House of Assembly: Vol1 - THURSDAY 22 JUNE 1961
Mr. SPEAKER took the Chair at
- (1) That as from Thursday, 22 June, Standing Order No. 26 (Automatic Adjournment at 10.30 p.m.) be suspended for the remainder of the Session; and
- (2) that Saturday, 24 June, shall be included as a sitting day, Government business to have precedence; and on that day the House shall meet at Ten o’clock a.m. and business shall be suspended at a Quarter to One o’clock p.m. and resumed at a Quarter-past Two o’clock p.m.
As far as sitting on Saturday is concerned, may I just remind the House that it is customary to sit on the last Saturday of a Session. We intended sitting last Saturday as agreed earlier in the Session when a certain Thursday was a holiday and members requested that we did not sit that Friday so that they could have a long weekend. We agreed to that on the understanding that the House would sit on an earlier Saturday. It was accordingly the intention to sit last Saturday but it was found unnecessary to do so. As far as the suspension of the eleven o’clock rule is concerned, that will probably only apply to this evening. It is not the intention to have an all-night sitting, but as I said when I gave notice of this motion, it is simply to enable us to dispose of a measure which is nearly finished. In that way the particular stage of a measure will be disposed of. We will only avail ourselves of the suspension of the rule when such an occasion arises. The idea is not to keep hon. members here late in the evenings.
We have no objection to the second paragraph of the motion now before the House, because, as the hon. Leader of the House quite rightly said, there was an understanding earlier in the Session when on the Friday of the Ascension weekend, members were given off on the understanding that the House would then sit on a Saturday to make up for that Friday. We have, therefore, no objection to sitting on Saturday of this week.
In regard to the first part of the motion, however, I would like to move as an amendment “to omit paragraph (1)”. I do so, Sir, as a protest against what I think is a serious situation created in this Parliament. We have had the spectacle this Session of a flood of legislation having been brought forward at a very late stage. In the last few days, since we have started with morning sittings, there have been no less than 12 Bills of which notice has been given. In this connection I want to congratulate the hon. the Leader of the House that there is no notice of another Bill on the Order Paper for to-day, because this is the first day for quite a long time that we are not having a motion for the introduction of a Bill on the Order Paper. Introducing legislation in this way is quite wrong. But it is even more than that—it show a contempt of Parliament. Some of the Bills lately introduced are of a heavy nature and here I refer particularly to more recent Bills like the Urban Bantu Councils Bill, and the Liquor Bill which also came up fairly recently. Just before we started morning sittings, we were given a list of some 33 Bills and were told that some of them were quite innocent Bills and therefore non-contentious. Events have not proved that to be the case. It is true that some of them are non-contentious. but even with non-contentious or apparently non-contentious Bills, I do not think the public has had sufficient time to see them and note what the intentions of the Government are. On the Order Paper for to-day there is a short Bill called the Revenue Laws Amendment Bill but which deals with important matters such as estate duties without there being any time forus to find out what the implications thereof are and what the position is with outside interests. That is true of most of the legislation which has been placed before the House this Session. There is not time too study Bills adequately, and we are asked to legislate by sheer physical exhaustion. Not sufficient notice is being given to parties outside having an interest in these Bills.
Another significant feature which has brought about the necessity to suspend the “eleven o’clock” rule, is the time taken up with certain measures in committee because the Government refuses to send measures to Select Committees. There were many measures this Session which could have been dealt with more expeditiously and could have been improved upon, had they been sent to a Select Committee. An outstanding example in this respect is the Water Bill. I do not think any member in this House, having listened to the debate on the Water Bill, can deny that that Bill should have gone to a Select Committee. The original Bill introduced during a previous session did go to a Select Committee and took only two or three hours to pass this House in contrast to the long time taken on the Water Bill this Session. There was another Bill, namely the South African Citizenship Amendment Bill which was eminently suitable to be considered by a Select Committee where the intricate legal questions involved could have been clarified. As it is, we are abusing the Committee Stage in that we are trying to make a Select Committee of the House as a whole. There are more Bills which can be mentioned in this respect. It may be said that it is habitual to suspend the “eleven o’clock” rule at the end of a session, but I do not think that is an excuse for not giving timely notice of legislation. Members will recollect that early in the first half of the Session there were many nights on which this House did not sit and it was a patent fact that the Government was not ready with its legislation and had the Opposition not done its duty instead of saying that it agreed to the legislation then before the House, there would have been days when the House would not have been able to sit because of lack of legislative proposals. There is also another difficulty which constitutes an added burden on the Opposition, namely the new system of introducing legislation in the Other Place, thereby changing it from being a House of review to a House which deals with and initiates legislation in the first place, it only thereafter coming to this House. Just as an aside, Mr. Speaker, I would like to ask whether that system should not be reconsidered. Is it really working? I doubt it very much.
In conclusion, I would like to point out that there were suggestions from time to time with a view to remedying the position we get at the end of sessions, a position which is caused largely by legislation being introduced at short notice and by the piling up of Bills at the end of a session. This Session has been extraordinary in this respect. I would like to suggest that some consideration be given to dividing the session in future, that is, to have a session early in the year where we can deal with Bills on financial matters and where notice can be given of other legislation the Government intends passing and to do this at a legislative session in the second half of the year. That would, I believe, go a long way towards alleviating the difficulties in which we find ourselves now. I know you will not allow me to embroider that subject, Mr. Speaker, but I raise this just in order to put a few stitches into the fabric of my speech so that members may think this matter over, because I do believe it contains a remedy for the position which we find ourselves in this morning. I can only say in conclusion that this side of the House protests at the way in which legislation is being passed by way of sheer physical exhaustion without there being time to consider it in a proper manner.
I second the amendment moved by the hon. member for Von Brandis (Mr. Higgerty). I think it is unfortunate that the hon. leader of the House did not, when he introduced this motion, inform the House whether it was the intention of the Government to go through with all the legislative measures appearing on the Order Paper for to-day. One would have expected him, in moving such a motion at this time in the Session, to give some indication of what the Government intends doing with all the matters still on the Order Paper, particularly as some of them have been introduced at such a late stage. It is our responsibility as legislators not only to consider the legislation in this House, but also to consult with the parties affected. There is, for instance, the Income Tax Bill which has been introduced at a very late stage in the Session, leaving virtually no time for consultation with interested parties. We did ask the hon. Minister of Finance earlier in the Session when we could expect this particular Bill and he then indicated the end of April, but when questioned about it later, he said the end of May. It was, however, not until a few days ago that we got this Bill for the first time. It is a lengthy Bill which introduces new principles and yet we have had barely sufficient time to consult with only one or two outside bodies interested therein. A closer examination of the Bill indicates that far more consultation will be necessary. Since morning sittings started, we have had the Building Societies Bill. The hon. Minister of Finance may say, I know, that this is an agreed measure, but that is not the point, We should nevertheless have an opportunity of considering the Bill and consulting in regard thereto with parties who may be interested in it. Then there is another lengthy Bill, namely the Unit Trusts Control Amendment Bill. Only this morning I was approached by people who asked whether this Bill was going to be proceeded with this Session. They indicated that it was quite impossible for them to consider it in less than a week. A big financial house.interested in unit securities, indicated that it would necessitate at least one week of discussion because people from various parts of the country would have to be brought to Cape Town to discuss it with them before its case could be adequately put.
I do not intend covering all the legislation on the Order Paper and I only give these Bills as examples of legislation still on the Order Paper and which we still have to consider. I would like the hon. Minister to indicate in his reply whether it is the intention of the. Government to proceed with all this legislation this Session. It is quite unfair to this House, to members of the staff and the public, to proceed with legislation in this way in the dying days of a session when extended hours are already being worked, leaving little time to consider the legislative measures themselves and to do our duty as legislators in this House.
I want to be brief because I only want to reinforce what was said by the hon. member for Von Brandis (Mr. Higgerty), our Chief Whip, when he moved this amendment. I see from the Order Paper that there are still some 21 Bills to be dealt with and in this connection I want to deal particularly with the hon. member’s comments in regard to the practice which has grown up of introducing legislation into the Other Place. We had hoped that that procedure would assist us, but it is in fact becoming a great hindrance, because the Bills which are introduced into this House, we can keep in touch with, but with those which are introduced simultaneously into the Other Place, it is impossible for us to keep in touch.
Order! The hon. member is going very far now.
But this is a matter, Mr. Speaker, which leads to our Order Paper being piled up. I am jealous of the true position of Parliament as a legislative body.
Order! That is not relevant to the motion.
I am dealing, Sir, with the motion of the hon. leader of the House to suspend the automatic adjournment rule on Thursday, Friday and Saturday. I want to register my protest because it is impossible to give proper time and attention to the Bills even now on the Order Paper, and if we have to sit next week, then we sit next week. I want to emphasize with the utmost power at my command, that it is wrong for a date to be fixed, a pre-determined date, on which Parliament will rise, because the various Bills are then forced through at the cost of the physical exhaustion of members. That is not the way for us to deal with legislation in Parliament, Sir. We should be dealing with it in an adequate manner so that we should be able to apply our best judgment to what is before us. The hon. Chief Whip of the Government, Sir, laughs.
I am friendly and not like you.
He is laughing, Sir. I am not only jealous of the reputation of Parliament, but I want to see Parliament getting an opportunity to consider legislation properly. Now, this is not the way in which Parliament can do its work properly. I want to repeat, therefore, that if it is necessary for the legislation still on the Order Paper to be dealt with this Session and that the Session shall have to be extended into next week, then let it go over to next week. That would be the way to go about things and not to work us to exhaustion at night. [Interjections.] This is not a joking matter, Mr. Speaker. Hon. members opposite are going to sit there and not even take part in the debates. That is what we have become accustomed to, while we have to debate these measures and detect the flaws in the legislation. The effectiveness of this has been shown by the number of amendments which have been accepted by Ministers in respect of legislation which has recently been thrust upon us. I want to register my protest, because that is not the way in which Parliament can do its work properly and, under these circumstances, we must oppose any attempt to make us sit until physical exhaustion in order to allow the Government to get legislation through.
No body of men in a parliamentary system but has difficulty in balancing the work of a session in order to make it possible to work at an even tempo throughout the session. That we concede. There is always the tendency for a session to commence at a relatively easy pace and for the weight of the work to come on later. That is conceded. Nevertheless it is the duty of the Government to plan its programme as best it can in order to ensure that the work tempo is as even as possible and adequate consideration can be given to the work to be done. Compared with the other members who have so far taken part in the debate, I am a relatively young member of this House, but I have noticed that there is a tendency for sessions to last the same period irrespective of the weight of the legislative programme and irrespective of the events which may occur in the country and which add to the responsibility of Members of Parliament. This is a problem which is a difficult one also in other countries, but is particularly complicated here in that we come long distances in order to attend the sessions. There is a tendency, therefore, amongst individual members to plan their responsibilities to this House in relation to other responsibilities. We should be willing to consider a degree of flexibility in the duration of a session in proportion to the weight of the legislative programme before us. It is clear that during this Session events have occurred which were of amagnitude demanding from us additional consideration, in addition to consideration of the routine legislative programme. I do not want to repeat arguments already used, but much of the legislative measures still on the Order Paper are typical Committee Stage measures. I think members will agree that it is at the Committee Stage that most of the important work of Parliament is done although the discussions during that stage may not always be so interesting and spectacular as are discussions during other stages. Let us take the Liquor Bill as only one example. This is a Bill which is typically a Committee Stage Bill and had it come earlier in the Session, no member would have denied even excessive discussion thereof at the Committee Stage, because it is such an important Bill and this House should give its best attention to the details thereof.
I do not want to say any more on this score. I want to add my protest to those already made. There is no one of us here who do not wish to avoid the long hours following upon morning sittings, but when we add to this the still longer hours due to the way in which Bills are being introduced late in the Session our task becomes almost an impossible one. And as such it gives rise to the necessity of coming back to Parliament with amending legislation because we did not have sufficient time and opportunity to apply our minds to the original legislation. I appreciate the difficulties of the leader of the House. but I think consideration should be given—and that is the responsibility of the Government—to the time at which we could more usefully assume the added burden during a session and when it comes to a question of further extending the hours of sitting, it suggests that the Government has not fully realized the consequences of the legislation put before Parliament. For these reasons we on this side support the amendment moved by the hon. Chief Whip of the official Opposition.
I should like to make a suggestion with a view to making it unnecessary for the hon. the Leader of the House to move the type of motion he has just moved, and with a view to removing any uncertainty which may exist at the end of a session. I am doing so for the sake of the relationship between the Executive Power and the Legislative Power. I think it is obvious that for the national machine to operate smoothly—speaking from a parliamentary point of view—that relationship should be as good as possible. When private members’ days are done away with, the onus rests exclusively on the Executive Power to see to it that Parliament is kept busy with legislative measures. It is expecting too much to ask Members of Parliament and members of the Other Place to consider a mass of new legislation towards the end of a session when they are already required to sit continuously for 12 to 13 hours.
During the past few days we have noticed a number of complicated financial measures on the Order Paper for the first time. Many of those measures are so complicated and amend so many other Acts that it was considered necessary to elucidate them by way of White Papers. The Revenue Laws Amendment Bill consists of 18 clauses and there is a White Paper on that. The Income Tax Bill consists of 35 clauses together with a White Paper and then there is the Finance Bill with 19 clauses. The Unit Trusts Amendment Bill consists of 43 clauses with an 18-page White Paper. A fair test would be to ask hon. members opposite how many of them can lay their hand on their heart and say that they have read those White Papers and that they have had time to read them. On this side of the House only one or two members could give attention to them because we had to allocate the work because time does not permit of the ordinary member attending to them. The Executive Power which is responsible for submitting legislative measures to Parliament is not only treating Parliament with contempt but it is making the work of Parliament as ineffective as possible. For that reason I think it would be better if we did away with this system of hurrying at the end of a session and evolved some other system. Hon. members find themselves in a very difficult position. Many of them have already reserved their seats on aeroplanes and trains but they have had to cancel their reservations. The first question everybody asks in the lobby is: “When are we going home?” All you can do, Sir, is to put the same question to another member but nobody knows. Would it not be better when we approach the end of a session—a month or two before the date on which Parliament usually prorogues—for the Government to decide in advance what the remaining legislative programme for that session is to be, that they make that known and that the Whips then decide amongst themselves how much time should be allocated to each measure so that we can have an accurate estimate of when Parliament will rise? In other words, we should introduce a time table in respect of the last three weeks of a session, a time table that will be determined by the legislative programme of the Government. But to inundate Parliament with work as it has been recently, is to make a farce of our parliamentary institution.
Will you not regard the time table as a guillotine?
There is a big difference between a time table which has been drawn up by agreement between the parties and a guillotine which is forced on to the minority by the majority. There is only one thing that is less harmful to our parliamentary institution than the guillotine, and that is to legislate by a process of exhaustion as we are doing at the moment. We should try to avoid that. I am convinced that the hon. Leader of the House who is an experienced parliamentarian, somebody who has proved that he has respect for our parliamentary institution,does not feel happy about this position and I trust, therefore, that he will take the initiative and try to arrange the work better towards the end of a session, than it is to-day.
I should like to raise another aspect of this matter. The whole of the parliamentary system is based upon debate from both sides of the chamber…
On a point of order, Mr. Speaker, this motion is to decide whether we will sit after 10.30 in the evenings. I want to draw your attention to the fact that hon. members are going very far afield in the discussion of this motion. The hon. member now wants to discuss parliamentary system, and the previous speakers also spoke on subjects which had nothing to do with the motion, which is the fact that we are going to sit after 10.30. We are getting very far away from the point under consideration.
On the point of order raised by the hon. the Leader of the House, may I put it to you, Mr. Speaker, that the motion is to extend the time in which to do our work as parliamentarians. The hon. the Leader of the House is saying, in effect, that if we do stop at 10.30 to-night we may not be able to complete that work…
Order, order! That is not a point of order. The hon. member for Springs (Mr. Tucker) must confine himself to the motion and to the amendment.
Mr. Speaker, I hope you will assist me by stopping me if I go wrong…
I can give the hon. member that assurance.
Thank you, Sir. The point I wish to make is this: I want to bring to the attention of the hon. the Leader of the House that as a result of the tremendous volume of legislation which we have before us at the present time, it has been necessary for the Government to stop their own members from taking any part whatsoever in the discussions on these Bills…
Order, order! I must assist the hon. member now and tell him he is out of order.
Thank you, Sir. I do not wish to protract the debate unnecessarily, and I would merely like to add my protest to those of the hon. members who have already spoken. I can only express the hope that the Government is going to make it possible in future for members, not only on this side, but on their own side of the House, to do the duty for which they are sent to Parliament.
The hon. the Leader of the House is usually very meticulous when handing the work that is to come before us, and the programme for each week as it comes forward…
Order, order! The hon. member must come straight to the motion and to the amendment.
Mr. Speaker, when the hon. the Leader of the House introduced this motion this morning he gave no indication as to how far down the Order Paper we were likely to go before the end of the Session.
Order! That point has already been made.
The point I want to make is that we have 16 items which appear to be essential to handle before the end of this Session. On those 16 items there are at least ten second readings yet to come, with the possibility of 13 Committee Stages and 16 third readings. That indicates that if the Government wishes to conclude the Session on Saturday it will be necessary, not merely to suspend the 10.30 rule but to have continuous sittings right through. And that would possibly mean that we could not take more than the one stage. We are therefore faced with this position, that because of the lack of precise information offered to us by the Leader of the House in introducing this motion, we may be wasting further time, because some of these Bills may be dropped. We do not know. That is why I think the point made by the Chief Whip of this side of the House, that if the Leader of the House had given that information at the beginning, we could have saved a lot of time, is quite correct. In conclusion, the other point I want to make is that because a lot of these Bills may appear to be non-contentious, I think it should be appreciated, not only in the House but outside…
Order! That point has already been made.
Mr. Speaker, the preliminary work in discovering whether or not those Bills are non-contentious has still to be done. I therefore say it is unfair that we should not know at this stage how many of these Bills are yet to be proceeded with, in debating this matter.
I will be careful to keep within the terms of your ruling. The reason for the Leader of the House introducing this motion is to get a heavy legislative programme through this House. I hope, Sir, you will permit me then to support the plea of the hon. member for Pinetown (Mr. Hopewell) that the hon. the Leader of the House should inform us precisely which Bills are going to be dealt with.
