cannot enter anything on the deed, he refers to ordinary water servitudes as well? Many people have servitudes on neighbours’ properties for all the water which they get. In my own case, for instance, I have a servitude for two different streams. It is one farm which is split up. The one portion would be useless without those servitudes which have been registered for that farm. When the Minister says you cannot register water rights against title deeds is he also referring to servitudes?
My reply is that the officials of my Department as well as the law advisers have informed me that there are many cases where a scheduling board must institute an investigation when a holding is sold to someone else and water rights have to be transferred and registered. They say that as Section 65 of the Act now reads, it is not clear to the Registrar of Deeds, and because it is not clear to him whether he has the right to do so in those cases where the scheduling boards recommend it and we have given permission, they want certainty that they do have the right, and that is why this amendment has to be effected. This is really all I can say in this regard. It is a complicated legal matter and the law advisers agree that this is a difficulty facing the Registrar of Deeds. They therefore say that if we amend the provision in this way, the Registrar of Deeds will not have any objections. As the law now reads, the Registrar of Deeds is uncertain as to whether he has the right, even when it is recommended by a scheduling board, to effect a rescheduling. In the case of a Government water scheme, for example, water cannot be taken from one holding and given to another holding without a recommendation by the scheduling board. When the scheduling board or in other cases, where the law so provides, the Land Board recommends it, water can be transferred. Otherwise it cannot be done. The Registrar of Deeds now says that as the law stands he does not know whether, notwithstanding the recommendation, he has the right to do so, and if we accept this amendment, we shall facilitate matters for them.
May I ask the hon. the Minister this: Who enforces this in cases such as the hon. the Minister has now suggested? As I understand the situation the Minister says water cannot be taken from the one person—the right of that person to the water—and passed over to another.
From one piece of land to another.
And the deeds cannot be registered with that transferred right. Now the right is being transferred by somebody. Who is going to enforce it if that transferred right is merely registered against the right of the person who has received it?
This usually applies in the case of subdivisions. You will find that one person has, say, 40 or 60 morgen of land. That land has been scheduled for water use. He then sells part of it because he finds it is too much for him, and he sells the water rights—not the land. Under the same State irrigation scheme that man already has a certain number of morgen scheduled for water rights, but he has more irrigable land, so he wants to buy these water rights. He does that but then he has to apply to the Department or the Irrigation Board in order to transfer those water rights to his land.
Do you mean that the purchaser of the extra land is purchasing the water rights?
Yes, he purchases the water rights. Those water rights now have to be registered as applying to the other land which previously did not have the water rights. The Act lays down that that can be done in terms of a decision of the Department or the Minister only; the Land Board has to go there, make an inspection and then recommend to the Department either to grant the transfer of those water rights or not to do so. If the Land Board does not recommend the transfer of those water rights then the Minister does not have the right to transfer those rights. When that has been done, the Registrar of Deeds then comes into the picture and says “As the Act reads to-day the position is not clear”. He has his doubts as to whether he has the right to register those water rights for that land or not in the name of the new owner. The intention of this change is merely to make it clear to the Deeds Office that that can be done. That is my understanding of the position.
Clause put and agreed to.
On Clause 17,
Mr. Chairman. I move the amendment standing in my name—
(1)bis If after an irrigation loan has been granted in respect of any water works any further irrigation loan is granted in respect of water works connected with such first-mentioned works such further loan shall for the purposes of sub-paragraph (ii) of paragraph (b) of subsection (1) be regarded as being one in respect of a separate independent scheme.’”.
In explanation of the amendment I just want to say this. Originally the Department’s attitude. as was also stated in the White Paper, was that there was really no logical reason seeing that we have government schemes which cost such a great deal—a £100,000 and more—and only then do we have to submit White Papers, why in the case of irrigation board schemes we cannot also increase the amount to that figure. I only mentioned this matter at the second reading. I have listened to the arguments of hon. members. The intention and the aim were not to ignore Parliament, nor to make it unnecessary to obtain parliamentary approval for important works. The position was interpreted in that way.
As I said in my second-reading speech, if a certain project or a water scheme originally cost £29,000, it was not necessary to lay a White Paper on the Table of the House. If some years afterwards the Irrigation Board or the department found it necessary that an extra £2,000 or £3,000 had to be spent on the upkeep of the scheme, the department was obliged to lay a White Paper on the Table of the House because in addition to the original £29,000 they had to add the £2,000 which made a total of £31,000. Yet that might have been an expenditure occurring after many years, 15 or 20 years after the original scheme. So that they then had to submit a White Paper to Parliament merely to have the right to spend £2,000 whereas they have already spent £29,000 without the consent of Parliament in that form. Now that the clause has been amended the department and I feel satisfied that it will meet the objections and the criticisms which have come from both sides of the House. The amendment makes it clear that all we intend to do is to lay on the Table of the House White Papers on expenditure of £30,000 or more at any stage, but not if comprising two or more sums added together. I hope that the Committee will give their support to that amendment.
I am sorry, but I cannot take exactly the same view of this amendment as does the hon. the Minister. In his original amendment he was taking the right to give irrigation loans up to £100,000 instead of the £30,000 provided for in the original Act. At the second-reading debate he gave us an undertaking that he would restore the position to what it was before. He has, in fact, brought forward an amendment to clause 17. But as far as I can see that amendment only breaks the amount of the loans down into amounts of £30,000. He can give as many of those loans as he likes. Let me read that clause and get this quite right—
In other words, in terms of this amendment a work can be broken down into sections of £30,000. and it can be broken down into as many sections as the Minister likes. Under the previous Section 156 of the Act the Minister has to prepare actual estimates of cost in any case. It says—
The hon. the Minister accepted the fact that there was no extra work involved because he had to prepare these estimates in any event. It was because of this that he undertook to restore this clause to what it was in the original Act. But he has not in fact done so. All he has done is to give himself still further power. In the first amendment at least he said he would only have the power to grant a loan himself without reference to Parliament in an amount of up to £100,000. But now he can go on ad infinitum in lots of £30,000. He can give ten loans for the same work, each of £30,000, totalling £300,000. Instead of introducing an amendment at this stage to restore the position to what it was before, the Minister has actually removed any restrictions which made it necessary for him to get the permission of Parliament.
If the Minister was sincere in what he said in the second reading debate, I suggest that he should now delete this clause entirely. We would then return to the position as it was in the original Act and. frankly, I can see nothing wrong with that position. It is quite clear there. It says—
But he cannot make a grant in excess of £100,000 without the permission of Parliament, and the department cannot give more than £30,000 without the permission of the Minister. That is quite reasonable and the Minister partly accepted that by going back to units of £30,000. I suggest the easiest remedy for the Minister, which would satisfy everybody, would be to go back to the original section which gives him the power to grant loans up to £30,000 and the House power to grant up to £100,000. That is in line with the undertaking the Minister gave in the second reading debate.
It must be remembered that there are more than 200 irrigation boards in the country, and I do not think there is anyone in this House who can honestly, sincerely and seriously allege that the Select Committee and we who approved of the original Act ever had in mind that works costing less than £30,000 should be the subject of White Papers which must be submitted to this House. Because what is the point in not laying a White Paper on the Table of the House in respect of the first £29,990 which is spent and which is surely the most important expenditure, and then later, when repairs perhaps have to be undertaken, or something must be built which involves additional capital expenditure or an additional loan —perhaps ten or 15 years later—saying that we must submit White Papers to Parliament in respect of £1,000 or £500 in order to obtain Parliament’s approval, and that while the loans are not being made to private individuals. These are loans which are made to statutory bodies such as irrigation boards with sufficient security and in respect of works which are approved of by the Department as qualifying for loans. The Auditor-General and all those concerned ensure that the security provided is adequate. It is only this anomaly which I wish to eliminate. Let us assume that the scheme originally cost £25,000 and it is necessary to spend an additional £1,000 each year thereafter. For the first, second, third and fourth stages I can provide the money without a White Paper. But for the fifth stage I may not do so without a White Paper. It is quite illogical. I do not know what the intention is. I have not given the assurance that I would restore the original provision, but I considered that the amendment that I am now moving would meet and cover the criticisms which have been put forward.
I am sorry but I do not think that the hon. the Minister is appreciating the position in regard to this matter. This particular clause, and this amendment in respect of the amount which can be paid as a loan without the papers being laid on the Table in the House, ties up with Section 162 of the Act. That section provides that up to a loan of £30,000 a subsidy can be paid. There are provisions dealing with those subsidies. A third of the £30,000, that is £10,000, can be a subsidy. This clause ties up with that section because it is the same £30,000. But I am afraid the hon. the Minister has missed that point altogether. The position is that it is not a question of whether it is to be £30,000 or a £100,000 in respect of which the papers shall be laid upon the Table of the House. Under Section 162, where the subsidy can be paid on a loan of up to £30,000, that position immediately arises. If this clause goes through so that a succession of loans of under £30,000 each are acceptable, look at the position we are getting ourselves into. The Minister can make a loan of £29,000 and there would be a subsidy of one-third of that amount. Then under this clause as amended they can make application for another £29,000, get that without laying papers on the Table of the House, and grant another subsidy. The third year the same thing can be done, and you still have less than the £100,000 loan, and you still have less than the £30,000 loan, because the Minister is taking the power to pyramid it. He is overlooking the provisions of 162. This is not nearly as simple as the hon. the Minister would have it appear. He is overlooking the whole question as to whether notice to Parliament shall be given in the prescribed form by laying the specifications and the papers on the Table of the House. That is not the end of the question by any means.
I put it to the hon. the Minister that those two clauses were not linked together by chance, they were done so deliberately. The question of the papers being laid on the Table of the House, the publicity and the right of Parliament to examine the case was based as much on the right of Parliament to investigate the conditions under which a subsidy would be granted. And that subsidy has been paid and is continuing to be paid under those conditions. But to pyramid the loans like this and thereby allow a pyramiding of the applications for subsidies is foreign to the entire procedure. I ask the hon. the Minister to deal with that particular point.
If I understood the hon. member correctly, he has made the point that under Clause 12 …
No, Section 162.
Under Section 162 I can only pay subsidies to the maximum amount of £30,000.
One-third of £30,000.
Yes, one-third. But the point that he misses is this: These loans referred to here, and for which White Papers are necessary are over and above £30,000. They are loans granted to Irrigation Boards. There is no limit to the subsidy that can be granted to irrigation works falling under an Irrigation Board because they are statutory boards. They can be granted subsidies not higher than the statutory subsidy of 33⅓ per cent, which may amount to much more than R60,000. Take, for instance, the Smartt Syndicate Dam: If that Irrigation Board applies to rebuild that irrigation dam, and if we agree to it, there is nothing to stop me giving them a loan of 66⅔ per cent and the statutory loan of 33⅓per cent even if it costs R300,000. If I understood the hon. member correctly, he has missed the point that these loans only have reference to loans to irrigation boards and not to individuals.
Are you certain of that because that is the doubt I have. Can you give us the reference for that? The doubt is that the amendment does not apply only to irrigation boards.
It does apply to them because an individual person gets the maximum subsidy which, I think, is R600.
Business suspended at 6.30 p.m. and resumed at 8.5 p.m.
When the debate was interrupted I was on the point of explaining to the hon. member for South Coast (Mr. Mitchell) that the amount which can be paid out in subsidy to individuals cannot exceed the amount of £300 per person, and that the £30,000 for which White Papers have to be tabled only has regards to irrigation boards which are statutory bodies, and therefore there is no real danger whatever that it can be applied to individuals. It is laid down in Section 162 (1) (c)—
Will you read (a)?
No subsidy shall be granted in respect of any waterwork the total cost of which in the opinion of the Minister is likely to exceed £30,000.
That is my point.
Yes, £30,000, and this is the clause that I wanted to change. Under this Act no subsidy can be paid on an expenditure over and above £30,000 unless a White Paper is tabled. Now I say that on any amount less than £30,000, say an amount of £25,000, a subsidy can be paid to an irrigation board and a loan can be given to them for an amount over and above the subsidy without laying a White Paper on the Table. That is the major work, and if in time to come the Irrigation Board finds it necessary to spend more money on that project, and it wants to spend another £1,000, then I can agree to that expenditure and still subsidize it to the amount of 33⅓per cent without laying a White Paper on the Table. They can go on with that for four or five years, but it is only when the total amount which was originally spent without the consent of both Houses of Parliament and without laying a White Paper on the Table and the additional amounts spent after that, exceeded the total sum of £30,000. The moment it exceeds £30,000, even if it is an expenditure of £10, my Department has to table a White Paper to get the consent of both Houses for an expenditure of £10. I have the right under the Act to agree to an expenditure of £29,999 without laying a White Paper on the Table. That is why my argument is that it seems so absurd. I am willing to lay White Papers on the Table for each and every expenditure at the time which exceed £30,000, but not for additional expenditure which may eventually increase the total expenditure on a certain project to over £30,000, because then it means that you may be forced by the Act to lay a White Paper on the Table for an expenditure of £10 up to £1,000, whereas I think it was never contemplated by Parliament when it accepted the 1956 Act that for the expenditure of such small sums a White Paper would be necessary. That is the only argument I wish to put forward to hon. members. If it comes to sums of over £30,000 for the work, I am willing to table a White Paper, but taking into consideration that we already have at this moment well over 200 irrigation boards, if you approach the matter realistically you can take it for granted that from time to time additional sums are needed for repairs, etc., and the total amount now exceeds £30,000, and the Department is forced to come to Parliament with White Papers, which means a lot of administrative work for something that is not worth while.
The hon. the Minister is quarrelling with the Act. He does not like the limitation of £30,000, but that figure was arrived at by the Select Committee for good reasons. I think that recommendation came from his own department. The Minister now talks about the possibility of granting a loan for £29,999, £1 short of the £30,000 and he says he will not lay a White Paper on the Table for £1,000 or for £10. But, Sir, that is a common principle in our law. That is why we have a means test. His Government put that section there. His Government was satisfied that £30,000 would be a reasonable figure to use as the dividing line between the granting of a subsidy without Papers being laid on the Table of the House and without Parliament having the right to discuss it, and Parliament having the right to discuss it. The Minister’s amendment is to avoid compliance with the Act. A system is being devised for by-passing the provision of Section 162. It is an expedient to overcome the difficulty in Section 162. The expedient is that you do not make public the whole of the cost of your work, but you put forward a plan which will cost less than £30,000. That brings it within the ambit of Section 162. If the Minister’s proposals now are adopted, the expedient has been successful, because the very next year that man can come forward again with plans of a precisely similar nature and costing the same and there is no need to come to Parliament and put his plans before Parliament, when indeed from the very commencement he may intentionally have divided his work into such sections that the ultimate expenditure can be assessed at anything from £60,000 to £100,000. That is why I ask the Minister to read sub-section (a) of Section 162. It is most categoric—
That is unless the plans have been laid on the Table. So here is a complete barrier and the Minister has no option. If the Minister is satisfied that the cost will exceed £30,000, he cannot pay a subsidy. The Auditor-General will not authorize it; it is illegal. That is the barrier for which a plan is now being made to circumvent the law. The Minister must not lend himself to that. He must not circumvent the law; he must obey it. Public funds are concerned here. As I pointed out, this is not only a question of amending Section 157, but Section 157 must be read in connection with Section 162. The Minister must not lend himself to a strategem whereby a man is not seeking to escape the necessity of laying the papers on the Table, but where the people concerned are seeking to get a subsidy as the result of their failure to qualify by putting their papers on the Table. If they come along with a scheme of £100,000 and table the papers, the Minister is free to take action and pay them a subsidy, but the whole matter is then brought to the notice of Parliament which is in a position to deal with it. The Minister has to protect the money of the tax-payer, but this is an expedient, a strategem to avoid the control of Parliament, and the Minister lends himself to this strategem, and I hope the Minister will not do it now that his attention has been drawn to it.