Order! I think if the hon.member will allow the hon. Leader of the House to give the information, he will do so. It is no good one hon. member after another taking up the time of the House asking for information when, I think, the hon. Leader of the House is very anxious to give that information.
We fear, Sir, he may add to the lists of those Bills which are not going to be taken, because we are reaching the stage of legislation by exhaustion. The financial functions of Parliament are, of course, very important. They are particularly important to an Opposition. I would therefore plead with the hon. the Minister not only to give us this information but to bring it within workable limitations.
Order, order! That point has been made three or four times.
Upon which the House divided:
Ayes—83: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Dönges, T. E.; du Plessis, H. R. H.; Erasmus, F. C.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Grobler, M. S. F.; Hertzog, A.; Jonker, A. H.; Jurgens, J.C.; Keyter, H. C. A.; Knobel, G. J.; Kotze,G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Luttig,H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, J. A. F.; Nel, M.D. C. de W.; 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.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Strydom,G. H. F.; Treurnicht, N. F.; Uys, D. C.H.; 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 Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Webster, A.
Tellers: J. J. Fouché D. J. Potgieter.
Noes—45: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Butcher, R. R.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Beer, Z. J.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Eglin, C. W.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Miller, H.; Mitchell, D. E.; Moore, P.A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Shearer, O. L.; Smit, D. L.; Steenamp, L. S.; Steyn, S. J. M.; Steytler, J. van A.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: N. G. Eaton, A. Hopewell.
I do not want to occupy the time of the House because it has already been occupied to such a large extent by these people who are suffering from sheer physical exhaustion that I would not like to impose another long speech upon them.
Order! The hon. the Leader of the House should not refer to members as “these people” but as “hon. members”.
I beg their pardon, Sir. I did not realize that one must refer to them in parliamentary terms and not as one would ordinarily refer to them. But the sheer physical exhaustion from which they are suffering is perhaps one of the reasons why Parliament will have to sit for a few extra days. We have no objection to Parliament sitting into next week. It is not as the hon. member for Natal (South Coast) (Mr. Mitchell) has said, that the Government has said Parliament shall stop on Saturday. We have never said anything of the sort.
You told your own people that.
What we said was that after consultation with the Whips we thought it probable that Parliament would end on Saturday, and we made arrangements accordingly. But if hon. members who are now so active in their exhaustion wish to keep the House here longer, we are perfectly willing.
Then there is the other question as to why I did not inform the House as to what matters on the Order Paper the Government wanted to put through this Session. Hon. members should know that this is always done in the reply to this debate. It is always done, when this motion is moved to sit on Saturday, in that manner. The Chief Whip of the Opposition generally asks what work Parliament still wants to do, and that information is given in the reply. And I am going to give that reply. We wish to go at least as far as Order No. 15.
Are you going any further if you can? You say “at least”.
If we can, yes. And the 16th Order will also be taken if the Opposition wishes. I know that there are certain hon. members on the Opposition side who are very keen that this should be passed, and if it can be fitted in we are willing to do so. We are quite willing to meet the Opposition in their desire that the 16th Order should be adopted. That, however, is a question which we can discuss. With regard to the fury evinced by hon. members, their anger and their disappointment about this method of introducing a lot of legislation during the last week of the Session, and imposing this on an already exhausted House, you will excuse me, Mr. Speaker, if I am rather cynical about those speeches which we have heard to-day. I have heard about 32 similar speeches since I have been in Parliament, and I have taken part in a large number of them myself. There is very little difference between the speeches that are made by this Opposition and those which were made by the party which I belonged to when we were in Opposition, except that the speeches we made at that time were a little better than those we have heard to-day. With our ordinary parliamentary procedure, all Governments have tried—and I think all Governments since Union, and in most parliaments of the world have tried to devise a system whereby you do not get a rush of legislation at the end of the Session, and all Governments seem to have found it impossible to do so. One of the reasons is that a large amount of legislation which has been introduced late in the Session is financial legislation which has to be introduced after the Budget has been accepted. It is not legislation standing by itself, but is designed to give effect to resolutions passed by this House in the Budget debate. And that is inevitable.
As I have said, I think all Governments have sincerely tried to remedy this position but none have been able to do it. It seems to me that this is just one of the difficulties of parliamentary government. There is really no necessity, as I say, for hon. members to get so upset about it, just as there was very little necessity for my party, when we were in Opposition, to get as upset about it as we did—although, I repeat, we did it in a more efficient way.
May I ask the hon. the Minister if he intends to take Order No. 25?
Question put: That paragraph (1), proposed to be omitted, stand part of the motion.
Upon which the House divided.
Ayes—84: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Coertze, L. I.; Coertzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Dönges, T. E.; du Plessis, H. R. H.; Erasmus, F. C.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Grobler, M. S. F.; Hertzog, A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; 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.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, G. P.; van den Berg, M. J.; van den Heever, D. J. G.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo. A. H.; Webster, A.; Wentzel, J. J.
Tellers: J. J. Fouché and D. J. Potgieter.
Noes—47: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Butcher, R. R.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Beer, Z. J.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Eglin, C. W.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. 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.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Steytler, J. van A.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Question affirmed and the amendment negatived.
Original motion accordingly agreed to.
First Order read: House to go into Committee on Medical, Dental and Pharmacy Amendment Bill.
House in Committee:
On Clause 5,
I am going to appeal to the hon. the Minister of Health to withdraw this clause. This clause lays down that a doctor cannot take out teeth of a patient except in cases of emergency or where no dentist is readily available. I believe that when the Medical Council discussed this clause there was some division of opinion about it. I cannot see the reason for this. What this clause lays down is actually this, that at five minutes to five a doctor may not take out the teeth of a patient, but that at five minutes after five he may do so if a dentist is not readily available or if it is a case of emergency. What is this going to mean in practice? It is going to mean that a patient is going to come to a doctor at, say, six or seven o’clock in the evening and tell him that he is suffering from terrible toothache. The doctor will then have to decide for himself whether this is a case of emergency and, naturally, he will decide that it is not, because I have never heard of a patient dying of toothache. The doctor will prescribe a sedative to the patient who will then have to go home and wait until the next morning to have the tooth extracted. So the poor patient will then have to pay twice. He will have to pay for going to the doctor and getting a sedative to get him through the night, and he will have to pay for going to the dentist at nine o’clock next morning and having the tooth extracted.
There is also the case of small villages in which there is no dentist but where there is a dentist readily available within, say, a radius of 25 miles on a tarred road. That patient will have to wait until the next morning. He has a car so that he can readily go to the dentist, and that will mean that a doctor will again have to decide whether it is a case of emergency or not. Mr. Chairman, this is bad legislation. The Bill does not even lay down clearly under what conditions a doctor may take out a tooth or under what conditions he may not extract that tooth.
I am also thinking of the non-European patients who to-day go to clinics. They go to the doctors at the clinics who take out their teeth and make a change of 5s. In that case the doctors will also have to rule that it is not a case of emergency, and these non-Europeans will then have to go the extra ten or 11 miles to a dentist to have their teeth extracted. I cannot see the reason for this clause. I have been told that there are medical men who have their rooms in the same buildings in which dentists have their rooms. They say that they cannot see why they should take the livelihood out of the mouths of these poor dentists, why they should take out the teeth and not allow the patient to go to the dentist next door. But again, it is the patient who is suffering. He will have to pay for going to the doctor because he has a pain in his mouth; he will not know whether it is a tooth that needs extracting so he will have to go to the doctor and pay the doctor’s fee. The doctor will then refer him to the dentist across the passage, and again it is the poor ordinary person who has to suffer and pay twice.
We know that of late fees have increased tremendously and many people are finding it almost impossible to pay the amounts that are asked. I therefore appeal to the hon. the Minister to withdraw this clause because I cannot see the sense of it. As I have said, the Medical Council itself was divided on this question. I cannot see how at five minutes to five a doctor is held to be incapable of taking out a tooth but at five minutes after five, if it is interpreted that way, because the dentist has shut up shop, the doctor may take out that same tooth.
I am bound to say that I cannot quite see the purpose which this amendment is intending to achieve. The position as I understand it is that a doctor may now pull a tooth out. There is a suggestion that they have been overdoing it. The idea is now to make this amendment saying that they should not extract teeth. But quite clearly, it was found impossible to do that, so the amendment is being made to say that he must not pull a tooth out except in cases of emergency or where no dentist is readily available. To me that clause means precisely nothing. It means that doctors will continue to pull teeth out, because the emergency can depend entirely on how you look at the matter. If I have a frightfully swollen face it is an emergency as far as I am concerned. But the doctor may or may not agree with me that it is an emergency. If he does, out comes my tooth. Whether the Attorney-General, when he gets the papers to decide whether to put the doctor in gaol for having broken the law or not, will also regard it as an emergency is another matter altogether.
As far as I can see, Mr. Chairman, the only man without a worry in this amendment is the hon. the Minister of Justice, because when he has toothache he merely declares a state of emergency and tells the doctor to get on with the job. But for the rest of us I cannot see that this amendment is going to achieve anything at all. That being so, to put a vague proposition in here that the doctor can continue to pull teeth out if he thinks it is an emergency is, I think, bad legislation. The present position is that he can pull a tooth out if he is asked to do so and that applies particularly, as the hon. member for Drakensberg (Mrs. S. M. van Niekerk) has said, to the non-Europeans. I must say I think it would be much better to leave the original words as they stand and not to worry about putting vague, embarrassing and useless amendments into the Act.
I also think this clause is quite unnecessary. In my experience the thing has sorted itself out on its own. Thereis no need for legislation to cover it. In the better class areas—let us call them that for purposes of argument—the average medical man does not want to extract teeth. He is so busy and his practice is usually sufficiently remunerative to make his approach to this particular problem that it is something which interferes with his practice. As the nature of a practice alters, until it comes down to the lower income groups so that position alters until you get to the stage where, in the very poor areas, I should imagine the average general practitioner now extracts many teeth for no charge at all because those people are his patients and he knows that in many cases they cannot afford to pay. But now that position is going to be altered for the poorer group. If they have to go to a town, even if they live on the outskirts of the bigger cities, it may be quite an undertaking for them to go into the city to find a dentist and, in many cases, in the bigger towns, to have to wait for some considerable time before having their teeth extracted. Then on top of that they have to pay the normal charges which we pay for such extractions. I admit there are cases where dentists do make a special reduction in fees for the extraction of teeth, but I do contend that, first of all, this is quite unnecessary because the position sorts itself out amongst the doctors themselves. Secondly, the only hardship it is going to bring about, if this clause goes through, will be visited upon the poorer classes who, in many instances, cannot afford to go to a dentist specifically for the purpose of one extraction. We know that many of the Natives and Coloureds never have a tooth filled. They let it go until it becomes an emergency, when they have to have it extracted because the nerve is exposed and they are in great pain. I believe that this clause is quite unnecessary and that the Minister should withdraw it, even if there were not agreement between the medical profession themselves. It is a petty little clause and no one will miss it.
I support this clause and I do so because I feel that the dental profession is entitled, because of their specialized period of training over five years, and at considerable cost, to have a measure of protection. It is in the interest of the dental profession to have this proviso in this clause, and it is also in the interest of the general public.
There is one aspect that has not been mentioned, namely this. In rural areas I believe that there is a shortage of dentists. Under the principal Act the medical man cannot perform anything appertaining to prosthetic dentistry. That necessitates patients who require dental treatment going into the larger urban areas and they have to cover a considerable distance at some expense. Under the existing legislation general practitioners in the rural areas are at liberty to perform any of the functions of dentists with the exception of prosthetic dentistry. What does that mean? The general practitioner makes inroads into the sphere of the specialized training of the dental surgeon, and it is because of that that dentists feel that there are no opportunities to open up practice in the rural areas which are some distance from the cities where the dentists are concentrated. I feel that this provision will be restricted only to an emergency or when the dentists is not readily available. I admit that those words are somewhat vague, but they do grant a certain latitude to the general practitioner and it does. not affect the public if these particular services are necessary. But the important point is that if dentists are encouraged and feel that a practice can be established some distance from the towns, that will be of interest to the general public, and this particular clause does not place a very rigid restriction on the practice of dentistry as enjoyed to-day by the general practitioner, and I therefore support the clause.
To compromise is not always the best thing to do, but the fact remains that where we are dealing with practical problems, to compromise is sometimes the only thing to do. I think this is an excellent compromise because I think the practical position is such that we cannot do anything else. It may be argued that the doctors do not have the necessary training and are consequently not in a position to offer the best service as far as the extraction of teeth is concerned. We must not forget, however, that particularly on the platte-land there are not dentists at every place. On the contrary, it is exceptional to find a dentist in a small town and for that reason the doctor should be placed in a position to do this work, even though he is not a trained dentist. There are many towns which lack the services of a dentist. It often happens that even if there is a dentist he may take ill or he may go on holiday in which case there is nobody to take his place. The opposite is also true. If there is a dentist it is only right that the man who has been specially trained and who has better equipment than the general medical practitioner, should do the work. It is fair towards the dentist and fair towards the patient that the patient should go to the dentist for treatment and not to the doctor. I think we have come to a very fine compromise. It has been stated that the poor person in particular cannot afford to go to a dentist and that he has to go to the doctor to have a tooth extracted. I wish to point out that there are many dentists who will be only too willing to help those people and to extract their teeth free of charge. The one aspect which worries me personally more than anything else is that teeth are too readily extracted. This person goes to the doctor, I have done so myself. To help them you extract the tooth, but I have often wondered… [Interjections.] The hon. member says it is a disgrace. Well, if that is the only disgraceful act I have ever committed in my life, I will be very happy. The fact of the matter is that you have no option but to extract that tooth whereas it might have been saved. I am convinced thatif those people were forced to go to a dentist, many of their teeth will be saved by simply filling them and we shall have a healthier community. If the patient cannot afford it, we shall have to find other methods. Some provision has been made for dental services. But I am convinced that the solution does not lie in only allowing the doctor to extract teeth because he is cheaper than the dentist, I think this is the only way we can do it. It is a kind of compromise between the dentist and the doctor and I think this is the only way of solving the matter satisfactorily.
The Minister in his second reading speech said that this was an agreed measure which had the backing of the Medical Council. But I am sure the Minister will now see from the objections raised that there is a strong body of opinion against this clause. The Minister knows that the Medical Council itself was very strongly divided on the matter. I hope that under the circumstances the Minister will see fit to agree to the deletion of this clause. There is a great shortage of dentists throughout the country and the position is further aggravated by the fact that many dentists discriminate in regard to the patients they take. Many refuse to take non-Whites, or take them only at certain hours. These are the people who will be prejudiced. While I recognize the arguments advanced by the hon. member for Pietermaritzburg (City) to the effect that this is a specialized profession, I suggest that the time for these people to come forward with a request of this kind is when there are sufficient numbers to deal with the problem. Particularly in the country districts you find in many cases that there is a real emergency and that the dentist concerned is in a position to pick a high-paying type of clientele and the poor people have to rely on the local doctor. I think it is most unfair to push a clause of this kind through in view not only of the opposition from people in the country districts but of the strong body of opposition in the Medical Council itself. It is a clause which is not wanted and I think the Minister’s first duty is to say to the Medical Council that they should take the matter in their own hands and introduce a certain measure of discipline amongst the members of the dental profession. The medical profession as a whole has a very fine record. Very seldom does one hear of a doctor refusing to help anyone, irrespective of race or colour. I am afraid that many of the dentists are not so fair-minded in their treatment of the public. I think the Minister should go back to the Medical Council and say that when the dentists as a whole maintain the same standard as the ordinary doctor, it is time for them, if they can show a good case, to come back to the House and ask for this protection. But when the Minister does ask for protection, he should put it in definite terms and not in the vague terms contained in this clause. But for the hon. member who has just sat down to say this is a compromise—I can only say it is a very vague compromise. I hope the Minister will agree to the deletion of the clause and ask the Medical Council to see to it that the dentists put their own house in order first.
I am not at all impressed by the arguments of the hon. member for Pietermaritzburg (City). This clause will only hit the poor man, particularly the non-White. If you want your motor car repaired, you do not take it to the blacksmith but to a mechanic. It is only the poor unfortunate man who cannot afford to go to a dentist who goes to these clinics. I have a clinic about half a mile from my house. Almost half the people going there go to have a tooth extracted, for which they pay 2s. Look at this in a fair-minded way and everyone must admit that the only person who will be hit by this clause is the poor man.
For the simple reason that no man who can afford it will go to a doctor to have his tooth extracted if he can go to a dentist. I would like to know from the Minister what he position is with regard to all these clinics.
Are there dentists available at these clinics?
No, but there is a dentist four miles away from my home in town and if I send my servant there it takes half a day, and they cannot afford to do it unless we take them in our motor cars. But at the clinic which is next door it does not take long. I suggest that if you look at it from the point of view of who is going to be hit by this clause, you will admit that it is the poor man.
I really think hon. members are dragging in irrelevant matters. The hon. member says that if this clause goes on to the Statute Book it will hit the poor man but what is the position in practise? Throughout South Africa local authorities are establishing clinics for the under-privileged and people have their teeth seen to at those clinics by dentists at a low fee and sometimes free of charge. If that statement is true, it means that we are accusing the dentists of charging more than a doctor to extract teeth. The hon. member for Drakensberg (Mrs. S. M. van Niekerk) came with the story that the patient first has to go to the doctor, pay his fee and then to the dentist and pay him a second fee. but I can assure her that that is not the position in practise. If he goes to the doctor and there is a dentist and it is a matter that requires the attention of the dentist the doctor does not charge him anything. He usually telephones the dentist and tells him that he is sending the patient to him.
That is during the day, but what about after hours?
The hon. member says that the doctor is not allowed to extract a tooth five to five but that he can do so five past five, but it has nothing to do with hours. The doctor may also extract that tooth after five if it is an emergency case and no dentist is available and if it is 25 minutes past five and there is a dentist in the town he is still available. There are two reasons why I think this is an important clause. The first is that the public is not yet sufficiently aware of the fact that their teeth should be properly cared for. This clause will assist in promoting the awareness on part of the public, particularly the non-White section, that they should care properly for their teeth, and that the tooth should not simply be extracted. I do not think we should in any way regard this clause as an attempt to take work away from the doctor and to give it to the dentist. It has never been the intention that a doctor should extract teeth unless it is necessary. I do not think the doctors regard that as their right. Neither can we pass legislation forbidding doctors from extracting teeth, because he is the family doctor and where no dentist is available and it is a case of emergency, it is his duty to extract teeth.