I think it is a matter of difference in interpretation. I want to point out to the hon. member for South Coast (Mr. Mitchell) that some of the law advisers differ on this point. There are many who believe that the Department need not necessarily come to Parliament for an extra expenditure on a certain irrigation project under the control of an irrigation board when the original sum has been granted (and on which a subsidy was paid), if the additional expenditure on that project amounts to less than £30,000. But instead of trying to by-pass the law, in order to make quite sure, my Department has interpreted the Act to mean that you must add the additional expenditures and when they reach the amount of over £30,000 then you have to lay a White Paper on the Table.
That is what we have been doing and that is what the hon. member for South Coast thinks is right.
That is the law.
It is not for the hon. member for Transkeian Territories (Mr. Hughes) to say what is the law; it is for the court to say that, and now I want to make this point. If a test case is made I am not so sure that the court will not hold that we need not have done that.
What court can you go to?
Say e.g. an irrigation board says that it takes too long that we are sanctioning this project of theirs; we think it is within their economic means and it is also beneficial, and now the Minister says the consent of Parliament must be obtained and that will take six months and in the meantime they lose money, and then they go to court. That is what I meant by referring to a test case being made. It is not for the hon. member or for myself to determine which is the right interpretation. [Interjections.] Even if you have an Act before you, a Department or a Minister or a Member of Parliament can have their own interpretations of it and it may be wrong; and while that is the case, my point is what objection can there really be on the part of hon. members opposite against this amendment which I am proposing? Because it is not by-passing the law; it is stating it very clearly so that everyone can understand it and so that there may be only one interpretation of the Act, viz. that in cases where an application is being made for amounts exceeding £30,000, a White Paper has to be tabled, and where an application is made for amounts less than £30,000 no White Paper is needed. The hon. member must not forget that we make pretty sure before granting a subsidy not only whether the applicant is a valid applicant, but we go into the whole economy of the matter, whether it will be within the reach of his finances and that of the people served by that project to repay the loan with interest, and all the other factors, before we say this is an economic project which we can support and subsidize. So it is not just a question of giving a subsidy to everyone who applies for it. A good case has to be made out based on scientific research and reports by qualified engineers not only of my Department but even of consultant engineers outside the Department. Now I cannot for the life of me see why so much objection, should be raised to this clause.
I think we are getting right off the track. I think if we stick to the things that are actually before us we might get this thing sorted out. Section 157 which the Minister proposes to amend now, does not provide for two loans. It provides for “a loan” and it lays down in Section 156 that first of all an estimate shall be made. Then Section 157 says that upon completion of the investigations referred to in Section 156 the Minister may submit the application for the loan with his recommendation to the Governor-General, who may order that an irrigation loan for such an amount and repayable within such a period as the Governor-General may determine, be made to the applicant out of monies provided by Parliament for that purpose. Now obviously the intention of the Act is that when an application is made an estimate of the cost shall be made, application for a loan on that basis shall be made, and it shall either be granted or refused, and there the matter ends. There is no provision in that section which we are seeking to amend for extra loans in addition to the original one. Now the Minister has obviously run into difficulties where a work has cost more than the originally estimated £30,000.
No, that is not the case.
Let us get this quite straight. That is the point the Minister has put to us. He said that when he granted a loan of £29,000, he did not have to lay a White Paper on the Table, but when the scheme cost another £2,000 it was over £30,000….
You did not listen when I put my case.
In my simplicity I have tried to speak English in order to help hon. members and I do not want to be funny, but it seems to me that they understand my Afrikaans better than my English and I am now going to speak Afrikaans. That is not what I have said. The hon. member has now raised quite a new aspect, namely that what I want to remedy is an incorrect cost calculation by my Department.
Of course that is so. I do at least understand the hon. member’s English. He says that is what I want to correct, namely an incorrect cost calculation by my Department.
Order! The hon. the Minister is now only replying to the hon. member for Umlazi (Mr. H. Lewis).
The hon. member his said that I am seeking a way out so that when I estimate that a work will cost less than £30,000 and the work is carried out and I find that it will cost more, I shall not have to come to Parliament. That is going very far. It is quite incorrect. It has nothing to do with such matters. We are extremely careful when we estimate such costs.
Order! The hon. member has just resumed his seat so that the hon. the Minister could tell him what he did say. Will the hon. the Minister now tell the hon. member what he said?
I merely said that it did not relate to the cases which he has mentioned.
The answer is that the Minister is having difficulty with amounts in excess of £30,000, and that is why he said he wanted to exceed it. But that does not really matter because the Act says that he shall have an estimate made of the cost and on that cost a loan will be granted. If the amount does not exceed £30,000 he does not have to come to Parliament with a White Paper, but if it does exceed that amount he has to come to Parliament. There is no provision for subsidiary loans which might increase the basic cost. The Minister then in his Bill sought an amendment which would give him the right to grant loans up to £100,000 without having to lay a White Paper or the Estimates before the House. When we said we did not agree to that, the Minister said: All right, I will introduce an amendment in the Committee Stage which will more or less reduce the position to the status quo, which exists in Sec. 157. Now we have these two points clear, so let us get to the amendment which was introduced. This amendment now says that if he gives a loan to an individual or a board up to £30,000 he need not come to the House, but if next year he gives them another loan, to the same individual or board for the same work or other work on the same project, that will not be added to the original £30,000. What is the effect of that? The effect is that it can go on ad infinitum and the Minister is not carrying out what he said he would do in the second reading, because in the second reading at least he limited himself to a maximum of £100,000 without coming to this House, but now the sky is the limit and he can grant a loan of £1,000,000 in lots of £30,000 each. There is no limit whatever, because each and every grant to an individual up to £30,000 shall be considered as an entirely new loan for a separate and independent scheme. So the Minister can go on for as long as he likes granting the same individual or board a series of loans of £30,000 and there is no stop to it. So he has not done what he said he would do in the second reading. He has worsened the position by this amendment. Instead of limiting himself, as he did in the Bill, to an amount of £100,000, he has taken off all the limits and given himself the right to give an individual, a body or a company, any amount for irrigation works, whether it is £1,000,000 or £10,000,000, provided he does it in amounts of £30,000. That is what the amendment says and we are not prepared to accept it.
I just want to show the hon. member for Umlazi (Mr. H. Lewis) how one, without deliberately wishing to do so, can exaggerate. The hon. member has now said that the hon. the Minister can pay loans and subsidies of £30,000 each to any individual, board or company and “the sky is the limit”. But if he had read the Act and if he had listened to what I told the hon. member for South Coast, he would know that while he has mentioned three groups of people, namely individuals, irrigation boards and companies, he is only correct in respect of irrigation boards, but that I cannot do so in the case of individuals or companies because the existing Act lays down that I cannot do so. I want to ask the hon. member whether he thinks he is talking to a bunch of fools. He is deliberately making himself guilty of exaggeration because he cannot be so ignorant. It is not in keeping with the hon. member’s prestige.
Now, as far as his objection is concerned, one can of course raise imaginary objections in any discussion, but the hon. member cannot be blamed for that because he is not concerned with the implementation and application of this legislation in practice. In actual fact the position is as follows. The only reason why we are moving this amendment is that we do not want to attach so much importance to unimportant work that the administrative cost to the department perhaps far exceeds the value of the undertaking itself. I have now told hon. members repeatedly that in practice the position is that when a work has been planned and its costs have been estimated to be £28,000, we must be realistic and accept that this is a new work; it has been properly surveyed and planned and many years will elapse before any additional expenditure in the form of improvements or as a result of depreciation or as a result of exceptional circumstances such as wash a ways, becomes necessary. Normally such a work stands for 15 to 20 years, but then it needs to be repaired. But this is a work which has been approved by Parliament and now an additional amount of £2,000 is required to improve this work which cost £29,000 so many years ago, something which is absolutely necessary. But because this £2,000 plus the £29,000 will total £31,000, the department must lay a White Paper on the Table. It often happens that for 15 years such an irrigation board is never a burden on the department. It pays its interest and redemption and is financially sound, but after this long period it has to spend £2,000 and for that purpose a White Paper must be laid on the Table. With all the work the department has, it must appoint people to go and examine the original work of 15 years ago, for which a White Paper was not necessary, and a detailed White Paper must be submitted to Parliament in respect of the £2,000 additional expenditure.
I shall explain. If Parliament was so anxious to have White Papers, why is there then an exemption in respect of any amounts; why do we not say that any amount should be supported by a White Paper? If any hon. member opposite were to propose that no amount could be lent to an irrigation board, whether it be £10 15s. 0d. or any other amount, without a White Paper being laid on the Table of the House, I would say they were being consistent. Then they would at least be consistent in their attitude. But when they say that the first £29,000 can be lent without parliamentary approval but that the next £1,000 or £2,000 or whatever the amount may be, may not be lent without a White Paper, then I honestly say that I cannot respect their logic. There is no logic in it. Hon. members opposite have tried to arouse fears of mismanagement and malpractices. I want to tell hon. members this: Assuming that hon. members who feel so strongly about this matter are correct, then it is not the solution to say that the existing section should remain unchanged. Then the solution is to repeal the existing section and to say that no amount may be lent to an irrigation board without the approval of Parliament and without a White Paper being submitted to the House. That would be the logical consequence. I simply cannot see the principle underlying the opposition such as we have had to this provision.
I want to deal with one point, Sir. When the hon. the Minister was speaking he made a categorical statement in regard to the right of a board to claim a loan under this clause. He said the board could take him to court and get a court order compelling him to grant the loan.
I said that the board may be able to make out a very strong case.
No, that was not what the hon. the Minister said.
It is not for you to say whether the board can or cannot.
Let us get the matter clear. The Minister made the point—he took me to task over it—that he said “the board can take me to court; they can get on with their work; they put up their case to the court and they can get an order compelling me to grant them a loan”. Just let us have a look and see what the law says, not what the Minister’s ideas are about the matter. It says—
That are those sections dealing with the subsidy—
which includes a board—
There it is in plain language and to turn round to Parliament and to say that on that presentation of the law a board can take him to court and demand that he grants them a loan, is beyond me. It vitiates the whole basis of the Minister’s argument. Parliament may refuse to vote the money and what is the Minister going to do then? It says here that the loan is to be granted out of money voted by Parliament, and if Parliament says, “We are not voting any money for that purpose”, how can the board take the Minister to court in those circumstances? His whole presumption is wrong. The whole of his argument falls to the ground because the basis on which he has established it is wrong, completely wrong. He is master in his own house subject to the control of Parliament. That is all we ask from the Minister. We ask that that section be complied with in respect of loans over £30,000. Come to Parliament, bring it to the attention of Parliament by means of a White Paper, as the law provides, and do not create for those people who may try to find a way of contravening the law, an instrument which they can fashion for their own purposes by means of the amendment which the Minister is moving to-day.
Question put: That all the words after “hereby” in line 2, to the end of the clause, proposed to be omitted, stand part of the clause,
Upon which the Committee divided:
Ayes—33: Bowker, T. B.; Bronkhorst, H. J.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Gay, L. C.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Hughes, T. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Smit, D. L.; Streicher, D. M.; Suzman, H.; Swart, H. G.; van Ryneveld, C. B.; Warren, C. M.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Noes—64: Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Wet, C.; Diederichs, N.; du Pisanie, J.; du Plessis, H. R. H.; du Plessis, P. W.; Erasmus, F. C.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Jurgens, J. C.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Stander, A. H.; Steyn, F. S.; Treurnich, N. F.; van den Berg, G. P.; van der Ahee, H. H.; van der Merwe, J. A.; van der Walt, B. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; von Moltke, J. von S.; Vorster, B. J.
Tellers: W. H. Faurie en J. J. Fouché.
Question accordingly negatived and the words omitted.
The substitution of the words proposed by the Minister of Water Affairs was put and the Committee divided:
Ayes—63: Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; De Villiers, C. V.; De Wet, C.; Diederichs, N.; Du Pisanie, J.; Du Plessis, H. R. H.; Du Plessis, P. W.; Erasmus, F. C.; Fouché, J. J. (Sr.); Froneman, G. F. van L. Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Jurgens, J. C.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Stander, A. H.; Steyn, F. S.; Treurnicht, N. F.; van den Berg, G. P.; van der Ahee, H. H.; van der Merwe, J. A.; van der Walt, B. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; von Moltke, J. von S.; Vorster, B. J.
Tellers: W. H. Faurie, J. J. Fouché.
Noes—32: Bowker, T. B.; Bronkhorst, H. J.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Gay, L. C.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Hughes, T. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Smit, D. L.; Streicher, D. M.; Swart, H. G.; van Ryneveld, C. B.; Warren, C. M.; Williams, T. O.
Tellers: N. G. Eaton, A. Hopewell.
Substitution of the words accordingly agreed to.
Clause, as amended, put and the Committee divided:
Ayes—62: Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Wet, C.; Diederichs, N.; du Pisanie, J.; du Plessis, H. R. H.; du Plessis, P. W.; Erasmus, F. C.; Froneman, G. F. van L.; Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Jurgens, J. C.; Kotze, G. P.; Kotze, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert. D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Stander, A. H.; Steyn, F. S.; Treurnicht, N. F.; van den Berg, G. P.; van der Ahee, H. H.; van der Merwe, J. A.; van der Walt, B. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; von Moltke, J. von S.; Vorster, B. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—32: Bowker, T. B.; Bronkhorst, H. J.; Connan. J. M.; Cope, J. P.; Cronje, F. J. C.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Gay, L. C.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Hughes. T. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Raw. W. V.; Ross, D. G.; Russell, J. H.; Smit, D. L.; Streicher, D. M.; Swart, H. G.; van Ryneveld, C. B.; Warren, C. M.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Clause, as amended, accordingly agreed to.
The remaining clauses having been agreed to,
The Committee reverted to Clauses 4 and 12 standing over.
On Clause 4,
After careful consideration I have decided to delete this clause. Section 11 of the Act will consequently not be amended.
Clause 4 put and negatived.
On Clause 12,
I have asked that Clause 12 should stand over so that I could have an opportunity to consider the amendment of the hon. member for Heilbron (Mr. Froneman). I am sorry but I cannot accept that amendment. The clause will consequently remain as it is.