The real value of this clause lies in this that particularly in the case of platteland towns there are not as many dentists as there should be and the effect of this clause will be that the practice has developed in the course of time for the local doctor to extract teeth—all the dentists will not go to the big cities but they will also go to the small towns because this clause gives them the assurance that their work is not only to look after teeth and to make artificial dentures, but also to extract teeth. I think this clause imposes no heavy burdens. This clause does not mean that a persecution campaign will be conducted against the doctors.
How do you know that?
I know because of what happens in practise. There is no bad feeling or lack of co-operation between dentists and doctors; the relationship is of the best. The only effect will be that you also create that opportunity, because the position is to-day that dentists are not too anxious to settle in smaller places. All these arguments that it will involve the poor man in costs are unfounded. The clinics are there for the poor people, they receive free treatment there or pay very little. But this clause emphasizes the fact that we wish to emphasize in South Africa, namely that teeth should be attended to by somebody who is trained to do so. Let me state this clearly that doctors do so only in emergency cases and where no dentist is available. I do not think that this clause will create any problems. I think it will make more dentists available in the platteland.
The very arguments hon. members are now using in support of the clause, we as pharmacists have been using against them for many years and they would not accept it. The hon. members for Pietermaritzburg (City) and Vanderbijlpark used the argument that the effect of this clause will be to bring dentists more readily to practise in the platteland towns and it will put into the hands of the people best qualified to do the work now done by the ordinary doctor. We put up exactly the same areguments in regard to pharmacy and they would not accept it for years. Now they are using exactly the same arguments. I would like to assure them that I am going to preserve this Hansard very carefully indeed and I am going to use it to good effect. Their arguments are that this will encourage dentists to settle in the rural towns. If it does that, it is a good thing, but I think we have to offset the harm it will do and the facilities it will take away from the mass of the people. I believe that in its present form this is something which should be left to be worked out between the professions themselves.
I will preserve your Hansard as well.
My own feeling in regard to this clause is that Parliament is being asked to adjudicate on what is really a domestic matter between the dentists and the medical profession. The dentists are represented on the Medical Council. It seems to me that under the control system in force, and we know how rigid that system is and how carefully it is controlled, if the dentists feel that they have a legitimate grievance against the doctors for doing their work, their proper course is to take it to the Medical Council. Our statute book is being cluttered up with items of this sort.
Order! The hon. member must come back to the clause.
The clause in effect establishes job reservation for the extraction of teeth. I am completely in favour of anything that can be done to extend facilities to the small towns, but I want to quote the case of the town where there is no dentist. It might entail a journey of several miles by train, at expense to the patient. Surely the doctor can extract the teeth. Many illnesses flow from teeth. When you go to a doctor for treatment he finds the trouble is due to your teeth. Cannot we trust them to use their discretion? Therefore it seems to me that what we are being asked for in retaining this clause in the Bill is to adjudicate on something which professional men should easily be able to solve themselves.
Our objection to the clause is that it is bad law. Hon. members opposite have said that in cases where a dentist is not readily available—the hon. member for Simonstown has said that if he is seven miles away—it will be considered that such a dentist is not readily available. But who is going to judge whether the dentist is readily available or not?
If the doctor must decide, the clause is surely unnecessary. Then the patient will simply go to the doctor and he will decide whether the tooth should be extracted or whether he needs other care. The hon. member for Vanderbijlpark has said that this clause will result in more dentists going to the small towns. How silly can we be? If ten teeth are pulled in a day in a small town at £1 each, will that attract dentists to the small towns? It is said that the dentists do not go to the small towns because they cannot extract teeth at 2s. each. How silly can we be? This clause can place the medical practitioners in a very difficult position because they will have to judge whether they can or cannot extract a tooth and they will be exposing themselves to prosecution. The hon. member for Vanderbijlpark has referred to the wonderful relationship which exists between dentists and doctors. I accept that there is a sound relationship, but it is possible that there may be a bad relationship and that a man who lives 20 miles from a dentist and on a tarred road, can make a test case against the doctor. I want to prophesy that once there is a test case, the doctors will not touch a tooth. And who will suffer? The poor man. This is an absolutely unnecessary clause. The hon. member for Pietermaritzburg (City) has said that the doctor should not touch a tooth if a dentist is available. Do the dentists only want to reserve this work for themselves? I do not see the necessity for this provision.
I just want to thank the Opposition sincerely for wishing to protect my profession by allowing us to extract teeth, but I just want to tell them that we do not like to extract teeth unless it is necessary. The Medical Council has already discussed the matter and is satisfied that we do not wish to do so unless it is necessary. The hon. member for Drakensberg cannot tell us when we should extract teeth and when not. We shall decide for ourselves when it is a case of emergency and when a dentist is available, and the medical practitioner will still do his duty to his patient, as in the past. The hon. member for Odendaalsrus has said that he extracts teeth. I have also extracted teeth where necessary, and I want to tell the hon. member for Drakensberg that when I remove tonsils again and there is a bad milk tooth, I shall extract it even if 20 dentists are available in the town. It is not for the Opposition to prescribe to us when and how we should do this. We shall decide for ourselves what is essential and when it is essential. I just want to confirm that in small towns where there is no dentist the medical practitioners will still continue to do their duty as in the past, but when dentists are available, we want to restrict those medical practitioners who extract teeth when it is not essential that they should do so.
I just want to tell the hon. the Minister that, after hearing the last speech, I hope that he will realize that there is no necessity for this clause.
The matter has been so fully discussed by the various speakers that it is hardly necessary for me to add anything further, but if I have to say something, it is that I regard this clause as necessary. The object is not to protect dentists or the medical practitioners, but to regulate and divide the health services. That is the whole object of it. We have to bear in mind that medical doctors have been debarred from making dentures for years, and that the only service the ordinary doctor may render is to extract teeth. The hon. member for Drakensberg has stated that the poor man is deprived of the right to have his teeth extracted cheaply, but the great motive should not be to extract teeth. The poor man is the one who is least able to afford artificial teeth, and he is the person whose teeth have to be protected best, for he needs his teeth more than we do, because the wealthy man can still afford to have dentures made. So if there is one whose teeth should be safeguarded, it is the poor man. If we permit only medical doctors to provide the poor man with dental services, then we leave to the doctor the only right that he presently enjoys under the law, and that is to extract teeth, for he does not have the right to make dentures. In other words, as long as we leave it at that, where the poorer communities have only medical practitioners to look after their teeth, we shall be encouraging the poor people to have their teeth extracted, these poor people who can least afford to lose their teeth. We now want to restore the position—the Medical Council feels very strongly about it—where the country districts and the poor man will be in a position to receive more dental services from a dentist. a qualified person. That is the very thing this clause is going to bring about, for it is not possible for a dentist to make a living in the country districts at the present time, because the medical practitioner there is obliged, even if he is unwilling to do so, to extract teeth and to provide elementary dental services. It is difficult for a dentist to make a living in the country districts, and the Medical Council feels that if they could impose it as a matter of professional etiquette that medical practitioners should refrain as far as possible from rendering dental services, we will be creating an opportunity for the dentists to go to the country districts, and once we create an opportunity for dentists to go to the country districts, weare creating better services for that vast mass of people who at the present time are receiving poor dental services. That is the object of this whole clause, and I hope we can rely on the support of the whole House in this attempt of ours to improve services for our people as a whole.
Clause put and agreed to.
On Clause 9,
I move as an amendment—
(b) by the insertion in paragraph (f) of the said sub-section after the word “preparation” of the words “or to any other person
and in line 42, after “preparation” to insert “or to any other person.”
Clause, as amended, put and agreed to.
Remaining Clause and Title of the Bill put and agreed to.
Bill reported with amendments.
Amendments in Clause 9 put and agreed to, and the Bill, as amended, adopted.
More than two members having objected,
Second Order read: House to go into Committee on Parliamentary Service and Administrators’ Pensions Amendment Bill.
House in Committee:
On Clause 1,
Our objections to this Bill were stated during the second reading debate. This particular clause is in effect the operative clause of the Bill and we intend to emphasize our objection to the Bill by voting against this clause.
I move as an amendment—
In lines 37 and 38 to omit “in terms of regulations made under paragraph (a) of subsection (1) of Section 14 of” and to substitute “appointed under”.
Clause, as amended, put and the Committee divided:
Ayes—77: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Dönges, T. E.; du Plessis, H. R. H.; Erasmus, F. C.; Faurie, W. H.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Grobler, M. S. F.; Hertzog, A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Niemand, F. J.; Otto, J. 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.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Treurnicht, N. F.; Uys, D. C. H.; 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 Eeden, F. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Webster, A.
Tellers: J. J. Fouché and D. J. Potgieter.
Noes—41: Barnett, C.; Basson, J. A. L.; Butcher, R. R.; Connan, J. M.; Cronje, F. J. C.; de Beer, Z. J.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Eglin, C. W.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; 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.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Steytler, J. van A.; Swart, H. G.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Williams, T. O.
Tellers: H. C. de Kock and A. Hopewell.
Clause, as amended, accordingly agreed to.
Remaining Clauses and Title of the Bill put and agreed to.
Bill reported with an amendment.
Third Order read: Third reading,—Public Holidays Amendment Bill.
Bill read a third time.
Fourth Order read: Second reading,—Pensions (Supplementary) Bill.
There is hardly anything to be said about this Bill, for it simply gives effect to the recommendations of the Select Committee on Pensions. Hon. members have considered the report of the Select Committee, and the Committee of the House has adopted that report. It has also been considered by a similar committee of the Senate and the report was adopted there also.
Then I should like to say a few words just for the record. There was a report in the Argus which took us to task for having given notice of this Bill yesterday only. This Bill of course always comes at the end of the session, because the report of the Select Committee is always considered only towards the end of the session, and after it has been considered in this House, it has first to be considered by the Senate also. Immediately after it was approved in the Senate, notice of this Bill was given, and every item appearing in this Bill has been before hon. members in dealing with the report of the Select Committee and hon. members have considered it.
I should like to refer only to item 28 of this Bill, namely the grant to J. G. Malan of a pension in terms of the War Pensions Act, 1941. Hon. members of the Select Committee will know that when they were dealing with this matter, the Select Committee felt that they were not willing to give a decision on this case, but that they would submit it to the Government for consideration. The facts in connection with the matter are that the applicant concerned was born on 5 March 1897. About 1907, as a young lad, he emigrated with his father to Tanganyika, where he lived all those years. During the First World War of 1914-18. he enlisted with the South African forces, and rendered military service under General van Deventer. After the war he remained there and he returned to South Africa in 1960. Hon. members will recall that we recently amended the law in relation to residential qualifications in such a way that a Union national by birth need be here only for a period of five of ten years before he qualifies under this law. So this person therefore was not here for five years, but the Select Committee felt, where there might be other instances of South African citizens in other parts of Africa, who in the circumstances may now return, that it wanted guidance from the Government in the event of such applications coming before the Select Committee in future. The Government considered that matter, and decided to grant a pension to the person concerned which could then serve as a principle and a guide to the Select Committee for the future. That will be the principle that will be applicable in respect of Union citizens in future, but the cases have to be considered by the Select Committee; it cannot be done automatically, and the Select Committee will consider every case on its merits, as in the past, and make a recommendation or make no recommendation in its report.
This Bill has the blessing of this side of the House. As the hon. the Deputy Minister has explained, this Bill simply provides for certain pensions, grants, gratuities and other benefits as passed by this House in Committee. The hon. the Deputy Minister mentioned one or two cases that were rejected although passed unanimously by the Select Committee. I understood at the time we were discussing this in Committee that those few cases were going to be referred to the Government. I hope that will be done. I can give the Minister the names of the cases I have in mind.
Motion put and agreed to.
Bill read a second time.
House in Committee:
Clauses of the Bill put and agreed to.
On the Schedule,
I should just like to have a little information from the hon. the Deputy Minister in respect of item 4, namely the award to Zacharia S. J. Potgieter. I have been informed in the meantime that Mrs. Potgieter married a pensioner in April of this year. All they have is the pension which her husband receives. Can the Deputy Minister tell me what will be her position as from 1 April of this year?
Hon. members will note that according to the recommendation of the Select Committee this award is being made to Mrs. Potgieter as from 1 April 1960. Hon. members will also note that the amount which has been awarded her, namely R76, is equivalent to the old age pension. The basis of the War Pensions Act of 1919 and the War Pensions Act of 1949 is that all such pensions paid to widows are only payable forso long as they remain unmarried. The lady unfortunately married in April…
I am sorry, I should not use that word. No married man is unfortunate. As I have said, this lady has married. Unfortunately she will now only receive her pension as from 1 April 1960, up to the date on which she married. We shall therefore be able to give her a considerable dowry, but unfortunately the pension must lapse because she has married. But as she has married a pensioner, it seems to me that she will probably qualify for an old age pension and the only advice I can give the hon. member is that the lady concerned should apply for an old age pension. If she then falls within the limits of the means test, a pension will be awarded to her and she will not suffer any loss.
Business suspended at 12.45 p.m. and resumed at 2.20 p.m.
Schedule put and agreed to.
Title of the Bill put and agreed to.
Bill reported without amendment.
Fifth Order read: Second reading.—Revenue Laws Amendment Bill.
In order to save the time of the House I have decided against the introduction of five separate Bills to give effect to the proposals in regard to Stamp Duties, Licences, Transfer Duty, Estate Duty and the Cinematograph Films Tax. All those matters have therefore been combined in the Revenue Laws Amendment Bill, in separate chapters for each of these various licence forms.
The Memorandum on the Bill indicates the effect of each of the clauses and I propose to deal very shortly with the reasons for the amendments, to a certain extent in elaboration of the White Paper.
In regard to Stamp Duty, I referred in my Budget statement to the proposal to reduce the duty on policies, certificates or renewals of marine insurance in order to bring the existing tariff into line with the tariff charged in countries with which the Republic carries on the bulk of its trading activities. It is hoped that the effect of the amendment will be to conserve, within the Republic, funds which are now utilized abroad as payments for insurance cover for our exports and imports.
The exemption from duty in respect of brokers’ notes issued in regard to the purchase and sale of South African Broadcasting Corporation securities removes an obstacle to dealing in the securities of what amounts to a public utility corporation.
It is proposed to consolidate the Stamp Duties and Fees Act, 1911, during the next session of Parliament.
Part II of the Bill deals with the Licences Consolidation Act, 1925. It is proposed to consolidate this Act next session principally for the purpose of converting the Netherlands text into Afrikaans and the amendments now proposed will pave the way for such consolidation.
Clause 3 seeks to clarify the uncertainty which has arisen as the result of conflicting decisions given by various Provincial Divisions of the Supreme Court and to resolve that uncertainty by deeming the supply of commodities by a club to its members to be the carrying on of a trade or business if such commodities fall outside the descriptions of the special commodities referred to in the clause. The ordinary recreation or social clubs, which restrict the goods supplied to their members to the articles in the restricted list of commodities will not be affected by the amendment which is really aimed at organizations carrying on trading activities under the guise of clubs and in competition with other traders who are required to be licensed under the Act. This amendment has also been discussed with interested bodies and Departments of State and is considered necessary.
Clause 4 modernizes the two exemptions in regard to the Boarding and Lodging House Keeper Licence, which were introduced in 1946 and 1947 respectively, by relating them to the present laws on the subject matter of the exemptions. The laws referred to in the present text have now been superseded by other laws and this is merely to bring it into line with the actual facts of to-day.
Clause 5 is concerned with the licence required by a dealer or speculator in livestock or produce. For years it had been assumed that this licence was required both for the purchase and sale of livestock or produce and the wording of the item and the exemptions thereunder seemed to support such a conclusion. In a case which came before the Appellate Division of the Supreme Court it was held, however, that the licence was required for the purchase of livestock or produce and did not entitle the holder to sell the goods purchased by him in any way which would attract a licence under any other item without holding the licence required. It is now sought to remove the inconsistencies, indicated by the judgment, between the charging section under the item and the exclusions and exemptions thereunder. That is being done by removing the exclusionfrom the charging section and by re-introducing it, in clarified form, as an exemption. The licence remains a licence to buy livestock or produce but the amendment will make it clear that the licence will not be required by a farmer or by any other person if the goods are purchased in the course of ordinary farming operations or in the course of any business for which a licence as a general dealer, fresh produce dealer, hawker or pedlar is required.
Clause 6 amends exemption (a) in regard to the liability for a general dealer’s licence in order to widen the scope of the exemption in accordance with the long established practice of not requiring farmers to hold general dealers’ licences in respect of the sale of livestock in the ordinary course of their farming operations.
The object of Clause 7 is to relieve from liability for a licence as a broker or agent any person who provides, in his shop or other place of business, facilities for the collection from the public of clothes and other articles which require cleaning or dyeing. At present such a person is liable for the licence if he discloses that he is acting on behalf of some other person who does the actual cleaning or dyeing but he is not liable if he accepts the work on his own behalf and then has it performed, under contract, by some other person. That is an anomaly and we are now removing it.
As the type of work performed at these receiving depots is a service to the general public and is only remotely classifiable as the work of a broker or agent it is considered that the risk of liability for a special licence, which may militate against the establishment of such depots, should be removed.
The clause also provides that any liability for licence duty which may have become payable prior to 1 July 1961, but which had not been paid at the date of commencement of the exemption shall not be collected.
Clause 8 seeks to extend the powers granted to the Administrator of Natal under the Licences (Amendment) Act, 1927, to enable him to exercise control over all persons who require to be licensed under the Licences Consolidation Act, 1925, if such persons desire to enter Zululand for the purposes of carrying on any trade therein or of soliciting orders for persons trading outside Zululand. The powers presently conferred on the Administrator apply only in respect of persons liable for a licence under the Second Schedule of the Licences Consolidation Act, 1925, and this amendment will extend his powers in respect of those persons, mainly commercial travellers, who require a licence in terms of the First Schedule of the Act.