The hon. the Minister has turned down the amendment moved by the hon. member for Heilbron (Mr. Froneman). I do not think anything can be done to the clause as it stands at the moment without a complete investigation and discussion in all detail in order to make it a clause that can be passed by this House. The hon. the Minister is taking unto himself powers to reapportion the water of people who have riparian rights. I asked him before to tell us just what he intended to do, when he had the powers under Clause 12, with the powers he was taking unto himself under Clause 10, amending Section 59 of the Act and Section 62. He has not told us as yet what he intends to do with those powers in relation to the apportionment of water. He quite rightly pointed out what he had to take into account when he laid down a formula for the apportionment of water in any proclaimed area. But, Sir. it is not binding on the hon. the Minister to apportion that water to those who enjoy riparian rights to-day. Under this amending clause, under these powers and the powers that he has under Clause 10, the Minister can decrease the amount of the original apportionment, he can increase it, but he can decrease it and that irrigator or that farmer can only get his rights entrenched by going to a water court. I pointed out to the hon. the Minister that the Select Committee dealt at great length with this particular section in the Act—the section that he is seeking to amend by Clause 12. We wanted to safeguard the irrigator, especially the small irrigator from having to go to a water court where the expenses are very high in order to protect his water rights. I think it is very unfair on the part of the Minister to come with an amendment of this sort without going fully into its repercussions. Since this has been tabled we have been busy in this House and some of us have been busy on select committees in the mornings and it has been practically impossible to go into all the repercussions that this clause will have on the administration of the Act as a whole. It is a very long and complicated Act. It took the Select Committee three years to produce that Act. It was a unanimous decision of this House when it was accepted. That Select Committee went into all the details; we had experts before us, technical experts from the Department itself as well as the legal draftsmen and other legal people to help us to produce a good Bill. I think it is very unfortunate that the hon. the Minister has not acceded to our request raised during the second reading and that he has not referred this clause to a Select Committee, because this clause in particular is one that we have to examine in every detail as to the various repercussions it may have. It makes it very difficult. Sir, because we should be very careful when we pass legislation which affects the very livelihood of people, which affects that very important factor water, we should be very careful and ensure that we pass a law which is clear so that it can be administered easily and so that everybody can understand it and that those who have rights entrenched under the Act are not put to any costs. I hope that even at this stage the hon. the Minister will withdraw this clause. He has got the rest of his Bill through. I think he should send this clause to a Select Committee and then he may perhaps come to this House next year with something cut and dried, and we may then perhaps pass something that will amend the provisions of the Act reasonably, so that they can be applied fairly and squarely without taking away the rights of riparian owners who have vested rights in water and who make their living by the usage of that water.
Before the hon. the Minister asked that this clause should stand over I had been speaking about certain aspects of the clause down to sub-section (c), and I want to go on from there now and deal with the Minister’s statement in regard to the amendment that he is moving, that is the amendment on page 700 of the Votes and Proceedings. The Minister said that he will be called upon to provide a formula. He does not know what formula the water courts use, but his Department will help him and they will find a formula, taking into consideration the various factors, and with that formula to guide them, he will then apportion the necessary water in a water control area so that (to use his own words) “it will be justly distributed”. Then he went on to say, quite correctly, that in terms of his amendment to this clause a dissatisfied irrigator will have the right of appeal to the water court.
Which he never had before. That is important.
It is really quite beside the point and has got nothing to do with the Bill. The irrigator who is dissatisfied with the Minister’s apportionment has now a right of appeal to the water court and if the water court gives a decision in favour of the appellant, the irrigator, against the Minister, provision has got to be made in the overall adjustment so that the judgment of the water court is complied with and that irrigator gets the amount of water which has been allotted by the water court. The point that the Minister relies on is the “just apportionment of the water”. He says in effect: You can’t mess around with this. You have to get the basic factor (whatever that is) for the purpose of finding your formula, then you apply your formula to everybody equally and everybody is equally treated. Mr. Chairman, of course that is just what the position is not. Everybody is not equally treated. Nor is the Minister called upon to treat them equally. You see, Sir, if the hon. the Minister will read sub-section (b) on page 6 of the English version of the Bill—it looks as if there are two sub-sections (b)—he will find this—
That is the point. The permits and the notices which accompany them, the permits themselves, can differentiate in respect of different periods and in respect of different persons or classes of persons. The legal pundits when I went to them to ask them what was meant by “different persons or classes of persons” said: “Well, legally, different persons could mean different farmers of precisely the same class and status; you can differentiate between farmers of the same class and status, of the same race and class and status.” “Different classes of persons can mean different races of persons, or persons, who are farmers but who farm in different branches of farming.” They went on to say that indeed there can be no all-embracing definition of “classes”. Where the Minister is given the right to differentiate between different classes, his ingenuity can be put to any test that he wishes —it is limitless, the difference in classes that he can find. And here it will be “in the opinion of the Minister”. So that the Minister’s prime contention again here again is shown to be faulty. The Minister’s whole case when he painted the picture of this new elysium, in which this admirable set-up takes place with everybody being treated alike and fairly, breaks down on the fundamental ground that he is not called upon to treat everybody fairly. He has provided a let out for himself, permitting him to differentiate as between one person and another person of the same race, status and category of farming or as between different classes of people, which may be a different kind of farmer and so forth.
It may be done on merits alone.
Of course there may be varying degrees of merit. One person may be more meritorious than another and the Minister may decide on his own grounds who is the most meritorious person. You see, Mr. Chairman, the legal people say that there is no limit to this. Moreover, the Minister goes on in (b)bis of (c) to once again provide that—
Here again the Minister takes the power to discriminate, because he can make this temporary reduction or increase in respect of water which may be abstracted by any person. That is of course a natural person or a statutory person, and it is to depend on special circumstances which the Minister may determine for himself. The basis of the whole contention of the Minister that this is equality to everybody and fair to all falls away completely because he takes this power to discriminate. I can realize the difficulties of the Minister. I can realize that the Minister and every preceding Minister may be only too anxious to the best of his ability and within the capacity and the powers granted to him to see that there is a fair distribution and he may feel that the power of discrimination is necessary, he may feel that at some time of the year one type of irrigator will require a larger apportionment of water than a man who may be irrigating a different crop altogether, and the Minister may want to do it that way. But I come back to the fact that when you put that into a law, unless you write in complete safeguards, you are in trouble, and this should not be a load to be carried by the Minister in person. I dealt with that on the previous clause and I come back to it again: The Minister should devise machinery for a tribunal to handle these matters, and where he as Minister does not come into it at all. He must not get down to the arena of controversy where the distribution of water is concerned. He should be on the pinnacle of a court of appeal. The people that are concerned in the matter when they have given up all hope, go to the Minister to ask for a fair deal.
What a hope!
Well, I have got to express my confidence in somebody or other as the final court of appeal. They can’t come to Parliament, and I do not want to suggest that they should go to the water court. The Minister has provided for people to go to the water court, but a small irrigator cannot go to the water court to fight the Minister and to fight the Government. But I do ask the hon. the Minister not to be the authority to deal with water in this manner. Fix any type of machinery you like, and if you do not want to come into the picture, let the people then have the right to go to the water court. But with this power of discrimination, he must expect trouble and big trouble. Indeed I go further and I prophesy here and now that we will have further amendments to this Act probably next year from the Minister, because it cannot work this way. It is doomed in advance. I appeal to the Minister: Don’t take the responsibility of trying to find a formula under which you are going to fairly and equitably distribute water throughout these big irrigation schemes that are contemplated. It is going to lead the Minister into trouble and is going to lead the Government into trouble and is going to lead South Africa into trouble, and a kind of trouble we don’t want in regard to the distribution of water.
In reply to the hon. member for Pietermaritzburg (District) (Capt. Henwood) I just want to say this: I believe that the amendment to Clause 12 standing in my name is probably the most constructive amendment contained in this whole amending Bill because it provides for the correction of a very dangerous weakness in the original Act. If I were to think as the hon. member for South Coast (Mr. Mitchell) thinks and if I were to approach the matter as he approaches it, then I could perhaps understand why he is trying to belittle everything, that is to say, by claiming that the right of appeal is of no value to a small farmer. The fact remains that the hon. member for South Coast, the whole Select Committee and the 1956 Parliament made no provision anywhere in the principal Act to the effect that the Minister of Water Affairs is obliged to apportion water from such a stream to a riparian owner who had not irrigated his riparian land. I said so at the second reading and during the debate at the Committee Stage I said that I challenged hon. members to show which section contains such a provision and no hon. member has risen to do so. In other words, the fate of these people, that is to say those people who are riparian owners along a stream who have never irrigated in the past, was left to the absolute discretion of the Minister.
Wider powers than those I have never heard of being given to any Minister. Now the hon. member for South Coast comes along and says that I am now in this amendment taking the power to discriminate between different farmers, different classes of farmers, classes of people belonging to the same cultural group, or what have we, and he is taking very great exception to that proviso in the amendment. The hon. member was a member of the Select Committee which was sitting on the Act for so many years and he gave his consent to the original Section 62 (2), which reads—
And then we come to sub-section (b) …
No, read further what sub-section (a) says.
I will continue to read sub-section (2) (a) if the hon. member likes, but I first come to (2) (b), which says—
That is the end of sub-section (2) (b). The same wording of the original Act is being used in this amendment of mine, and the hon. member only now becomes aware of the fact that he has given all these powers to the Minister in the original Act. Therefore I am absolutely convinced that through amending this clause I am doing especially the small farmers, and as a matter of fact all farmers in any water control area who have not used their water rights prior to proclamation, the greatest service ever.
The Minister comes and reads little bits and pieces here and there. Why does he not read sub-section (8) of the same clause which says that there shall be a right of appeal to the water court against any decision of the Minister in connection with an application for a permit, etc.?
That only refers to people who have made use of their rights.
It is no good the Minister trying to run away again. There is the appeal to the water court. But the Minister does not read that sub-section. I repeat that we are trying to avoid the process of a water court, particularly in the case of the small irrigator. In the case of a scheme such as the Minister is contemplating under Clause 12, you have many small irrigators. Because here we are dealing only with land in a water control area and it is dealing only with irrigation, purely water for irrigation purposes in a water control area, and the right of appeal was there in Section 62. I say again that the hon. the Minister now makes provision for discrimination, and it cannot be carried out. The Minister feels happy about this, but I want to point out to him that this Bill as it is now before us is not the same Bill as the one that appeared in the Gazette. He has already made alterations. Those particular sub-sections (b) and (b)bis were materially altered before they came to this House. He has already changed them. Why? Why did he change his mind and bring in those conditions which were only inserted afterwards? They were not in the Bill as published in the Gazette.
I stuck to the old wording that you placed in the original Act.
No, Mr. Chairman, the hon. the Minister has not got an answer when he has to give a reply like that. The truth of the matter is that the original objection of this side of the House remains. The Minister is taking control of the water under sub-section (b) and (c) (a). He is not going to distribute it equally because he need not, and we cannot agree to place that power in the hands of the Minister.
The hon. member who has just sat down, is really being obstinate. Nor is he familiar with the legislation which he is discussing. The hon. member has referred to sub-section (8) of Section 62. Let him please read that sub-section once again; then he will see that it refers to cases where permits have been issued, but the Minister has tried to explain that we are here discussing cases involving land situated along streams in Government control areas. Two types of case can arise. The one is the case where water rights have already been exercised in the past, where there has already been development. In such a case the law lays down that the Minister must issue a permit. But the hon. member knows that there are many cases where the land has not been developed and in respect of which no right to a permit exists. All the Minister is doing is to say that when he makes an apportionment in such instances, persons who are affected by such an apportionment will also have the right of appeal. Allow me to tell the hon. member this: As the law stands to-day, it has the material weakness that a person who had a water right in the past, has recourse to the courts. He can go to the courts and say: I ask the court for my rights because I could not get them from the Minister. But it is also the position that under the new legislation which embodies the principle of dominus flumenis, which therefore means that the Minister has the right to apportion all water, the Minister must also grant a right to a person to whom water has not been apportioned, and as the law stands, no person, whether he is a big or a small farmer, can seek his rights in the courts under the existing legislation because this section specifically excludes that. All the Minister is now doing is saying that there is a weakness which was not seen, with or without the complicity of the hon. member for South Coast at the time the legislation was adopted, and the Minister is now saying: I cannot discriminate between one person and another person when I grant the right of appeal. He is now giving the right of appeal to everyone if they are dissatisfied with the Minister’s apportionment. That is the crux of the whole matter. The hon. the Minister is merely trying to eliminate this whole weakness and if the hon. member will also read sub-section (8) again, he will realize that the Minister is merely correcting what the Act did not do. Sub-section (8) to which the hon. member has referred deals with cases where the Minister has issued permits, but this amendment relates to cases where permits were not issued.
The hon. Minister mentions the powers given to him by the Select Committee under Section 62 (2) (b) and he says that he has used the same words in the amendment. But if you read the whole of Section 62 (2) (a) and (b), you will see that in 62 (a) all the people are covered who have water rights and the Minister has not got the discriminatory power to take away the rights of those people under 62 (1) (a), but under 62 (2) (a) and (b) we gave him rights in relation to other people who ask for permits and who have no riparian rights on that river. It is a very different problem where he now wants to take complete control under Clauses 10 and 12 of this Bill and where he has the right to re-apportion all water. When he says that the Select Committee gave him the same sort of powers under Section 62 (b), that is not correct.
Amendments proposed by the Minister of Water Affairs were put and agreed to.
Clause, as amended, put and the Committee divided:
Ayes—63: Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha. M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Coetzee. P. J.; de Villiers, C. V.; de Wet, C.; Diederichs, N.; du Pisanie, J.; du Plessis. H. R. H.; du Plessis, P. W.; Erasmus, F. C.; Froneman, G. F. van L.; Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Jurgens, J. C.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux. P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert. D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall. J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Stander, A. H.; Steyn, F. S.; Treurnicht. N. F.; van den Berg, G. P.; van den Berg, M. J.; van der Ahee, H. H.; van der Merwe. J. A.; van der Walt. B. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Von Moltke. J. von S.; Vorster. B. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—35: Bowker, T. B.; Bronkhorst, H. J.; Butcher, R. R.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Beer. Z. J.; de Kock, H. C.; Durrant, R. B.; Gay, L. C.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Hughes, T. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore. P. A.; Oldfield, G. N.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Smit. D. L.; Steytler, J. van A.; Streicher, D. M.; Swart, H. G.; Swart. R. A. F.; van Ryneveld. C. B.; Warren. C. M.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Clause, as amended, accordingly agreed to.
The Title of the Bill having been agreed to,
Bill reported with amendments.
More than two members having objected,
Amendments to be considered on 8 June.
Mr. SPEAKER announced that the Committee on Standing Rules and Orders had appointed the following members to serve on the Select Committee on a Question of Privilege, viz.: Dr. Coertze, Messrs, de Kock, Haak, Hughes, Dr. Steenkamp, Mr. F. S. Steyn and Dr. W. L. D. M. Venter.
Fourth Order read: Adjourned debate on motion for second reading,—Indemnity Bill, to be resumed.
[Debate on motion by the Minister of Justice upon which amendments had been moved by Mr. Hughes and Mr. Lawrence, adjourned on 25 May, resumed.]
Mr. Speaker, when this debate was adjourned I was dealing with the reasons and the precedents which the hon. the Minister has quoted to this House in order to support his contention that he had every justification in presenting a Bill couched in the terms in which this Bill has been presented. He relied mainly on the fact that South Africa had become accustomed to this type of legislation. In fact he almost suggested that it was routine legislation and that there were a number of examples in other countries abroad which created the precedents which, he felt, justified the introduction of this Bill. In quoting the precedents from abroad he confined himself only to the Indemnity Act of 1920 passed by the British House of Parliament. I challenge the Minister on the basis that he was only able to quote that Act because he had no other precedents of any value. In quoting this precedent he also went so far as to say that in the British Act the law had been passed some two years after the end of the war, which gave him his precedent for dealing not only with the actual period in which the incidents took place for which this Bill is mainly intended to cover, but also another period of time beyond that specific period. I then suggested that the hon. the Minister did not really know his brief, and I would like to deal with this particular Indemnity Act from overseas and quote from it.