Part III of the Bill deals with amendments to the Estate Duty Act, 1955. Section 4 of that Act provides for deductions in the determination of the dutiable value of an estate and the proposed amendment to sub-paragraph (iii) of paragraph (h) of that section makes it clear that bequests to local authorities will be deducted only if such local authorities are within the Republic.
I think a case has arisen where a request was made to a local authority outside South Africa, and we make it quite clear with this amendment that where the exemption is granted in favour of local authorities, it refers obviously only to local authorities within the country.
The amendment to paragraph (1) of the section is introduced for the purpose of defining more closely what is meant by local registered stock and also to give effect to the proposal, made in my Budget statement that, in regard to the deduction of an amount not exceeding R10,000 provided by paragraph (k), not only the proceeds of insurance policies and local registered stock but also the proceeds of securities issued by the Land and Agricultural Bank of South Africa will be taken into account. This extension will, I hope, be an incentive, particularly to our farming community, to invest in Land Bank securities.
The introduction of the new paragraph (o) into Section 4 will authorize the deduction of the value of any art collection from the value of the estate of the owner if the collection is at the date of death of the owner, on loan to the State or to any local authority therein. To qualify for the deduction the period of the loan must have been for not less than 50 years. The deduction will be granted in respect of the estate of each owner who dies during the loan period. It is hoped that this provision will lead to the permanent retention in the Republic of valuable collections of books, pictures, statuary or other objects of art.
Section 5 of the Estate Duty Act lays down rules for the valuation of property included in an estate and the amendments introduced by Clause 12 of the Bill concern paragraph (f)bis of sub-section (1) of Section 5 which was enacted last year. The first portion of paragraph (f)bis is being changed because a doubt has arisen as to whether there is a right of appeal against the valuation, as determined by the Commissioner, of the shares of certain private companies. There was never any intention to withhold such a right and, to clarify the position, it is now proposed that the valuation shall be made by some impartial person appointed by the Commissioner and that the Commissioner shall have the right to review that valuation under the provisions of Section 8 of the Act. Any valuation made by the Commissioner under Section 8 of the Act is subject to appeal.
The other amendments to paragraph (f)bis remove the present reference to “blood relationship”, simplify the procedure to be followed in the valuation of shares in private companies and permit of the valuer taking account of any possible decrease in the value of the shares arising from the loss to the company of the personal goodwill of the deceased.
These amendments to paragraph (f)bis are the result of discussions with interested parties.
Section 24 of the principal Act provides for appeals against any decision of the Commissioner in regard to valuations and the amendment merely inserts words which were unfortunately omitted when the paragraph was amended in 1957.
The First Schedule to the Estate Duty Act is concerned with the rates of duty and with the rebates applicable to family circumstances. Among those rebates is one in respect of every child of the deceased who predeceased him and who left issue or a spouse surviving the deceased. It was the intention. when that rebate was introduced, to grant the benefit to the estate of the deceased provided the widow of the predeceased child was alive and had not remarried at the date of death of the deceased.
In a recent decision the Court ruled that the rebate must be given even though the widow of the predeceased child has remarried and has completely severed her relationship with the family of the deceased. The amendment will give effect to the original intention.
Part IV of the Bill contains a very short amendment to the exemption from the Cinematograph Films Tax. This amendment has been found necessary in order to grant relief in the case of exhibitions by schools and by charitable or religious institutions. Cases have come to notice where the exhibition serves a useful educational or social purpose, but, because prices of admission are kept low, the cost of hiring the films and other incidental costs amount to more than 25 per cent of the takings.
It is accordingly proposed that exemption shall be granted if the Commissioner is satisfied that the net receipts are to be devoted wholly to the special purpose.
We do not propose to object to this Bill, but we have some comments to make. The hon. the Minister has stated that he has introduced this Bill instead of introducing five separate Bills. Mr. Speaker, what the Minister is doing is to make it more difficult to examine these various statutes in future. Here we have a Bill to amend the Stamp Duties Act, the Licences Consolidation Act of 1925, the Licences (Amendment Act) of 1927, the Transfer Duty Act, the Estate Duty Act and the Cinematograph Films Tax Act. The whole lot is embodied in one omnibus Bill, which is going to make it difficult to examine the various Acts in future.
Some of the provisions have been asked for for some time and we have no objection to them, and I hope that the hon. the Minister is not going to ask for the Committee Stage to-day, but will give us time to examine the provisions further. The provision under Clause 3 in respect of licences for social clubs, sporting clubs, or recreation clubs is, as the hon. the Minister has rightly said, a clause which clarifies the position. There have been doubts from time to time with regard to the liability or otherwise for licence duties, and as the hon. the Minister says, the object of this provision is to remove these doubts.
Clause 4 exempts from licence duty local authorities, particularly where local authorities have been building flats to assist in housing. The effect of this clause is to exempt from licence the local authorities in respect of the letting of these flats.
When we come to transfer duty, I don’t think we can be so happy with the amendment, because the clause gives the revenue authorities the power to ask for a duty, a transfer duty at a figure which they regard as a fair value, and it may be a higher figure than was realized at a sale in execution. Surely in the case of a sale in execution, such a sale is advertised to the world, and when the sale takes place, surely at that time the figure at which the property changes hands is a fair value, because it is the price which the willing seller is prepared to sell at and the willing buyer is prepared to buy at. It may be that it is awkward for the seller and that the seller may not wish to sell at that time at that price, but the price determined at the time of the sale is the limit, the maximum price which the buyer is prepared to pay, and surely at that time that is the fair value. It seems to me that the Commissioner of Inland Revenue in attempting to get his pound of flesh, wants to call a fair value a value higher than the value at a sale in execution. It is very difficult to understand what the basis is going to be of fair value as determined by the revenue authorities, and we will have something to say on that when we deal with the matter in Committee.
To come now to the estate duty clause, Clause 11, it appears to us that sub-section (c) is to cover the Robinson Collection, and the Minister has that in mind. There is a valuable collection and the Minister wishes to assist this estate in regard to estate duties, and I don’t think anyone will quarrel with that.
When we come to Clause 12, whereas the hon. the Minister gives the House the impression that the whole object of this clause is to give relief, but as we read the clause it is to tighten up the section of the Act, and if you read sub-section (b), you will find this—
The Minister has given us the impression in his second reading speech that this will be a benefit to the estate, but it appears to us that the whole object of the clause…
It is only to bring clarity, to bring it into line with the original intention.
It appears to us that the whole object of this is to tighten up the basis of valuation of shares in private companiesfor estate duty purposes. The Minister says the object is to bring it into line with the original intention, but it is quite clear to us that the Minister’s intention is to raise the figure rather than lower the figure having regard to the value of shares in private companies and to ignore the effect of the decease, particularly in a private company where a private shareholder may be the main shareholder and the person having most influence in that company. It seems to us that the Minister’s intention is to ignore the importance of that person who has built up the company and whose death may not only affect the company, but may result in the diminution of the value of the shares in that private company. I suggest that far from giving relief, it is to tighten up the Act so as to raise the value of the shares and to give little relief to the estate of the deceased and to gain more for the Fiscus.
Finally, in dealing with the Cinematograph Films Tax, here again (in Clause 16) instead of indicating a fixed amount, the Minister is introducing a discretionary power in the hands of the Commissioner, and there is no indication of what are expenses—expenses are not defined in calculating what are reasonable expenses in respect of films of this kind which are shown on behalf of charitable organizations. It appears to me that this clause places the persons holding exhibitions of films of this kind in the difficult position of not knowing where they stand until after the Commissioner’s decision. It would be preferable for them to get the Commissioner’s decision in advance, before holding the exhibition, and I suggest that this leaves the matter in doubt and we hope to have the opportunity of getting further clarification from the hon. the Minister during the Committee Stage of the Bill.
As I said, we do not propose to object to this Bill, but we hope that the hon. the Minister will give us further time to consider the clauses of the Bill, because they do appear to us in some cases to be more onerous than would at first appear, and our experience of the hon. the Minister is such that things are not always as pleasant as they would seem.
This is one of these cases where we are faced at this stage of the Session with a financial measure which really requires far more consideration than we have time to give to it. We have certainly not had time to go into the provisions of this Bill and to consult with the people who could give us the other side of the story. As the hon. member for Pinetown (Mr. Hopewell) said just now. our experience of this Minister has not always been that his honeyed words mean exactly what he says. I want particularly to refer to the effect of the amendment to the Estate Duty Act. Last year some very stringent amendments were brought in, particularly applying to the valuation of private company shares, and this clause before us, I must admit, looks innocuous on the face of it. We have tried on this side of the House to discuss with people the question as to whether it is innocuous or not. I am somewhat suspicious about it, and we were told by such people that they could not possibly give us their views in the time available. I repeat that the present Bill seems to ease some of the provisions passed last year, but I do submit that estate duty is one of the most important duties of all. It affects every citizen. Everybody has to die some time or other. I am the first to admit that it is always necessary to pass legislation to keep pace with human ingenuity in respect of evading taxation, but surely it is our duty in this Parliament to listen to the other side of the story and to see that the Administration is only closing loopholes and not closing them so tight that fish are caught in the net that were never intended to be caught. I frankly cannot say at this stage whether this is good legislation or not, and if anybody is going to say to me “Why did you fellows let that Bill go through?” I personally will frankly say that we had no time to find out what was behind the Commissioner’s recommendations. I most seriously protest against the late introduction of this measure. A man does not work all his life to give his money to the Government. He wants to know what is going to happen to his money when he dies. And here we have amendments to an extremely complicated measure, particularly in Clause 12 of the Bill, which amends Section 5. On the face of it, as I say, it looks innocuous, but I am afraid it is not. I hope in the Committee Stage the hon. the Minister will give us a little more information as to why and how people have been working points in regard to the market value of their assets.
Section (10) of this Bill, too, dealing with transfer duty, sales in execution requires more explanation than the Minister has so far given.
I have no objection to letting the Committee Stage stand over. As a matter of fact, there are some small amendments which I will put on the Order Paper, small corrections, nothing affecting principle at all. I shall also have an opportunity then of discussing some of the objections raised by hon. members to-day, but I want to say that this Bill to a large extent gives effect to proposals adopted in the Committee of Ways and Means. It is not something new which is thrust upon hon. members. It was decided in the Committee of Ways and Means, and here we merely have the form in which it is clothed, which is new. But, as I say, it is a matter which we can discuss in the Committee Stage, and I am certainly not going to ask for the Committee Stage now. I can just say in regard to the provision in respect of sales in execution, that that to my mind is very much different from a sale by public auction. It is notorious that the prices obtained at a sale in execution are very much below the ordinary market value, the fair market value, and we feel that under those circumstances, in the caseof a sale in execution, it is not fair that the purchaser should not only get away with a price which is below the fair market value, but that the Fiscus should also lose by reason of the fact that the Commissioner under the present law cannot challenge the value as in the case of an ordinary sale. Where the purchaser already has the advantage of paying a much lower price than the fair market value, we feel that the Fiscus should not be also mulcted in addition.
As far as Clause 12 is concerned, the present reading requires the appraiser to have regard to any increase or decrease which may have taken place. If hon. members will read the amendment here in the light of the original Act, they will see that. There was some doubt expressed last year during the debate, and as a result of representations that were made the Commissioner has had discussions with people who are closely interested in the valuation of shares of private companies, and this is an amendment approved of by these people. The new provision provides that only where there is a provision or an arrangement which results in an increase or decrease, shall such increase or decrease not be taken into account. In other words, where there is a fictitious arrangement. That is the real object we have in view here. Last year it seemed as if we had spread our net a little bit too wide, and that is why we have now clarified the position, after discussions with those people who have some doubts. I think that is all I have to say now, except that I still want to make one remark in regard to Clause 16. I may just say that the hon. member should disabuse his mind: The original position was that if any film was shown for a charitable cause, it could only claim an exemption if not more than 25 per cent of the takings went into expenses. Our experience was that in respect of these charitable exhibitions the costs are much higher than 25 per cent, and in fact very few qualified for this exemption. We now say that the expenses can be up to say 90 per cent, as long as the Commissioner is satisfied that it is an exhibition for one of these purposes. So it is a very big concession, in fact, and it is a concession made in view of the representations that the costs of these exhibitions were in most cases more than 25 per cent of the takings.
Motion put and agreed to.
Bill read a second time.
Sixth Order read: Second reading,—Prohibition of Sports Pools Amendment Bill.
This is a short Bill, which I hope will be regarded as non-contentious. It deals with the powers of the provinces in respect of betting. There will be no doubt some, especially in Natal, who will be tempted to name it “The July Handicap Relief Act”. This Bill has become urgently necessary, because the provinces are in doubt as to whether their powers in respect of betting have not been repealed by an Act of 1949, and in the case of totalisators have totally been taken away. This doubt has arisen as a result of a judicial observation—may be by way of obiter dictum or by way of intelligent anticipation on what a pending judgment is going to be, but there it is to the effect that the 1949 Sports Pools Act would be affected. From the early stages, I think in 1913, the provinces were given certain powers in relation to horse racing and betting, including totalisators. These powers were granted by means of the now repealed Financial Relations Act of 1913. These powers have been re-affirmed by the Financial Relations Consolidation and Amendment Act of 1945 which, as the name indicates, is a consolidating measure. As a result of a court case in December 1948, namely Rex. v. Sports Pools (Proprietary Limited) and Others, it was decided to curb the activities of sports pools, and with this object in view the Prohibition of Sports Pools Act was passed in 1949.
In this Act sporting events are defined with specific inclusion of horse racing. In addition, sports pools are defined in Section 1 (3) of the Prohibition of Sports Pools Act as meaning—
This is precisely what happens when betting takes place by means of totalisators. Serious doubt has now arisen as the result, as I have said, of a judicial observation, as to whether the Prohibition of Sports Pools Act of 1949 does not have the unintentional effect that the powers of provinces in respect of betting have not, by implication, in a large measure been repealed, and in the case of totalisators, completely taken away. It was clearly never the intention that the 1949 Act should have this effect. If this doubt is not removed immediately it can seriously prejudice both the provinces and the public at large.
The purpose of this Bill, therefore, is to place the original intention of the Act beyond all doubt, and I hope it will be regarded as almost an agreed measure.
There is common cause in this matter, and the hon. the Minister has put the position fairly before this House. There can be no doubt whatsoever that it was never intended that the 1949 Act in relation to sports pools should have had the effect of repealing the powers which have been vested in the Provincial Councils in respect of betting andtotalisators. Therefore the official Opposition will support this Bill which is merely giving effect to what was intended to be the position in 1949.
I would like to say that we support this Bill more readily for the reason that if there should be any pending action, it is quite clear that this Bill would have the effect of doing justice so far as the parties are concerned. It is clear that in any matter which might possibly be before the courts, the courts would have to hold that they could not hear the issue as to whether a particular person had or had not been successful on the totalisator or in respect of a bet. The effect of the amendment will be that whatever may be the legal position of those persons prior to the passing of this Act, after the passing of this Act their legal rights will be those which it was intended they should be when the 1949 Act was passed. In these circumstances we feel it is right that this House should pass this measure in order to give effect to what was clearly the intention of Parliament at the time.
This is one of the rare occasions on which retrospective legislation is justified. The Act of 1949, as the hon. the Minister has pointed out, has led to a difficulty which arose in the course of a case in the Law Courts of Natal.
Here may I say, in parenthesis, that the loophole discovered in this Act is a very telling example of the need for care when legislation goes through this House; of the need to avoid rushed legislation; of the need to enable hon. members of this House to give due consideration to legislation that they pass so that an obvious loophole such as this should not arise, I have no doubt, whatsoever, that the law as it stands makes betting on Tattersalls and on horse races illegal. If one reads the definition of a “sporting event” and takes it in conjunction with the definition of a “sports pool,” it is perfectly clear that all the betting which has taken place since 1949 is illegal. The issue arose, crisply, in the course of an action brought in the Supreme Court of Natal where the defendent sought to rely on this casus omisus in the legislation, in order to raise a technical defence. If I had thought that this retrospective legislation was likely to interfere with the legitimate rights of parties to a dispute, I would not have been prepared to support it. However, I am completely satisfied that this legislation is necessary in order to regularize a position which has been accepted by all the parties to the dispute in the past; and to allow the case in issue to be decided upon a purely technical point, resulting from a casus omisus of this legislature, would result in a grave injustice. I believe that this legislation is necessary. But I utter this warning this afternoon, particularly after the discussions we had in this House this morning. This is Act No. 38 of 1949…
Passed early in the session.
It was not necessarily passed early in the session.
That hon. member is always wrong…
Order, order! Both hon. members are now out of order.
This hon. gentleman is always wrong, Mr. Speaker. He told us only the other day that we should not have to restrict the outflow of foreign capital.
Order, order! The hon. member must come back to the Bill.
I utter my warning, Sir, and I say that the need for this legislation is a very good indication of the need for careful consideration of legislation, of whatever nature it is, which goes through this House. In all the circumstances, however, I am satisfied that the hon. the Minister of Justice is acting justly, both in regard to the provisions of this Bill and in giving it retrospective effect. In those circumstances we shall support the Bill.
I also feel inclined to support this Bill because it gives one the impression that the Government is becoming a little more enlightened in regard to the gambling requirements of the community. I hope that we will shortly have a Bill legalizing lotteries, which is also required by the community.
Order, order! That is out of order.
I want to thank hon. members for the way they have received this short Bill.
Motion put and agreed to.
Bill read a second time.
Eighth Order read: House to go into Committee on Liquor Amendment Bill.
House in Committee:
On Clause 2,
I wonder whether the hon. the Minister will agree to leaving Clause 2 over for the time being. I suggest that, because this is the clause which, if I may bring it into relation to the section as amended, says—
who may be given authority under the proposed new Section 100bis. There is obviously going to be a great deal of discussion on this new Section 100bis; and much will depend upon what happens in committee in regard to the form of Section 100bis when it comes out of the Committee. In those circumstances I would ask that the hon. the Minister be good enough to hold this over, because only in the light of what is decided in regard to Section 100bis, I think, can we properly bring our minds to bear upon this far-reaching clause which takes the operation of Section 100bis outside the jurisdiction of the Liquor Act. I move—
On Clause 3,
May I ask one question on this clause, Mr. Chairman? Would the hon. the Minister be good enough to look at the English version, at the new sub-section (1)quat. It says—
I have tried to follow the purpose of that provision, and I should be very grateful if the hon. the Minister could say why that provision is incorporated. It states that “every licence granted… contrary to the provisions… shall be null and void”, unless the authority of the State President is obtained on or before 1 November 1961. In what circumstances can a licence granted contrary to the provisions of sub-section (1) or (1)bis be ratified by the State President? I am not clear on that in my own mind, and I would be grateful if the hon. the Minister could clarify that point.
Licences granted, or every removal or transfer authorized after 10 May 1960, contrary to the provisions of this clause become null and void unless the approval of the State President in Council is obtained before 1 November 1961. An applicant who desires to obtain the State President’s authority for use at the annual meeting is required to lodge his application with the Secretary for Justice not later than 1 September. These courts all sit later than September. So they have to lodge their applications not later than 1 September of the year concerned. This provision already exists in Section 53 of the Act. The provisions of this clause shall be deemed to have come into operation on 10 May 1960, the date upon which the report of the Malan Commission was tabled. This is in accordance with my statement in this House on 10 May 1960, and again on 9 June 1961.
Surely this clause in effect gives authority to the Minister, although it states the State President, to issue permits. The practical effect of this clause will be that permits will be issued by State officials. Instead of the issue of permits taking place as in the past where all the evidence is placed before a Licensing Board which can hear the views of those in favour and those against the application, and can weigh that evidence carefully and thereafter decide whether or not a licence should be granted, in this ease the sole arbiter will become a State official. It is certain that neither the hon. the Minister nor the State President personally will consider the matter. It will be referred to officials who will have certain general instructions given to them on the basis of which they will issue the permits. This is an extension of the permit system, and that system, unless it is supported by very good reasons, should not, I submit, be encouraged. There will be every encouragement given to State officials to issue permits. Great pressure will be brought to bear by various pressure groups anxious that permits should be issued, and I suggest that we should not support this clause unless we have a further explanation from the Minister as to the extent to which he is going to hear the evidence of both sides, and what facts will be taken into account by the Minister before issuing a permit.
I wish to ask the hon. the Minister whether he is able to give this Committee any idea of how many licences are affected by this provision? If I remember rightly, the warning was given after the Malan Commission’s Report was published, that such a prohibition would be imposed, and that anyone applying for a licence did so at their own risk. I assume it is a limited number who will be affected and I would like to ask the hon. the Minister whether he can give any indication as to how many such licences are affected, and also to make a statement of policy in regard thereto in view of the uncertainty about their future livelihood and ability to earn, which this clause is creating.
Mr. Chairman, I support the hon. member for Pinetown (Mr. Hopewell) where he says that we should examine this clause more carefully before it is accepted. Clause 3 gives the State President the power to apply any conditions and restrictions to any licence and in effect it means that the powers of the liquor licensing boards are being reduced and those powers are now being vested in the State President. I think that this Committee should think very seriouslybefore taking such a step because after all the liquor licensing boards are better acquainted with the position; they must hear evidence, they must take the circumstances into account; they know which restrictions should be imposed; they can judge better on local conditions and which licences should be restricted; and I think they are better able to judge on the provision of liquor in general. I should like to have further information from the hon. the Minister as to whether we are interpreting this clause correctly. As I read it, it takes the power from the hands of the liquor licensing boards and places it in the hands of the State President.
May I say to the hon. member for Pinetown (Mr. Hopewell) that this is merely an extension of the provisions of Section 53 of the original Act. The Minister has to consider, and will consider every particular case. But he will be advised by his advisers; he will be advised by the National Board; he will be advised by the Departments involved. I therefore do not think the hon. member need be concerned as to the powers that are given to the Minister. I think that these powers should be carried out in a consultative way. There is an amendment which is being put forward at a later stage by the hon. member for Turffontein (Mr. Durrant) to the effect that this board shall be appointed, and I am going to accept that amendment. If that board is appointed it is there to advise the Minister. These Liquor Boards are not so informed as to every part of the Union that they can give the necessary advice. As I said previously, this is an experiment and I think we must regard it as such until we introduce the consolidating measure. We must see how this works out in practice. We will be very careful in the exercise of these powers that are given to the Minister, and that will be done in consultation with these bodies.
As far as the hon. member for Durban (Point) (Mr. Raw) is concerned, I am sorry that I do not have the information he wants but I will try to find it out. I do not know at the moment how many licensees will be affected, but there may be a figure available and I will try and get the information for the hon. member.
*I can just tell the hon. member for Drakensberg (Mrs. S. M. van Niekerk) that this is a complicated clause. Perhaps I should just try to explain the clause itself, because I agree with the hon. member that this clause does contain provisions which one would like to understand quite clearly before one votes on it. Clause 3 simply lays down that no liquor licence may be granted without the consent of the State President—that means the State President in Council—in respect of premises situated in or within half a mile of the boundary of a Native location or in or within three miles of the boundary of a reserve set aside for occupation by Natives. The intention of this clause is in the first place to bring the granting of temporary liquor licences and late hours occasional licences under this prohibition. In other words, these licences can be granted. In the second place, the prohibition on the granting of liquor licences is extended to include premises which are situated in or within half a mile of the boundary of any area set aside for the occupation of Coloureds of Asiatics. I should say that a place such as Athlone near Cape Town will be on an area to which the half-mile provision will apply. In the third place, the transfer of an existing licence to premises situated within an area to which this prohibition applies is prohibited unless the State President authorizes such a transfer. Furthermore, no existing licence in respect of premises situated within an area to which the prohibition applies, may be transferred to any person without the authority of the State President. Under the regulations which are being drawn up I do not know yet, but I have in mind for example that a White man will not be authorized to sell to non-Whites and vice versa. Under this provision the State President may attach conditions and restrictions to any authority, and he may prohibit the granting, transfer or removal of such licences. Any such conditions and restrictions must be noted by and attached to the licence by the licensing board. Every licence granted, and every removal or transfer of a licence authorized contrary to the provisions I have mentioned after 1 May 1960 shall be null and void unless the authority of the State President in Council is obtained prior to the date I have mentioned. An applicant who desires the authority of the State President, as I have already told the hon. member for Salt River (Mr. Lawrence), must submit his application to the Secretary for Justice before 1 September of the year concerned.
Those. Mr. Chairman, are the provisions of Clause 3. It is a complicated provision. I just want to tell hon. members that they must allow this experiment to be undertaken. Because we shall be dealing with this in connection with the remaining amendments which have been moved, I just want to repeat this, namely that it is our intention to publish a consolidating amending Bill in the Government Gazette as early as October, so that the public will have an opportunity to study all these provisions. By that time they will also have the regulations and restrictions before them. Then, when Parliament meets again, I hope that the legislation will be considered as soon as possible and that it will then be considered thoroughly. I think that in this instance it will be a good thing to experiment a little and to see how it works out. I think it will be quite impossible for Parliament at this stage to work out a scheme which will have no loopholes, even if it had all session to do so. For this reason it will be a very good thing for us to grant these powers in this form; let us then see how these powers are used andwhat regulations the President in Council prescribes. I cannot agree with the hon. member for Drakensberg. I do not think that this is something that should be done by the licensing boards. I think that this is something that must be handled carefully. We must go slowly in this regard, we must feel our way forward. This is something which the Minister alone can do, assisted by all the advice which he has at his disposal from the various Departments, particularly the Department of Bantu Administration and Development which is closely involved in this matter. He also has at his disposal the Liquor Board which can advise him because this will be a board which must be appointed and which is there to advise him. I therefore cannot agree with the hon. member for Drakensberg that we must give these powers to the licensing boards.
I can assure the hon. the Minister that I am not trying to hold this matter up. I am really seeking for information because I am seriously puzzled. The section which Clause 2 seeks to amend is Section 53 of the principal Act; that relates to the prohibition, limitation and restriction of licences. Section 53 specifically says that no licence under the Act shall be granted for the sale of liquor, inter alia, in or within half a mile of the boundary of any Bantu location or village, and in certain other circumstances; and it goes on to say that, in any case where a prohibition applies, the Licensing Board may grant a licence for the sale of liquor if there is produced to it a certificate of the Minister of Justice saying that he has authorized the application. Then the amending Act, No. 61 of 1956, said that if the application for a licence has to be considered at the annual meeting of the board, the application for the Minister’s certificate shall reach the Secretary for Justice not later than 1 September of that year. That is the application for permission to apply for a licence, in respect of an area which otherwise would be prohibited from the grant of a licence. Now we come to this sub-clause which causes me some difficulty, because it says that every licence and every removal or transfer of a licence authorized contrary to the provisions of Section 1 or Section 1bis—that is contrary to the prohibition—shall be null and void unless the licensee obtains the authority of the State President on or before 1 November 1961. Now in what circumstances, I would like to ask the Minister, does he contemplate that the licence will be granted by a licensing board in contravention of the specific provisions of Section 53? The Licensing Board may only grant a licence if there is a prior Minister’s certificate saying that the State President allows the application to be considered. In what circumstances does he contemplate that a licence will be illegally granted, the grant of which can then be condoned by the authority of the State President on or before 1 November 1961? That is my first question.
My second question is this. If the Minister is contemplating a set of circumstances in which a licence is granted illegally, and therefore that the licence has to be condoned, it would seem to me that those circumstances might arise after 1 November 1961. Why does he limit its condonation to 1 November 1961? Now the Minister in his last reply indicated that he proposed to introduce consolidating legislation. Is the Minister now suggesting that this is merely ad hoc legislation to take us to 1 November; and does he contemplate that circumstances may arise in the future where a licence is granted illegally and may have to be condoned, but that legislation may be introduced to deal with it? If that is so, I think the Minister is taking too many steps at one time. The Minister is, therefore, assuming that he can come to the House in November after a general election, or next year, and introduce a Bill which will close the loophole which exists after 1 November. It seems to me that the Minister, if he seeks to allow the State President to give his authority on or before 1 November of this year, should not limit that authority to 1961. Does the Minister take my point? My point is that this is legislation for this year only, on the assumption that this House will pass a Bill next year to regularize the position.
It is not only for this year, but the Act comes into operation this year.
My point is that the Minister should not assume that a provision which he inserts in this Act, which comes into operation this year, will be repealed or altered by something that Parliament may agree to next year. The Minister is assuming too much, if I am correct in my deduction from what he said. I would suggest that this is not the proper way to go about it, but that he should leave out the word “1961” and say: “On or before the first day of November of any year in which a licence has to be granted”, or words to that effect.
I would also like to get some information from the Minister in regard to this clause, particularly to follow up the point raised by the hon. member for Salt River (Mr. Lawrence). What I want to know is this. We have had in certain areas an over-all prohibition which up to now has been respected by all licensing boards and courts. I refer particularly to Fish Hoek, where the Minister will know the question of the granting of a liquor licence in that area has been a matter of considerable battle each year before the local Licensing Board. Every property in that area carries on its title deeds a limitation, or a restriction, or a servitude with regard to the sale of liquor. It is a servitude which goes right back to the early days. The population in the municipal area is approximately between 5,000 and 6,000. They have in many cases developed their homes and settled there under the protectionof this particular servitude so that they can bring up their families in the way that they like. Over the years there have been strong attempts by interested parties to try to get licences granted and on each occasion a memorial has been presented in terms of the original Act by an overwhelming majority of the people expressing objection against it. What I want to ask the Minister is whether under any of the provisions of this clause it will be competent for the State President to authorize the granting of a licence in this area where it would be against the wishes of the majority of the people, but where for some reason the State President now decides that it is desirable to have a licence there. I do not feel quite as strongly that this is only a matter of local option. Certainly the people in the locality have strong feelings about it and should be protected.
May I ask the Minister, in view of his reply to my original question, whether he will give any assurance to the persons affected particularly by quat of this clause, because on reading the clause and on hearing the Minister’s explanation I realize that the number of people affected are not only a limited number. It is not only new licences and removals to an area, but transfers. For instance, on the death of the licensee the licence is transferred. or when one manager leaves and another takes over. That is a transfer in terms of this clause. I feel that what is aimed at here is to control new licences, new premises where a new licence has been granted. I ask the Minister whether he can give an assurance that existing businesses which have merely transferred their licences will not be interfered with. I can appreciate the intention of the clause that those persons who were warned by the Government that if they applied for a licence in a prohibited area that licence would be subject to restrictions, and where a person deliberately took the risk and applied for a new licence, he did so at his own risk; but where an existing business which has perhaps operated for 30 years it is different. If you take the centre of Cape Town, there is a Coloured area just at the top of Wale Street, and within half a mile of that area there are over 100 licensed premises, all the hotels in which Members of Parliament stay. In every one of those 100 cases where a manager has left or a business has been sold, there has to be a transfer of the licence and therefore every one of those businesses is in jeopardy. I hope the Minister will give an assurance that the intention of this clause is really to deal only with new licences or removals into the area and that it will not apply to long-established businesses which transfer their licence from one licensee to another for administrative reasons.
I think that if one takes a simple example, it will be easier to understand this clause. The example which the hon. member has used, namely that of Buitengracht Street, is a difficult example. When one takes a simple example, it is far clearer and one can see why it is necessary that the Department should control these matters. Take an area like Athlone which is a proclaimed Coloured area, and in which until recently there was not one single liquor licence. It is self-evident that in the course of time there will have to be liquor licences. It is also self-evident that because this is a proclaimed area in which the residents must not be economically exploited, it will be necessary to have discussions with the Department of Coloured Affairs and in a Native area there will have to be discussions with the Department of Bantu Administration. The important thing is to ensure that all the interested parties are consulted, so that a liquor licence will not be granted in such an area whereby the inhabitants will be exploited.
But I was referring to existing licences.
I have taken the case of Athlone for the very reason that there is no existing licence. Hon. members can now understand that if a liquor licence is to be granted, it will have to be granted in accordance with the policy of the Government and that it is absolutely essential that we should ensure that the Department grants these licences on the advice of the national Board under conditions which will be to the advantage of the residents. Even if we cannot answer all these questions at the moment, we can say this. In the case of the area to which the hon. member has referred, we cannot say what will happen because there are so many licences within half a mile of the area. But we cannot give an answer in respect of cases such as Athlone and it is clear that it is absolutely essential that the granting of the licences should remain under the control of the Department.
The Minister hoped to minimize my objections by telling us that he would accept an amendment at a later stage by the hon. member for Turffontein (Mr. Durrant), under which he proposed a Central Advisory Board. While that may meet part of the objection in that it will be entirely in the hands of officials. such a board would be advisory and that still does not get over the objection that a licensing board hears both sides and there is the opportunity of cross-examination, and both sides can be represented by counsel. The Minister knows that invariably the chairman is a magistrate, a person of experience, and the person who assists him has local knowledge. I submit that lightly to take away a body which is virtually a judicial body and substitute for it an advisory board is not a fair substitution. For that reason we object to the powers conferred by this clause. In practice invariably once you have the permit system you get all sorts ofpractical difficulties arising. There is the influence of pressure groups. The Minister knows what I mean by that. Whenever we get these pressure groups the weaker sections of the community cannot stand up against them and for that reason we feel that this substitution should not take place. The Minister said this was an experiment. I think this is too big a risk to take and I ask the Minister to consider again whether it is worth while substituting such a system for a judicial system where there is the advantage of all sides being able to present their case in the light of day with the public and the Press present and where all arguments can be used, and thereafter the licensing body gives its decision, and then there is still the right of appeal to the courts. For all that the Minister is substituting an advisory board plus officials, and for that reason I am not prepared to support the clause.
May I carry my question a little further, because the position is even more serious than has just been mentioned by the hon. member for Pinetown (Mr. Hopewell). The liquor licensing boards are no longer constituted in the old way. There is now a senior magistrate as chairman and assisted by other magistrates. I agree with the hon. member for Pinetown that that particular type of board which has recently been introduced as the result of weaknesses discovered in the older system, has a local knowledge and contact and is able to hold the balance fairly between the local view and the view of the applicant and I believe that it should not be lightly superseded. But I also want to ask the Minister this particular question, dealing with the specific case of an area which has some provision for local liquor restriction in its title deeds as exists at Fish Hoek. The Minister has asked us to consider this Bill as being in the nature of an experiment and he said that consolidating legislation would be published in October. Now in the case of Fish Hoek there is considerable feeling in as much that every year at the licensing court, despite the overwhelming evidence submitted that the local public does not want a licence, an application is made and the local authority and public is compelled to oppose it. On the other hand, the applicants are also put to considerable expense in representing their case, knowing to a large extent that it will not be granted.
May I ask a question? I was under the impression that the Supreme Court in the Cape had given a decision to the effect that there was a servitude on all properties preventing the granting of a liquor licence. Does that still hold good?
Some doubt has apparently been expressed as to whether that provision covers the situation, but in any case each year the local authority and public of Fish Hoek have to go through this procedure to oppose the applications. The municipality has made representations that once a case like that is dealt with by the board and the evidence is overwhelmingly in favour of rejecting the application, there should be a statutory period during which an application for a licence should not be renewed. I think five years was suggested, to save the turmoil each year of having to oppose it. I wonder whether the Minister would give consideration in the framing of his new legislation as to whether there should not be enshrined in this legislation a provision which will give an area like that some such protection. I am not dealing with the merits or demerits of whether a licence should be granted. It is just a case of the difficulties experienced and of safeguarding the special protection which the public in the area felt they had enshrined in their title deeds and in regard to which there is apparently now some doubt.
The Minister says this is in the nature of an experiment and that the situation is so delicate that it could not even be dealt with by a liquor licensing board but should rather be dealt with by the Minister himself. Then the Minister told me that this Liquor Advisory Board which he will create will take the place of the Liquor Licensing Board and it will give him the necessary advice. I am sorry, but I cannot see it that way, especially when you take into account the next two clauses which repeal Sections 81 and 91 of the original Act. If one reads that with this clause, one finds that all the rights are being taken away from the Liquor Licensing Board and put into the hands of the Minister. I cannot for a moment concede that an advisory board will act like this body of magistrates which constitutes the licensing board at the moment. I visualize the advisory board as an overall board which will not have the local knowledge that the present licensing board has. I need hardly remind the Minister that the constitution of the licensing boards had to be changed a few years ago because of irregularities which took place, and to-day it is an all-legal body consisting of a chief magistrate assisted by two other magistrates. I have the gravest doubt in regard to this clause and this power now being delegated to officials by way of an experiment. This is too dangerous a thing to be treated as an experiment. If we want to experiment, let us experiment on the basis we know, on the basis of the boards that we know, which in the past have been proved to be the most capable to handle the matter. I cannot support the clause.