The Indemnity Act which was passed in 1920 states the following in the preamble—
It then goes on and finishes off with the following word—
In quoting from Halsburys Statutes of England, the second edition, volume 26 at page 204—an authority which is accepted in all courts of law not only in the United Kingdom but in all countries of the Commonwealth, of which this country at one time was a member—it says as follows—
The point is that it only relates to acts done during the 1914-18 War, and so it limits itself, despite the fact that it was passed two years after the cessation of hostilities; it limits itself to that particular period only. I cite this in order to indicate that this was passed to cover matters which took place during a protracted period of war. It has been mentioned by previous speakers on this side of the House that all the other Indemnity Acts passed in our country, and on which the hon. the Minister relied as precedents, were passed consequent upon certain incidents which also took place over a fair period of time, and which did not arise out of similar circumstances to which this Bill is now being applied. For instance, the 1914 legislation covered the general strike when there was not only violence but martial law was declared. In 1915, during the time that this country was at war, a rebellion had broken out in the Union. In 1922 there was a labour revolt, there was terrorism and, as has been explained, there were armed forces in Johannesburg and on the Reef, and shooting took place and there were conditions almost akin to war for some period of time. In 1940 when the Indemnity Act was passed in this country, the country was at war.
Therefore, Mr. Speaker, I think it is perfectly clear that all these Acts for which we have precedents in this country, and the Acts to which the hon. the Minister referred, were passed in respect of incidents which took place either because of a war period or a set of circumstances which amounted to protracted periods of up-rising, terrorism and violence in the country.
What about the 1914 Act?
The 1914 Act was a result of a general strike. There was violence and martial law.
How long did it last?
Certainly for some period of time. And certainly more than 29 seconds.
A matter of seven weeks.
What about the trade union leaders that General Smuts deported? He received indemnity for that.
I am dealing with Act arising out of which indemnity was given.
But he received indemnity for that.
You must read the Act.
It is the same Act, the 1922 Act.
It was not 1922 it was 1914.
No it was the 1922 Act. Now, Mr. Speaker, there is another question which the hon. the Minister may have quoted, and that is a precedent from a sister republic the United States of America. There in 1863 an Indemnity Act was passed. It is the only one on record passed in respect of any incidents which took place in the United States itself, and that was during the period of the American Civil War which lasted from 1861 to 1866. There in 1863 they passed an Indemnity Act. But this Indemnity Act went through the American Congress and the Senate under most difficult circumstances and was subjected to the most severe opposition, where the opposition fought the Bill and even used filibustering methods to avoid the passage of the Bill on the grounds that it was an interference with the liberty and the rights of the subjects and of the rule of law. Whilst it was necessary to protect individuals or servants or agents of the state, it did not go so far as to actually protect the state itself. But the opposition to its passage was due to the fact that it was an interference with the regular procedure of people seeking to place their case before the recognized tribunals, namely, the courts of law. It is interesting to know what was said at that time. I now read from a book by Dr. Randal who was an associate professor of history at the University of Illinois. This book was published in 1926 and it says—
It goes on further and says this—and this was a significant feature which was previously referred to in the course of this debate—
That was one of the grounds used in protesting against this measure.
On page 205, for instance, one Senator said this—
Then, Mr. Speaker, the hon. the Minister of Justice went further and quoted from an authority known as Wade and Phillips Constitutional Law, from which he sought to further establish that there were precedents for Indemnity Act in the United Kingdom. But I think he forgot to tell us that those particular Acts were in respect of the suspension of the Habeas Corpus and that that type of Indemnity Act had fallen into disuse in the last century. In fact I do not think there is much record of it being made use of in the 19th Century. The authority from which I have quoted, Randal, does make the following observation when dealing with these particular Acts of Indemnity—
This indicates immediately with what care and caution these particular Acts of Indemnity were applied; the limited period during which they were applied and the particular incidents for which they were applied. I indicate this in order to justify the contention of this side of the House that whilst we are perfectly satisfied, in the circumstances, to protect the servant of the state, the police officer, the soldier who has acted ostensibly in good faith in doing his duty, we are nevertheless not prepared to absolve the state itself from its responsibility to the citizen, if the citizen has a case which the courts are prepared to substantiate. All we are asking is that his right to go to the court and to prove that he is entitled to compensation or damages shall not be taken away.
Mr. Speaker, this particular Bill is so wide that one is somewhat concerned as to whether it does not, in fact, almost amount to an amendment of the Defence Act. The Defence Act provides, in Section 100 (1)—
Then the Act goes further and provides in sub-section 2—
So that even in time of war, in terms of the Defence Act, where commandeering takes place compensation is payable.
Mr. Speaker, we strongly suspect that the provisions of this present Bill are so wide that they might well interfere with this particular provision, because if one examines Clause 1 (e) one finds that it refers to—
and so forth. But it refers to any act, and those words are, in the view of this side of the House, sufficiently wide to encompass the provisions for compensation made in the Defence Act. I am sure that the hon. the Minister never intended that. If he did it is an indication of how far this Bill really goes.
If the hon. the Minister of Justice limited the period of this particular Bill, it would at least be in accordance with accepted practice.
Were the 1914 and the 1922 Bills limited?
They were in a respect of a certain period of time. They covered a certain incident. But this Bill now before us commences from 21 March, before the Union was even in a state of emergency, and it has extended and will continue to extent until it receives the signature of the State President. That may take another four or five weeks.
And until it is promulgated.
Yes, as my hon. friend says, and then until it is promulgated.
That is exactly what the 1914 Act did.
But that only affected certain districts.
That does not matter, it is the principle.
Mr. Speaker, I do not know whether that is a good example, but the fact is that other Acts of Indemnity to which the hon. the Minister has referred, are not only few in number—as I said, they are limited to one in the United Kingdom and one in the United States—but they were also limited in terms of the period of time. And if there is any precedent at all to follow, perhaps that is the best precedent.
I do not know why we should not follow the South African precedents, the 1914 and the 1922 Acts.
But there is no real precedent for the circumstances in which this Bill is seeking to grant indemnity, because the Union is at peace. We are not at war. And the Union was not at war in the period which this indemnity covers. It covers an incident that took place over less than half a minute on a particular day, and it now seeks to cover with blanket provision certain other things of which this House is completely unaware.
And the 1914 Act did not take 15 months to pass.
No. it was introduced as soon as possible, when Parliament met.
It covered the period up to its promulgation.
The hon. the Minister referred to another authority to support him, namely, Henry John May’s South African Constitution, and he read the following extract—
But that really supports the point of view of this side of the House. We are assisting the hon. the Minister to protect all those persons who are cited in this Bill under sub-clauses (c), (d) and (e); that is, members of the Defence Force, persons employed in the Public Service or other services, the Police Forces, persons acting under the authority or direction or approval of any officer referred to in the previous clause. But Henry John May goes even further and he says this—
This particular quotation I have just read is an extract which the learned author has made from a judgment of Chief Justice Innes in what is known as Krohn’s case, decided in 1914 in the Appellate Division at page 197. If one reads further of what May says—and that is what the hon. the Minister relies on …
What page are you quoting from?
I am reading now from the second edition of May. I have just read from page 274. The Minister quoted entirely different page numbers because, I presume, he had a different edition. I now quote from page 275—
An Act of Indemnity, Dicey says, though it is the legislation of illegality is also, it should be noted, itself a law. He says—
In no case in these authorities do we find any reference to the absolution of the State or the executive from its normal responsibility to the subject. And that is a very important issue here.