I think it will be a good thing to understand this clause correctly. If what the hon. member has said were to be correct, it would be a terrible thing and I agree with her that we can never allow the Liquor Licensing Board which we have reformed to be treated in this way. But this clause does not deal with the Liquor Licensing Boards. It deals with liquor licences whichmust be granted in areas falling under the Group Areas Act. It has nothing to do with the general granting of licences and the transfer of licences. That will continue in the normal way, but here we are dealing with the group areas, the Coloured areas and the Native areas, and we dare not take chances with those areas and we cannot allow Whites to exploit non-Whites in those areas by obtaining licences which they should not obtain. Under normal circumstances such a licence would be granted because the Licensing Boards cannot take into account all the information which can only be based in consultation with the Department concerned. If the hon. member will approach the matter from this angle, I think that she will agree that what is being done here is to the advantage and takes into account the rights of the non-Whites. Would it be right if the Licensing Board were to decide that a bottle-store licence should be granted to a White man in the middle of Athlone—and that could very easily happen? A person could apply for such a licence. There are sufficient people and there are no bottle-store licences. The applicant could therefore acquire a gold mine in a Coloured area. It is precisely to avoid such difficulties that we are laying down that the Minister should consider all the conditions on which it can be done. He may say that he will not allow Whites to obtain a licence in such an area; it must be a Coloured person. He may also say that he will not allow White capital to be invested in that area or that he will allow such capital to be invested but after five years the bottle store must belong to the Coloureds. We want to protect the Coloureds, and this is a matter which was fully discussed by the Commission and the Commission was completely unanimous on this point. Hon. members have referred to Fish Hoek and other White areas, but that has nothing to do with the matter; here we are discussing the protection of the non-Whites in their own areas against exploitation, probably by Whites.
I am inclined to agree with the hon. member who has just sat down, and I think the fears of the hon. member for Simonstown are unnecessary in regard to Fish Hoek. If I thought they were just I would support him, but I am open to conviction on that point.
It is not necessary in regard to Fish Hoek.
I believe that this clause is directed at the grant of licences, inter alia, in an area set aside by the Group Areas Board, as the hon. member for Hercules (Dr. A. I. Malan) has just said. I do want to support what certain hon. members here have said—the hon. members for Pinetown (Mr. Hopewell) and Drakensberg (Mrs. S. M. van Niekerk)—and I think it is unwise to give authority to the State President in Council, acting on the advice of the Minister responsible or the Cabinet, to lay down conditions in respect of the grant of a licence. What is the existing position under Section 53? Section 53 deals with the grant of licences, with the prohibition of the grant of licences in certain areas which are adjacent to Native locations and Bantu areas and so forth. The original section goes on to say that a licensing board may consider a licence if it has before it the authority of the Governor-General conveyed to the Licensing Board by the Minister of Justice. That would now mean the authority of the State President, conveyed to the relevant Licensing Board.
A certificate by the Minister.
Yes, a certificate by the Minister conveying the State President’s decision. I have no objection whatever to its being a condition precedent to the consideration of a licence being granted in an area, otherwise prohibited, that the authority of the State President should be conveyed by a certificate of the Minister. What I do object to, however, is that when the Licensing Board, which is an independent body, decides in its wisdom to grant a licence, that decision should be subject to certain conditions laid down by the State President in Council, in other words, virtually by the responsible Minister. I refer to sub-paragraph (c) of the proposed new Section 53 (1)bis on page 4 of the English version and the proposed new sub-section (1 )ter. Sub-paragraph (c) reads—
And (1)ter which follows immediately afterwards is consequential, because it provides that the licensing board shall endorse upon any licence granted, renewed, removed or transferred, any condition or restriction imposed or attached by the State President. There are two innovations in these two sub-paragraphs. The one is that after the State President has given the right-of-way, has given authority to the independent licensing board to consider an application for a licence, he may, after the licence is granted, impose certain conditions. The second innovation is that despite a decision by a licensing board to grant a licence, the State President may veto the licence. There I entirely agree with the arguments put forward by the hon. members for Drakensberg and Pinetown. It seems to me that this is a mixture of administrative law and judicial function. It is a confusion, and I think it is wrong. I think there can be control in advance by the Minister of Justice who will advise the State President whetherto give a certificate to go ahead. But once that has been given then, I think, the proper course is for the licensing board to consider all evidence, all the circumstances of the case; and if they decide to grant a licence that should be sufficient. It they have granted it illegally the matter can be taken to the Supreme Court and the case be reviewed. If they impose conditions which are illegal, those conditions can be contested in the Supreme Court. If on the other hand they grant a licence and thereafter, ex post facto, conditions are imposed by the State President, those are imposed administratively and, so far as I can see, would not be subject to review by the Supreme Court. Because it is a well-known doctrine that you cannot attack the administrative action, whether of a Minister or of the head of the State or another official, unless you can prove male fides or unless you can show that the person in question has gone outside the four corners of the Statute. You can only do it by way of review proceedings, and it would be a ver difficult matter indeed to upset the proceedings. So my advice—and I give it in all sincerity to the Minister—is to consider whether he should not agree (and if necessary I am prepared to move it) to omit sub-paragraph (c) of the proposed new sub-section (1)bis of Section 53 and to omit the proposed new sub-section (1) ter. They follow one another after (c). I know it is difficult to deal with these matters across the floor of the House. But I am quite prepared to bring up my copy of the Bill to the Minister to point out the paragraphs in question. I recommend that those two provisions be dropped.
I first want to reply to a point which certain hon. members have raised in respect of the Central Liquor Board. It is said that the National Liquor Board will replace the ordinary licensing boards. But hon. members must remember that these are special circumstances. It is only in respect of restricted areas, and for this reason I would be wrong not to vest the power to make such a special concession the hands of a responsible Government. I am not saying that the licensing boards are not to be trusted. Far from it. We owe a great debt to South Africa’s licensing boards and to the objective way in which they consider matters. But here special powers are required. Then it is said that officials will be vested with such authority; that after all is not correct. If this board is established, as it will be established, then it will consist of three officials—the chairman who will have the rank of a magistrate, a representative of the Secretary for Justice or the Secretary himself (probably a representative) and the Commissioner of Police or his representative (probably his representative). The Secretary for Justice and the Commissioner of Police with all their work will not be able to do this type of work as well. But these will be three very responsible officials, and in addition there will be three persons who will be appointed by the State President in Council. These will probably be people who will represent the whole liquor trade in this country. I have been asked whether we cannot enlarge the number. I have already replied to that point on another occasion. I assume that these persons, or one of them, will probably represent the consumers; I assume that the second one will be appointed to represent the trade and the third to represent the producers. Perhaps I should have mentioned the third one first. I think that it will be possible to find such people in South Africa but specially in the case of the person who represents the trade itself, the Government will have to be very careful which person it appoints because if it appoints someone to represent one section of the trade, another section will complain. We shall therefore probably have to seek a person who has a general knowledge of economic matters, and if in addition he has knowledge of the liquor trade as a whole, it will of course be a good thing. But here I can see difficulties arising if in the case of the liquor trade which has so many ramifications, we appoint one person and he perhaps only represents one section of the trade because then the other sections will complain. That is why we shall have to be very careful in this regard. My reply to the hon. member for Pinetown in this connection is therefore as follows. I consider that this board will be a very responsible board. It is not a novelty to allow the President in Council (previously the Governor-General in Council) to lay down certain conditions and restrictions. The provisions of the section which the hon. member for Salt River has read out vest those powers in the President in Council. It is therefore nothing new for him to have the power to lay down conditions and restrictions.
He could not lay down conditions; he could give his consent.
Well, there are conditions and there are restrictions.
The hon. member should look at Section 53 again. The principle of conditions and restrictions is recognized. This provision is nothing new. It is already embodied in the principal Act. I can therefore not see the reason for the objection; I cannot see why the President in Council should not have this power for a specific purpose. As the hon. member for Hercules (Dr. A. I. Malan) has quite correctly explained, these are only special areas, areas which have been proclaimed under the Group Areas Act. These areas must therefore be given special treatment. Seeing that the President in Council already has the power to impose certain restrictions under the existing legislation, I cannot understand why objections are being raised.I think it will be a very good thing if this National Liquor Board advises the Government. The Government will of course also consult the organizations concerned. I do not think that this is a function of a liquor licensing board; the State should take the responsibility itself. Later I intend accepting an amendment which has been moved by the hon. member for Von Brandis (Mr. Higgerty), an amendment which will provide that within two weeks after the commencement of a session of Parliament the Minister shall lay upon the Table a report giving the House details in respect of certain powers which have been exercised on the instructions of the President in Council. I think that this will give hon. members the assurance that there will not be any abuse.
The hon. member for Simonstown (Mr. Gay) has mentioned the example of Fish Hoek. I want to assure him that it is not the intention to include an area such as Fish Hoek under such restrictions. I think he knows that Fish Hoek has already been dealt with under a proclamation issued in terms of Section 56 of the principal Act. No licence can be issued in the case which the hon. member has mentioned without the consent of the President in Council.
There remains the point which the hon. member for Durban (Point) (Mr. Raw) has mentioned. I think that I have already covered that point in the remarks I have made.
You have not yet dealt with the question of existing licences.
There will be full protection for existing licences. Existing licences will not be affected except of course those which are affected at the date I have announced.
What is the position as regards the transfer of licences within the framework of a business?
I do not know how many there are, but licences which are transferred after a certain date will in fact be dealt with. There are perhaps only a few. I understand that there are quite a number in the vicinity of Native areas and also in the vicinity of Coloured areas or near Coloured areas; they will not be affected. We shall not touch those established rights.
I should like to ask whether the hon. the Minister will not give an assurance to existing business, in that cases where licences are transferred within the framework of the business, they will not be affected because technically this is a transfer but it remains in the same business.
I would prefer to confine myself to the provisions of the Act itself and say that when there is no ignoring of the date which I have already announced here, the policy will be to respect their rights. I cannot go any further than that.
Then the hon. member for Salt River has referred to licences which will be declared null and void. Licences issued after 10 May 1960, and prior to the date of commencement of this Act, will, in accordance with my statement, be dealt with in accordance with the statement I have made, but there is no question of illegal licences being granted.
You mean that permission may have been granted to them but with a view to the amendments…
May I ask the hon. the Minister what he has in mind in relation to paragraph (d) in line 30 which reads—
Are those to be areas set aside in terms of the Group Areas Act or does he intend also to include townships which may have been established by a private township owner for the occupation of Coloureds or Asiatics?
My reply is this—the provisions of the Group Areas Act will be taken into account. I do not want to give the assurance that the private townships to which the hon. member has just referred will not be included under the Group Areas Act. I do not want to bind myself now by saying that it will only include presently existing areas, because there are areas where the group areas may be extended or restricted in accordance with population movements. The hon. member must therefore not tie me down to a statement that this will not be done. It may happen but it is unlikely.
But is the legislation sufficiently clear on this point?
Yes, I think it is sufficiently clear.
Clause put and a division called.
As fewer than 15 members (viz. Brig. Bronkhorst. Messrs. Dodds, Eaton, Gay, Hopewell, Oldfield, Raw, Dr. D. L. Smit, Dr. Steenkamp, Mr. H. G. Swart and Mrs. S. M. van Niekerk) voted against the clause, the Acting Deputy Chairman declared it agreed to.
On Clause 4,
I move the amendment standing in my name—
The question has arisen as to whether restrictions and conditions which the liquor licensing boards have laid down for 1961 under Section 81 of the Act will remain valid until the end of the year. The hon. member for Durban (Point) raised this question the other day. The amendment I am now moving makes it clear beyond all doubt that all such restrictions and conditions will lapse when the Act comes into operation. From the date of commencement Coloureds and Asiatics in the Cape Province and Coloureds in Natal will be able to obtain liquor on the same basis as Whites.
The effect of this amendment will be to abolish the authority that a licensing court has hitherto exercised of imposing conditions restricting the supply of liquor to persons of a particular class, short of total prohibition. This clause has been largely resorted to in fixing conditions on the sale of liquor to Coloured people. In many cases, it is true, it has been difficult to enforce the restrictions with regard to hours or quantities of liquor that may be sold to Coloured persons. But I do not think it is a provision that should be lightly abolished. On the other hand the Cape Coloured Commission in dealing with the abuses of the tot system felt that the abolition of that system alone would not remove access to alcohol. It suggested that in addition to the abolition of the tot system, further steps should be taken to curtail the use of liquor by members of the community who were unable to control themselves. They recommended not only that the tot system should be abolished but that the sale of liquor to Coloured persons in bulk for consumption off the premises should be prohibited save under a letter of exemption under Section 101 of the Liquor Act and that retail premises should be closed to Coloured persons from a time prior to the hours at which their weekly wages are paid. Those restrictions would naturally be imposed under the section which it is now desired to repeal. As I said during the second reading debate that was a very strong commission on which the Coloured people were represented by Dr. Abdurahman, a medical man who had a thorough knowledge of the needs and weaknesses of his own people. In the circumstances I am opposed to the repeal of Section 81 of the Act. My remarks also apply to Clause 5 (Section 91). With all its weaknesses this Section 81 has served some useful purpose. The objection to this clause is all the stronger when we consider that the sale of liquor to Natives is now to be thrown open. I am not prepared to support this clause.
I thank the Minister for going into the question of consequential restrictions, but I would ask him to clarify the statement that he made that this applied to Asiatics and Coloureds in the Cape and to Coloureds in Natal. What about Asiatics in Natal and Coloureds in the Transvaal and the Free State? The original Section 81 has no provincial connotation; it refers merely to the right of licensing boards to lay down regulations or restrictions.
That is for different classes of persons.
Perhaps the Minister will clarify the position in regard to the other province. On this subject may I also ask the hon. the Minister whether he will not carry this principle which he has adopted here into the administrative side. Much of the paper work which formerly has been necessary to control the sale of liquor will now disappear with the removal of these various restrictions. That control was necessary, of course, because only certain quantities were available to certain types of persons, but that paper work was quite a burden on the trade. I would ask the Minister to go into the extent to which the administrative regulations and restrictions placed upon the trade can be relaxed in view of the removal of these restrictions.
I also rise to oppose the provisions of this particular clause because I am not convinced on the evidence we have had put before us, or by the report of the commission, that the abolition of the right of the existing licensing authorities to impose a limitation, or a restriction on a certain class of people or in respect of certain hours would have the desired effect. I don’t believe it would, Sir. I have personal experience of both sides of the liquor trade when no restrictions were applied, the reason for applying them, and the effect of applying them. I admit without any question that she being probably has to some extent been cultivated as a result of the inability to get liquor at a particular time, but I am not at all satisfied that the evidence we have before us in any way gives a satisfactory assurance that even under the provision of this Bill, where free access during all the legal hours in respect of all the types of liquor would be granted, that shebeening will disappear. I don’t believe it will, not to the extent that we hope it is going to disappear. That remains to be seen. That was not the evidence which has been produced in Southern Rhodesia as a result of similar liquor legislation. The proof has not been forthcoming that as the result of the lifting of restrictions there, that shebeening itself has stopped. As a matter of fact, Sir, the shebeen queens, or whatever you like to call them—I would call them princesses at the moment, and not use the word “queen”—will have a much freer access to the basic liquor that they require for their brew. They would be able to get it cheaper because they would not pay the black market price. Therefore they would be able to put their brew, as was pointed out the other day by the hon. member for South Coast, a brew with something ofthe kick of a mule in it, on the market at a lower price in competition with the orthodox liquor as regards price and as regards its potency. I am not prepared to accept the statements that have been made that as a result of imposing a restriction in one area, you drive the business to another area. I have heard that view advanced many times and as a member of a Liquor Licensing Board have carried out exhaustive examination of the situation. We found that the majority of people who went out of the area, did not go out to buy liquor. Examination on arrival of the trains and a check-over of the whole thing, showed that very largely they went out to get the benefit of buying cheaper food supplies at departmental stores with this extra money they had been able to have access to as a result of the liquor restriction imposed in their area. I certainly am not in support of a total prohibition of the use of liquor, and I believe that we will have to frame legislation which will give reasonable access to all racial sections provided for under this Bill. But I believe that it goes far beyond hours of sale and the types of liquor they would buy. I believe that if we are going to try to put something on the Statute Book which is truly going to meet the situation and be of lasting benefit, then we have got to think a lot deeper than merely taking off the brakes and hoping for the best as far as some form of experiment is concerned. And that is after all what this particular clause does. It is another portion of the experiment which the hon. the Minister of Justice has told us is being conducted. He has urged us to give it a fair trial in its operation. I am not prepared to be a party to an experiment with human beings in a matter as serious as this, and I don’t believe that Parliament should be a party to that. Therefore I shall oppose this particular clause.
It is difficult to understand how the hon. members who have just spoken justify their cause by opposing this clause at this stage. At this stage we have to accept that the legislation to supply liquor to Natives has already been approved by this House in principle, and that it will pass. And now hon. members opposite come along and they actually want to give the Coloureds as well as the Asiatics less than this legislation is giving to the Natives. If you look at Section 81 as it stands to-day, you find that provision is made there for the Liquor Licensing Board to impose certain conditions and certain restrictions in relation to the supply of liquor to certain classes of the community. That in reality only applies to Coloureds and Asiatics in the Cape Province and Coloureds in Natal, for in Section 95 it is already provided that, in the Free State and Transvaal, Coloureds and Asiatics cannot get liquor.
That is also being withdrawn.
I am aware of that, and Section 95 also provides that in Natal liquor may not be supplied to Asiatics, and that is why I am saying that Section 81 as it stands at present only applies to Coloureds and Asiatics in the Cape Province and also to Coloureds in Natal.
Also Asiatics in Natal as regards on-consumption.
Well, however it may be, in so far as Section 45 does not prohibit the supply of liquor to certain classes the Licensing Board may impose certain restrictions in terms of Section 81, and the hon. members who have just spoken, the hon. members for East London (City) and Simonstown, should note that here in the Cape Province such restrictions were imposed for Asiatics and Coloureds, namely, that the Coloured person within the area of a certain Liquor Licensing Board, could purchase only a certain quantity of liquor from one dealer, say two bottles of wine and one bottle of brandy, or whatever it may be. But now we come along with legislation that has already been approved in principle by this House, and which we must expect to pass, and that is, namely, that as soon as this legislation comes into force, Natives will be able to acquire liquor in any quantity. And now hon. members wish to begrudge the Coloured man what is being given to the Native. So, Mr. Chairman, it is no more than logical and correct that, in view of the legislation we are now going to place on the Statute Book, Section 81 should lapse in toto, and that any restriction already imposed by the licensing boards (as the Minister has now given notice) should be nullified as soon as this Bill comes into operation. I should also like to remind hon. members that these restrictions under Section 81 relative to Coloureds and Asiatics here in the Cape, really have no value at all. As I have already said before, there are a few liquor dealers in every town, and the Coloureds usually have the right to purchase two or three bottles from each dealer. If there are five different dealers, it means that he can go and buy 15 bottles if he has the right to purchase three bottles from one dealer. The effect of the thing really has no value. That is not my argument, however. My argument is that, as we are now going to make unlimited liquor available to Natives, it is not more than logical and correct that the same be done with regard to the Coloureds and Asiatics.
My hon. friend who has just sat down, to a very large extent has supported my argument. You see, I am quite prepared to admit that differences do exist in various parts of the country. There are differences governing the supply to the various types, the Coloureds, the Bantu and the Asiatics. That goes without saying and I said at the outset that I am as completely opposed to the unrestricted supply of liquor to the Bantu as Iam to the supply without any local option to the Coloureds. My argument is that these differences do exist in the various parts of the country. Surely there the local licensing authorities, whose status and ability have been very largely improved over the last few years and brought into line with current conditions, and who were also started in the nature of an experiment, are working satisfactorily with as difficult a subject as this is. They, Sir, operate in particular districts and they have the knowledge of the peculiar circumstances of those districts, which a Central Board somewhere else in the Union will not have. Let us have a Central Advisory Board by all means in regard to questions of principle in general and questions of administration. They may do good work there. But in a particular local area or district area, with its peculiar circumstances, whether a restriction should or should not be applied, is surely best to be decided by these statutory authorities appointed under the liquor legislation to deal with that problem. I see no reason why we should now be asked to support an amendment which will take away from that body their power to impose restrictions. They may be quite satisfied on the weight of evidence and their own investigations and survey, and on the police reports and other reports, which every board has submitted to it…
Order! The hon. member is now going too far. He should confine himself to the clause before the Committee. What is really before the Committee is why it should not be necessary to adopt legislation which will cause restrictions which have already been imposed to lapse. That is the matter that is before the Committee.
Sir, that is exactly what I am trying to discuss that those restrictions were imposed by bodies which had local knowledge and that they had imposed those restrictions on very good grounds. They did so because they were satisfied on the evidence available that those restrictions were required. In terms of the amendment that we now have before us, those restrictions will eventually fall away, and those boards will in future be debarred from imposing such restrictions. I believe the policy is wrong. It may sound very nice in theory to say that we are going to have a national liquor policy. In broad principles that applies. But the application of the national policy in particular areas, with consideration to the particular features of that area, must to a large extent also be influenced by the authorities responsible for the granting of licences in that area. I do not want to go back to the clause we just dealt with and the question of liquor facilities at Fish Hoek. I don’t know if the hon. Minister is aware that there is a recognized location within 500 yards of the boundary of the area, maybe within 250 yards of the boundary of the municipality which will affect his ruling. Those are the things I want examined, but I cannot go back to that clause. I believe we are endeavouring to put too much restriction and control on people who should be able to know what they are doing in an area, but who will in future not be allowed to use the evidence they have; who will not be allowed to influence the sale of liquor in that area in the way they honestly believe is in the best interest of all the people in their area.
What the hon. member for Simonstown apparently does not appreciate is that as soon as you give local licensing boards these powers, you get the position referred to by the hon. the Minister that the Cape Licensing Board imposes certain conditions and Stellenbosch, next door, imposes different conditions, with the result that people simply go from the one magisterial district to the other and then you get a piling up at the shop in the neighbouring magisterial district. That leads to extremely undesirable conditions, and the effect of this clause is precisely to provide for a uniform system throughout the whole country.
I don’t entirely agree with the hon. member for Ceres (Mr. Muller) who suggested that if this restriction is not removed—the restriction imposed under Section 81—you will have an anomaly in as much as the supply of liquor is now going to be open to Natives. He suggested that this restriction was in respect only of Coloureds and Asiatics in the Cape. But, of course, if the other provisions of this Bill are accepted by this Committee and become law, then supply of liquor is open to all. In that event if this clause stands, then the licensing boards having jurisdiction would be able to impose the restrictions which Section 81 provides. That section provides that a licensing board may at an annual meeting resolve, “that it shall be a condition of all licences in the district, or of any particular licence or class of licence, that the supply of liquor to persons of a particular class, including women or any particular class of women, shall be subject to restrictions”. Now if the supply of liquor is made available to Natives, to the Bantu, as well as to other racial groups, it will be competent, if this section remains on the Statute Book, to impose restrictions affecting Bantu as well as Europeans, males and females, Coloureds, and so on. “Class” of course is defined very widely in the Act; because class is defined not merely on a racial basis but on a much wider basis. “Class” is defined under the Act as meaning, when used in respect of persons, “any number of persons having any characteristic in common, whether of race, sex, social distinction, or otherwise and includes any number of persons grouped together by any licensing board by reason of their residence in any particular area”. If one takes that definition, it is much wider than a distinction on the basis of race alone. Applying one’s mind to this section one has to consider whether, now that the door is going to be opened forthe sale of liquor to all sections of the community, irrespective of colour, a provision of this sort is still required.
And the principle has been accepted.
Yes, I am coming to that. It seems to me that for those who have accepted the principle of opening the door, this clause must follow logically; those who have opposed the principle, should vote against it. I think that is the logical result. But I am rising because I want some other information. Put on that simple basis, I am prepared to support this clause, to support the abolition of the restrictions. But before deciding on that finally, I would like to know from the hon. the Minister whether he is entirely convinced that sort of provision like this is not necessary from a police supervision point of view—not from the point of view of supervising the sale to a particular race or group. Because, if we are going to re-open that question, then one of the grounds for this Bill falls away. In other words, if we are now going to impose an obligation on the police to ensure that conditions relating to a particular group are carried out, then we open the door once again to police action of a nature which is resented by a section of that community. But there are other aspects of the sale of liquor, more particularly of the sale for on-consumption; and it seems to me that it may well be that a liquor licensing board should have the power, in certain circumstances, to impose conditions where objections have been raised by the public, for instance, in regard to behaviour of certain of those who frequent an hotel—the right to impose restrictions relating to certain sections of the community. I am not sure, but I would be glad if the hon. the Minister could help me on that point.
I believe that it is a wrong thing to accept the repeal of Section 81 of the principal Act. Section 81 says—
and then it goes on to say that notice shall be given in the Gazette, and it also gives the Liquor Licensing Board the power to perhaps repeal such restriction, and that also must be published in the Gazette. This is a power that is being taken away, but I say it is a power for the regulation of the sale of liquor that can only be for the good of the country, and if this clause is accepted and this whole Section 81 is repealed, then it is once more a limitation of the powers of the Liquor Licensing Boards, and because of that I am against it. As the hon. member for Salt River (Mr. Lawrence) pointed out: If this principle is accepted and liquor is made available to all Natives in the country, then I can see even the necessity more for this section remaining as it is. Because, Mr. Chairman, I can see that a condition can arise where youngsters will make use of liquor to such an extent that the Liquor Licensing Board might feel inclined to prohibit the sale of liquor to youngsters between the ages of 18 and 20 years. I can see it having such an influence on Native women, or on any class of persons—I can see that it has such an influence on Native women that they are neglecting their homes, and that the Liquor Licensing Board would want to impose a restriction on them. I can see all sorts of conditions under which this could be a necessity, and it can only weaken the Act if both this section and the next section are done away with.
I should like to ask the Committee that hon. members should believe us in the Cape Province as regard this aspect; they should take our word for it because of the experience we have had, because this section has never been applied in the other provinces in the past. There was no object in it, because there is Section 95, and I want to give hon. members the assurance that the application of this section has served no good purpose in the past. Indeed, in many instances the licensing boards made no use at all of it, or otherwise they stated the restrictions they imposed so widely that it really had no value. I said just now that it does not mean very much because in the past when these restrictions were imposed, the Coloured man could go and buy from many other bottle stores, and in the end he had as much liquor as he wanted or as much as he could afford. But to leave this section there, will only cause more dissension in the future, more trouble for the police, and we shall not derive any benefit from it for the practical value will be very small. If we leave that section in, and if we were to impose conditions that only small amounts of liquor may be sold to whomsoever it may be, we will only find that the Coloured man, for instance, after he has completed his purchases, and still has some money left, will send somebody else to go and buy some more, and if he has any more money available, he will send a third person also to go and buy for him. In the past this kind of method was adopted because they required the liquor for the purposes of smuggling. Now I do not agree with the hon. member for Simonstown that the shebeens will continue to exist. I say that if liquor is made available to all people to buy it in the usual manner at fair prices, then the men will go and buy it at the bottle stores or at the hotel, and it will not be necessary for him to wait until to-night when he has to pay twice the price. The result will be that there will just not be any business for the shebeens and that is the real object of this legislation, namely, to put a stop to theshebeens. I should like to give hon. members the assurance that no success will be achieved with the application of Section 81, even if we were to retain it. The past has proved it to us. But what we will get from it will be that a large section of our community will remain dissatisfied, and will feel that restrictions are imposed upon them that have not been imposed on other sections of the community, and we shall derive no benefit from it.
If Section 81 is repealed, we might as well abolish the licensing boards altogether. That is one of the most important functions they have to perform to see that suitable conditions are applied to the sale and supply of strong drink. I wish hon. members who support this amendment of the hon. the Minister, would visit country villages and country towns where large numbers of Coloureds are concentrated. It is a story of drink and misery, Sir, that has to be controlled, and even though this Section 81 may be ineffective to a large extent it should be left standing so that some use at any rate may be made of it in restricting the facilities which these people have. I know that it is a difficult matter, but the evil that we are up against is so enormous that it is a great mistake to abolish a section that gives the licensing boards these powers.
The point raised by the hon. member for Salt River (Mr. Lawrence) I could put this way, that his difficulty is that there are certain restrictions that cannot be coped with by the licensing board. I think that is his point. You see, under Section 75 (7) there are certain restrictions to which hotels are subject as regards on-consumption. The Licensing Board has the power to determine the hours of sale.
That is an isolated case.
Yes, it is an isolated case. But the principle incorporated here is that when there are restrictions, if restrictions are applied, they should be applied to everybody. That is the underlying principle, and that is the principle adopted at the second reading. If restrictions must be imposed, then Section 59 can be invoked for off-consumption, where off-consumption could then be regulated by permits. The hon. member for Durban-Point (Mr. Raw) asked whether we would not give consideration to the keeping of registers, etc. Yes, when the Act has been in operation for a while, we shall consider the suggestion he has made.
It is clear that hon. members who urged the retention of the section are not in favour of the principle approved at the second reading. They do not want the restrictions applied to all people and at all places, and we cannot help them further. Hon. members, for instance, want to curtail the principle approved at the second reading by restriction of hours for certain groups, but that is in conflict with the principle we accepted. I am grateful to the hon. members for Ceres (Mr. Muller) and Paarl (Mr. W. C. Malan) for having pointed out the tremendous confusion that exists because different licensing boards apply different hours at different places. We are now aiming at uniformity, and I do not think anybody will object to that in principle. The hon. member for Simonstown (Mr. Gay) again urged strict control over the supply of liquor to Coloureds. That is the same point of view he adopted at the second reading. I have also been asked to what extent there will be police supervision. I think that since the attention of the police will now no longer be essential to suppress certain evils, now that they will have an easier time as regards certain matters under the application of the Liquor Act, I think we shall be in the position that the police will be able to assist us in applying the supervision to which the hon. member for Salt River (Mr. Lawrence) has referred. I do not want to take it further than that, because I say we shall have to learn as we go along. Here we now have an application of the Act equalizing the entire basis. We want to repeal Section 81 of the principal Act. I do not want to criticize the liquor licensing boards. This section applies to Coloureds and Asiatics in the Cape Province. Permit me just to revert to the point raised by the hon. member for Durban (Point) (Mr. Raw) in this connection. The effect of the clause we are proposing here now will be that Asiatics and Coloureds in the Cape and Natal will be able to purchase liquor for on-consumption and off-consumption on the same basis as the White man.
In the Transvaal and the Free State too.
I think that hon. members who are now opposed to this provision will find in practice later on that this removal of certain pinpricks, particularly in connection with the hours and days, will be for the good of the country. For, Mr. Chairman, it has really made the position of the police in South Africa absolutely impossible. Here in Cape Town you have to stand guard at certain hours and do certain things. Just over the boundary at Stellenbosch the position is quite different. There you have to go and stand guard and supervise at other hours. I should like to appeal to hon. members who are opposed to this, and say to them that they really should give this point of view a trial.
Amendment of the Minister agreed to.
Clause as amended put.
Amendment put and agreed to.
Clause, as amended, put and a division was called.
As fewer than 15 members (viz. Messrs. Connan, de Kock, Eaton, Gay, Sir de VilliersGraaff, Messrs. Hopewell, Oldfield, Dr. Radford, Dr. D. L. Smit, Mr. H. G. Swart, Mrs. S. M. van Niekerk and Mr. Williams) voted against the Clause, as amended, the Acting Deputy Chairman declared it agreed to.
On Clause 6,
I am very worried about this particular clause if it goes through as it is printed. I have with me a list of hotels in the King William’s Town constituency and its immediate surroundings, and this clause will affect, I think, every hotel from the Kei River to Gordons Bay if it goes through with these words “notwithstanding anything in any other law contained”. It will deprive all of those hotels of the on-consumption privileges they enjoy to-day. The hon. the Minister knows that these provisions were made as far back as 1887. A Minister of religion was entitled to get those privileges, so was a graduate of a university, and certain other educationally qualified people. I want to tell the hon. the Minister that over this period of time many of those rural hotels and many urban hotels, having enjoyed those privileges, have built up a fairly substantial part of their business as a result of on-consumption licences. But if this clause goes through as it is they are going to be denied that privilege. I therefore want to ask the hon. the Minister if he will not withdraw this clause from the Bill and let it be reconsidered when the consolidating Act comes before Parliament? Failing that I am going to ask the hon. the Minister to accept an amendment to remove the words referred to.
I sympathize with the point of view of the hon. member for King William’s Town (Mr. Warren) where he champions the cause of the Natives who had the right to go and enjoy liquor in European hotels for on-consumption. There are other hon. members such as the hon. member for Queenstown (Dr. Steytler) for instance, whose attitude I can understand. They made representations to me to be indulgent here. But the hon. member must understand that we are now dealing with a measure that we desire to be applied equally to the Natives throughout the country, and in that connection this old existing provision is out of step.
Is the hon. the Minister aware of the fact that if this right is denied to the hotels, there will be no facilities at all for the Bantu in the country areas, no system of distribution for them?
I shall try to meet the hon. member by meeting what is worrying him. This of course is a measure that affects vested rights of a large number of hotels in the Eastern Province. I am willing—but now the hon. member must not propose an amendment—as regards the application of this provision, first to give these people an opportunity to make representations to me. The law will then be as we pass it here, that they will not be entitled to get liquor there. But let us give the people an opportunity to make representations; let us see to what extent we do not have to act too drastically right in the beginning. I should like to hear the arguments of those people. I hope the hon. member will not oppose it. Let us pass the principle in this form. I cannot accept his suggestion. Let us give those people an opportunity to make representations to us, and let us therefore take our time as regards the application of this provision. We shall give them a chance, and if they can make out a case, then we shall try to meet them when we deal with the consolidating legislation. Perhaps we could devise certain measures in the meantime that will meet vested interests, that will not make things so difficult for them. I understand there are a number of hotels that are going to be hard put to it to make a living if we were to apply this provision to them quite hastily. So, if we were to give vested interests an opportunity of adapting themselves to the circumstances laid down here, then I think we shall be acting in their interests. I am willing to hear from them what their difficulties are, and then we may be able to devise ways and means of meeting them in some way. Where we are unable to meet them is this: We cannot insert a provision in the law that will make an exception of the Eastern Province. We shall have to think of another way of meeting them.
May I ask the hon. the Minister what powers he will use in order to assist these people who are affected? In terms of the Bill which is now before us he can only grant an authority for the on- or off-consumption to all Natives…
One way would be not to put the clause into operation until they have had an opportunity to make their representations.
But my point is this, there is no power which the hon. the Minister has once this clause is passed, whereby he can apply a law to that small class of persons to continue to enjoy their privileges. There is no power which would enable him to allow those circumstances to continue. Although the Minister may be very sympathetic and these people may put up a case which completely convinces him, I cannot see how he would be able to allow them to continue enjoying those privileges under the Act as it stands, because he could not limit an authority in terms of Section 100bis, and he could not allow the board to grant that authority. He could not allow a normal licence to continue in terms of this amendment. In terms of the amendment it would be illegal if he were to allow an hotel to continue supplying liquor to that class of Native, yet he would not be able to replace it with an authority without throwing the bar open to all Natives.
Somebody has to put this clause into operation, and that is the Government. Now I have already said—and I cannot carry it any further—that we will go slowly as far as putting this clause into operation is concerned, until we have heard those people. I am going a very long way to meet the hon. member.
I appreciate that, and I think the hon. the Minister would like to help these people. Would he not then consider amending this to the extent that it would stand over until the consolidating Bill comes before us, which is only a matter of a year ahead?
No, I would rather reconsider it when the Bill comes before us again.
Well, I hope the hon. the Minister will find that he is able, legally, to withhold this provision from one hotel and not from another. Because once this Bill is promulgated and Section 94 is amended, it will then come into force and effect. There is no provision in the Bill before us which will enable the Minister to apply part of the Bill and not to apply Section 94 as amended.
Surely there are ways of not putting it into operation.
By administrative action?