If the hon. the Minister wishes to support a Bill on precedents which he quotes, he must stand or fall by those precedents. He must stand or fall by the authorities he quotes to us. There is a very important reason why we find such a scarcity of Acts of Indemnity in the two countries in the world to which I have referred, and to which we in our legal system have often applied for references and precedents in our legal structure. It is because these countries view with a great deal of caution any interference with the liberty or the rights of the subject. One would have expected that in the two countries I have mentioned, which have passed through many vicissitudes over the centuries, that if it is a routine to be adopted, there would be many more examples of Acts of Indemnity. Even the hon. the Minister, although talking of a number of examples, was able to quote only one example and then, if I may say so, he was not able to satisfy this House because it did not support the case he wished to put up.
I do not wish to refer again—because it has been referred to by previous speakers on this side of the House—to these important matters which gave rise to the other chain of circumstances which gave rise to this Bill coming before this House; those are the incidents at Langa and at Sharpeville. However, I do want to say that it is important, in our system of law, that we must preserve the rule of law and we must maintain the spirit of justice and the highest standard of justice in order to maintain the pillars of our legal structure in this country and the system of Western civilization to which we are inextricably wedded. I do not think that the hon. the Minister would challenge that point of view. I think that as Minister of Justice that is his objective. But if he is to take the powers which he is seeking in terms of this Bill, he is leaving any assistance, to which he has referred, purely to the generosity of the State, to the servants of the State to deal with on behalf of the State, and so he is removing from the minds of the citizens that sense of impartiality which justice demands; that sense of impartiality which our courts maintain as the measure of justice which they dispense to the citizen. That is the important issue, Mr. Speaker, and for that reason we feel that the hon. the Minister is going too far when he asks that the State President and the Executive Council be absolved from all responsibility. In asking that he is, in effect, asking that the State should be absolved from any action that may be taken against them.
One of the grounds the Minister has used in justifying that approach is that a number of cases—and I think he quoted some 200 to 300—would involve the State in considerable expense. But there is a precedent. I think it is in the 1914 Act, or rather an amendment which was then suggested to that Act that there is precedent whereby the Minister could bring legislation before this House to suspend action pending a full investigation of what has taken place, or of the act against which it wishes to indemnify the persons sought to be protected; the persons who were carrying out what ostensibly was their duty in good faith, as provided for in the Bill. The Minister could take many forms of action, through legislation, in order to avoid these acts proceeding immediately. He could even, because of the very similarity of the causes of action, for instance, have a test case. That would enable the courts to give a decision as to the extent to which the State would be liable. There are many methods which could be employed to avoid what the hon. the Minister apparently fears, and that is mulcting the State in a considerable amount of costs. But then his conscience would be clear because there would be no question of any suggestion that we are denying people, who have every justification in placing a claim before the courts, from access to those courts. He would not be denying them their ordinary rights of justice and his conscience would be clear of any suggestion that he is denying to the citizens of the country the rights to which they are entitled under the rule of law.
Mr. Sneaker, our appeal is that the hon. the Minister should meet the opposition in this respect. It is a reasonable request. It is a request which can do no discredit to the state and can bring nothing but a great deal of credit to the Minister himself. As a Parliament we are prepared to see that those who carry out their duty on behalf of the state are protected. But we also wish to see that the citizen of the country is fully protected, and in that respect the state must bear its responsibility. The state must squarely face up to issues which have arisen and issues which can, through their full examination in the light of the law, through our courts, vindicate the standard of justice in our country.
Mr. Speaker, if I understand the arguments of the Opposition aright, then they fall under three headings. We heard the first the other day when the debate started, namely that these disturbances were the result of an incorrect policy. Consequently, the state must bear the responsibility. I want to reply to that at a later stage. The second is that if we in this Parliament give the Government or the State this indemnity, it will merely be the green light for the authorities to abuse their powers on another occasion. And then in conclusion there is the argument of the hon. member for Bezuidenhout (Mr. Miller), namely that we are not really dealing with a case in this instance where we should grant such an indemnity because the hon. the Minister has relied on precedents which are not analogous. I want to deal with that argument first.
I agree with the hon. member that in the Anglo-Saxon world there are very few analogies or very few examples. But the reason why that is so is not the reason which he has given. In various parts of the world and at various times Great Britain has set the world alight with wars. On occasions she has evoked those wars, on other occasions she has not done so. but they have been forced upon her. But in England itself they have never needed to declare martial law because they have practically never felt a war at home themselves. The first time was Napoleon’s blockade, and the other occasions were the last two wars, and the most recent war was the only one in which they felt the effect directly themselves.
They have had strikes.
But let us examine carefully why martial law was not declared. Martial law was not declared because there was no need to do so and because there was never an emergency, even if there were strikes. That is the reason. When an emergency arose, in the idiom of those times, a state of emergency was referred to as martial law. martial law was declared. In other countries they said that it was a state of siege. It is a question of words, but we must examine the essential meaning. I leave America at that. We take our own country. You know, Mr. Speaker, that since 1688—if we take the position from that date onwards—South Africa has had more high treason trials than England. If we take the position from 1800. then there have been more high treason trials after the proclamation of martial law in this country than in any other part of the British world. That is because the authorities sporadically felt that they were faced with an emergency. I am merely putting the facts.
When the hon. member for Bezuidenhout says that what happened then and to-day are not analogous, then I say that he is giving an interpretation to history which is false. I go further and say that as far as our own country is concerned, all the indemnification laws which we have had here are exact analogies. They have all arisen and come about as a result of a state of emergency— whether it was rebellion, foreign wars, a foreign enemy which threatened the internal security, strikes, or disturbances which were brought about by agitators for various motives, does not matter. If there is an emergency, the state is entitled to declare a state of emergency. It does not matter what we call it. It does not matter whether we call it martial law in the old idiom or whether we call it a state of emergency in the words used by the Public Safety Act of 1953. It does not matter.
It is not even necessary for the state to declare martial law. The hon. member has read from Halsbury. Allow me to tell him that I attach far more importance to what our own courts have said on this point, and I should very much like to tell him what our own judges have said in respect of martial law. Martial law is merely another name for the state’s right of self-defence. That is what Judge Solomon said in the case of Regina v. Bekker & Naude. Bekker & Naude were two Cape rebels, and this is what the learned Judge said—
Consequently, to tell the House that at that time there was martial law, but in this instance there was not martial law, and that an indemnity was approved of and granted at that time for that reason, but should not be granted to-day because of the absence of martial law, is to play with words. The fact of the matter is that it makes no difference whether or not there was martial law. The question is: Was there an emergency or not? If we had an emergency here in 1960, then the state was entitled to take emergency measures.
But what about the long period?
I should like to deal with all the points raised by the hon. member for Bezuidenhout if he would just not interrupt me because then he may put me off my stroke and then he will not have the dubious benefit of my knowledge and my speech. I go further. The Judge said—
The hon. member knows what that means: The safety of the state is the supreme law. And Chief Justice Innes, who also has a great reputation—certainly a greater one in this country than Halsbury—said as follows—
Thus I could continue. The question is merely whether or not there was a state of emergency and it is completely irrelevant whether or not it was analogous. We in this country are entitled to protect the republic against every action which threatens its security, its peace and its order and we are obliged to use all the means at our disposal in order to maintain that law and order. And, Mr. Speaker, if we do not do so, then hon. members opposite will be entitled, no, they will be obliged to criticize us on these benches for not having done our duty. They will be entitled to move a motion of no-confidence and to say that the country and the republic have no confidence in our ability to maintain law and order. And now that the Minister has done so, they are not satisfied that that has been done.
At 10.25 p.m., the business under consideration was interrupted by Mr. Speaker in accordance with Standing Order No. 26 (1), and the debate was adjourned until 8 June.
The House adjourned at