I will leave it at that stage then, Mr. Chairman, if Ministers of Justice do things illegally.
This matter also affects the constituency I represent, and I should just like to say that I am quite satisfied with the explanation given by the hon. the Minister in regard to it. I am quite certain that if we apply it in this manner, the licensees in that division will not be prejudiced, and that they will have sufficient time to rectify the matter. I want to thank the hon. the Minister for giving us this concession, and I am sure that the people will not suffer loss under this way of dealing with the matter.
I should like to refer the hon. member for Durban (Point) to Clause 23.
Clause put and agreed to.
On Clause 8,
We appreciate that the hon. the Minister has decided to withdraw Clause 8 which extends the tot system to the whole Union. The negativing of Clause 8 by the hon. the Minister means that the tot system, with all its abuses will continue to prevail in the Cape Province and in the Orange Free State. In the Cape a farmer may supply any male Native in his employ, who is of or above the age of 21 years, with one and a half pints of unfortified wine or kaffir beer. In the Orange Free State, any bona fide employer may supply any male Native employee with a quarter pint of spirituous liquor or one pint of other liquor. But here the age limit is only 18. I wish that the hon. the Minister had brought in an amendment repealing Section 96 of the Liquor Act and substituting a provision prohibiting the supply of liquor by an employer to his non-European employees, whether gratis or as part reward for services. I would like to see the whole of this system abolished lock, stock and barrel, and I would like to see an employer prohibited from supplying his employees with liquor.
I put an amendment on the Order Paper, the object of which was to repeal Section 96 of the principal Act, but it has been pointed out to me by the hon. member for Constantia (Mr. Waterson) that the amendment I have placed on the Order Paper repealing Section 96 would not achieve the object I have in view, because Section 96, whatever its weaknesses may be, does in fact restrict the quantity and types of liquor that may be supplied to the employee, and that its repeal would allow an employer to supply whatever liquor he might think fit to any Coloured employee in his service. That would only exaggerate the practice which has already caused so much abuse. I am therefore not proceeding with my amendment.
This tot system is, however, an archaic procedure and it would, I think, be in the public interest to abolish it altogether and to prohibit employers, as I have said before, from supplying tots in any shape or form. The Cape Coloured Commission of 1937 and the Meaker Commission that followed in 1945 have dealt at great length with the ruinous effects, to which many of our Coloured labourers are addicted, of alcohol upon a large section of our Coloured population. It is not necessary for me to cover the ground which they and other commissions have set out so clearly. It is, I think, enough to say that it is a matter of common knowledge that alcoholism to which many of our Coloured labourers are addicted is one of the major factors in the submersion of a big section of the Coloured people, and the economic loss to the country in the lowering of the quality of our labour supplies. I think that that cannot be over-estimated. The intemperance that is rife among them not only weakens their power of resistance to disease, but it prevents them from providing for their families and giving them the necessaries of life. It results in a great deal of misery and unhappiness. The early craving for liquor among our young non-Europeans has often been acquired through the consumption of liquor under this pernicious tot system, but no government has ever been strong enough to act on the recommendations submitted to them, and so the abuses continue to this day. It is a
system, Sir, that has been condemned for years by numerous influential government commissions and by our Churches and welfare organizations.
As far back as 1918 a Select Committee of this House was appointed to inquire into drunkenness in the Western districts of the Cape. That committee came to the conclusion—
But instead of recommending abolition, the Committee, I submit, shirked its responsibility, and by a majority of four to three recommended that the quantity to be given be restricted by the farmers themselves.
The Cape Coloured Commission, reporting in 1937, recommended abolition, and the Meaker Commission of 1945, after an exhaustive inquiry came to the conclusion—
In support of this recommendation they said, inter alia—
In another passage they added this—
With these conclusions many of us are in full agreement, and I hope the hon. the Minister will find some means of doing away with this tot system when he introduces the consolidating Liquor Bill next session.
May I formally move the omission of this clause. I should just like to explain that I am pleased the hon. member for East London (City) (Dr. D. L. Smit) is not proceeding with his amendment. His amendment would have repealed Section 96 of the principal Act and that would have had the effect that the tot system would have been extended to the northern provinces. The point of view held by the hon. member would not have permitted then to support the amendment he would then have proposed. Now, as regards the rejection of Clause 8, I indicated at the second reading debate that Clause 8 and Clause 16 were to be withdrawn. In other words, the position in connection with the tot system will remain as it was under the principal Act. What a peculiar thing it is that in South Africa there are so many heads and so many points of view. On the one hand there were people who were in favour of the withdrawal of all the restrictions in connection with the tot system, and that it be left free completely. On the other hand there were representations to me that in heaven’s name we should leave it as it is. We thought there was still some time, and as there is another bill coming, there is time to consider these matters. That is why I move that Section 8 be omitted. The effect of that is that Section 96 of the Act remains and that the tot system in the Cape Province and the Free State will remain as it is. In the other two provinces, Transvaal and Natal, the prohibition will apply, namely, that employers may not give liquor to their non-European employees. In other words, the position remains unchanged as it is now.
I think that my views about the tot system are commonly shared by other hon. members in this House. I think that all members desire the abolition of the tot system as such. I want to say to the hon. the Minister that I regret that he is taking this step to retain the existing Act as it is at present and that we will still have on our Statute Book the legalization of the tot system. It amounts to the fact that the tot system will continue in existence as a legal factor laid down in the Act.
At the request of your side.
Mr. Chairman, it is not my request.
No, but it is the request of your side.
I repeat, it is not my request. My request is that we should get rid of the tot system altogether. I regret that the hon. the Minister has not given consideration to the recommendation contained in the Malan Commission Report, which is very clear on this point, that all reference to the so-called tot system should be removed from the 1928 Liquor Act and that no person be allowed to supply spirits to labourers on farms. We are dealing with this legislation with the object of seeing that the illegal practices that existed in connection with the distribution of liquor as far as non-Whites are concerned should be brought to an end. But by retaining the position as it is at present we are still placing a large number of Whites in the position that they break the law every day and every week. The position is quite ridiculous by leaving it as it is now, for this reason, that the Bantu worker on any farm anywhere in South Africa except in the Cape, the Transvaal and Natal, can freely purchase liquor in the town but his employer is debarred from offering him a drink. That is what we are perpetuating. So any time a White man offers a non-White a drink he technically breaks the law.
You are wrong.
That is the law in the Transvaal.
Not after this Bill.
If the hon. member knows what we are discussing he will appreciate that the existing law in the Transvaal is that if any White man supplies liquor to a Bantu he breaks the law. [Interjections.] The hon. member has been asleep. I had the same difficulty as the hon. member for East London (City) (Dr. D. L. Smit). I attempted to have an amendment presented but have since been told that it would be ruled out of order if this clause is negatived, but what I want to ask the Minister is this. He has given assurances that if the consolidating Bill is presented next year and sent to a Select Committee he will include a provision to the one he has now, so that the matter can be more fully discussed in the Select Committee in terms of the report of the Malan Commission.
I cannot make a promise for Parliament. I can only say I will do it if Parliament wants a Select Committee.
If the Bill is sent to the Select Committee before the second reading, surely the Committee can take evidence and make recommendations, but I hope the Minister will include a provision in the consolidating measure similar to this, because to my mind we are getting into a ridiculous position. We are trying to legalize the consumption of liquor by non-Whites of all races and on the other hand every White man breaks the law if he offers a drink to a Bantu. What is the Progressive Party going to do? They hold house meetings with Bantu and every time they offer a Bantu a drink they break the law, whereas that Bantu can quite legally walk into a bottle store and buy liquor. [Interjections.] We all want to see the abolition of the tot system. The way I read this clause was that this was an effort to get rid of it. What is wrong with any employer giving a Native a tot of brandy when he has worked late? It is ridiculous to suggest that every farmer in the country will offer drinks free to his employers every few hours. It is just as ridiculous as the hon. member for Rustenburg offering his labourers part of his tobacco crop as a present. I think there is a lot of wrong thinking about this issue, as was pointed out in the report of the Malan Commission. I want to see it made illegal for any employer of non-White labour to offer liquor to his employees as part of their remuneration. I appeal to the Minister to give this matter a great deal of further consideration and not to be afraid of possible telegrams he might receive from Nationalist farmers in the Cape. There are many conflicting views about this. I ask the Minister to act in the best interests of South Africa. The Minister must have withdrawn this provision for certain reasons. He did not do so because the hon. member for East London (City) asked him to do so, and I appeal to the Minister to give the matter further consideration.
I have to object to what the hon. member for Turffontein (Mr. Durrant) said there. It seems now as if the hon. the Minister was in favour of the retention of the tot system, but it is at the request of the other side of the Committee. They said they would permit it to go through easily only if it were left so in the Bill. Now it seems to me there is no co-operation between the members of that party. The Minister intended to go through with this. He did not withdraw it on his own initiative, but at the request of the other side. I think the other side should accept it in this form, and the Whips should talk to them.
I do not think this is the type of amendment one should allow to go through silently, because it deals with one of the biggest evils in the country. I agree with the last speaker when he says that the Minister withdrew the original proposal as the result of a request from this side. What happened is that as the result of criticism from this side of the effect of what the Minister originally proposed, it was then realized by the Minister that his proposals in effect not only extended the tot system to the rest of the Union, but took off all the brakes with regard to the extent to which it could be applied. Similarly there was plenty of evidence of the lack of consideration having been given to many of the most important features of the Bill. Now the Minister has withdrawn his proposed amendment to Clause 8, but what is the result? In the provinces where the tot system originally existed it remains in force. If there is one facet of the liquor problem in this country on which the Minister has had ample evidence from commission after commission, it is on the inherent dangers of the tot system. It is a most pernicious system. The hon. member for Ceres and others drew attention to the vast difference between the Coloured problem as regards the people living in their areas and those living in many parts of the Peninsula. I agree with him entirely. Much of the problem there is inherited as the result of the tot system in the wine-farming areas. I go so far as to say that the responsible wine farmer would welcome the abolition of the tot system as it is to-day. Many of the more responsible types do not apply the tot system; they give other real benefits instead. The country as a whole will not be prepared to accept the perpetuation of this system, which is completely destroying the Coloured people in those areas. You only have to look at them to see the difference. This is a fact we have to face. If the Minister wants to improve the liquor distribution he must take action to remove that iniquity. The Bill in itself will completely change the position. Where the Coloured man hitherto has been restricted in his access to liquor, under this Bill many of those restrictions will be removed and therefore he will be free, if he so desires, and out of his own pocket, to purchase liquor and not have it supplied to him by the farmer as an incentive to do his work. I agree with the hon. member for Turffontein on this point, that if we are going to adopt the principle enshrined in this Bill and make liquor freely available to the Coloured races, then side by side with that, we have to take action to remove evils which have grown up as the result of their not having free access to it, and this is one of them. The Minister has had ample evidence of the dangers of the tot system. What has stopped the Minister from taking the advice not only of his Commission but of the previous commissions, and to move for the abolition of the tot system?
I do not regard these provisions in regard to the tot system as permanent, for the simple reason that it conflicts with the principle of this Bill, namely that in all of the provinces there should be uniform application. That is why I have already said that I expect that an opportunity be given to those who are complaining that they did not have an opportunity to make representations. If there are other new arguments, for or against the tot system, after the Commission has heard them, let us then hear them. I should like to say to the hon. member for Turffontein also that I do not believe that the proposition we are laying down in the Law to-day can be permanent, because it conflicts with the principle of the Act. There has to be a revision. We appreciate what the Commission did. They went into the matter very thoroughly, and made certain recommendations, but if there still are other people who consider they have not yet had an opportunity of making representations, let us hear them, and let the matter be reconsidered when we come forward with the consolidating measure.
I am afraid I cannot agree with the line taken by the hon. the Minister that in regard to the tot system, despite all the evidence we have, we must proceed very cautiously and slowly. Yet in regard to the rest of the Bill there is no question of going ahead cautiously. Bang, overnight we take the brakes off in regard to the supply of liquor. What is the reason, and why is it necessary to make so marked a difference between the tot system and the other provisions of the Bill?
I should like to reply to the hon. member for Turffontein (Mr. Durrant). Section 94 of the Act prohibits the supply of liquor to a Native throughout South Africa, whether you sell it to him or whether you give it to him. Section 95 contains the prohibition in the Transvaal, Natal and Free State, also as regards Coloureds and Asiatics, but not as regards the Cape. The Cape is excluded from the operation of that section. Clause 7 now repeals Section 95, so that the Transvaal, the Cape and Natal are brought into line with the Cape as regards the Coloureds and Asiatics. Then we come to the clause we are dealing with now, Section 96, which deals with the tot system. If the tot system were applicable in the Cape for Coloureds, it is now only applied to the other provinces for Asiatics and Coloureds. But what the hon. member for Turffontein is pleading for is not the tot system. He is not concerned about that. He is concerned about those mixed parties on the Rand where the police will still be able to apprehend those people under Section 94, and that is why he is urging the abolition of the tot system, not for the employees or employers, but so that those mixed parties can continue, and so that the police cannot stop them.
It is obvious that the hon. member for Heilbron (Mr. Froneman) does not know what I was talking about. If the hon. member would look at the clause under discussion, Clause 8, he would see that it says that the provisions of sub-section (1) do not prohibit the supply by an employer of wine containing not more than 12 per cent by volume of alcohol and malt liquor to any Native, Coloured person or Asiatic over the age of 18 provided it is not given as part of the wages. That is perfectly clear, and that is all I was talking to; I was not talking to Section 94. The hon. member should know that the Committee has already agreed to the deletion of Section 95.
Clause put and negatived.
On new clause to follow Clause 7,
I want to move the following amendment—
8. Section 96 of the principal Act is hereby amended by the deletion in sub-section (1) of the words “in sub-sections (2) and (3) and” and by the omission of subsections (2), (3), (4) and (5).
I will tell the Minister why I am moving it at this stage and what the effect is. Section 96 (1) prohibits any person from supplying a Native, Asiatic or Coloured with any alcohol.
Order! I am not certain whether this amendment can be accepted and therefore I do notthink I should allow the hon. member to discuss it. I suggest that some other member should move that the amendment stand over until the Committee has dealt with the rest of the Bill. If I decide to accept it it can then be proceeded with.
On Clause 9,
I am thoroughly opposed to this clause which is really the crux of the whole Bill. It is a clause which I think will bring about tremendous changes in the lives and customs of millions of primitive people, changes that will not only have unfortunate consequences upon their social customs but upon the health and the character of the individual, with loss of self-respect and misery for his family and a marked increase in crimes of violence and rape. What has shocked me to the roots is the provision permitting any Native man, woman or child of 18 to buy brandy at any bottle store or wholesale house.
I agree with the hon. member that this clause is the crux of the Bill and that it contains the principle, and whilst I will allow him to state his case very briefly I cannot allow any discussion against the principle. The hon. member must confine himself to the clause without attacking the principle.
Am I not permitted to discuss the effects of the clause?
No, the hon. member can discuss that at a later stage. He must now discuss the details of the clause.
What I want to discuss is the supply of brandy to Natives.
That is the principle.
On a point of order, will it be possible to delete any portion of this clause such as the supply of liquor to women or children over 18?
The hon. member cannot expect me to give a ruling on a hypothetical question, but I may point out that the hon. member for Umbilo (Mr. Oldfield) has given notice of a similar amendment. In regard to the hon. member for East London (City), I may say that I am prepared to allow him to state his objections, but he cannot attack the principle, and the principle is that liquor will be freely available to all races.
I must say that you are taking me by surprise, Sir. Then I propose to move—
That Section 100ter be deleted.
I regret that I cannot accept such an amendment because that also conflicts with the principle of the Bill.
On a point of order, may I say that this Clause 100bis deals with the special authority for the sale of liquor to Natives. That is the principle, and I believe that you have rightly said that we cannot now contest the principle. But Section 100bis deals with the authority it is proposed to put into the hands of the Minister to authorize the supply of liquor. Section 100ter states that the holders of bottle-store licences may supply Natives. I would suggest that if the hon. member for East London (City) wishes to move the deletion of that section it would not impugn the principle of the Bill, but it would deprive…
The hon. member can discuss anything except the principle of the Bill.
May he not move that bottle stores should not sell to Natives?
The hon. member can propose that somebody else except the Minister be empowered to grant licences, but he cannot move that liquor should not be made available to non-Whites.
I hope you will allow me to say that there is a distinction between the sale or the supply of liquor and the distribution or the channel of distribution. I submit that if the hon. member for East London (City) wishes to suggest that the channel proposed in Section 100ter should not be permitted, he should be allowed to do so, because if that is eliminated it would mean that the only channel would be through the authority granted by the Minister. I submit that the hon. member is entitled to move the deletion of Section 100ter.
I find that the hon. member will be in order in moving the deletion of Clause 100ter.
Well, I will go ahead, Sir, until you stop me again. I was just saying that what had shocked me to the roots is that provision which permits any Native man, woman or child of 18 to buy brandy at a bottle-store or wholesale house. Such a provision is contrary to established Native custom, and it will upset the whole life of these Native people. To-day we have reached a very grim period in our history, the consequences of which are immeasurable. Sir, the Government is not satisfied with bringing financial ruin upon our country…
On a point of order, the hon. member is still discussing the principle of the Bill. He has written out his speech and he is simply reading his notes. He is dealing with the amendment moved by him that 100ter be deleted.
The hon. member may proceed.
The Government are now setting out in this clause a policy of degrading the bodies and souls of those whose welfare had been committed to their charge, and this clause—I say it advisedly—is a wicked conception from which we and our children are going to reap bitter fruit. The Minister said in his reply to the second reading debate that one of the objects was to remove the discrimination that operated against the Coloureds and the Natives. Sir, that statement has a hollow sound, coming as it does from a Minister and a Government whose policy is to perpetuate racial discrimination in every other sphere of life. In any case, it is difficult for me to understand why the Minister should pick out this form of racial discrimination for special treatment when there is so much racial discrimination that is costing the Government millions of pounds to administer and is causing far more ill-feeling amongst the Natives. This talk of discrimination is in fact just a lot of sop to soothe the Government’s conscience. I want to repeat what I said at the second reading, that if the Government were honest with themselves they would admit that the most important reason why this clause is being passed is to let the Natives have strong drink in the interests of the wine farmers and the co-operatives of the Western Province, because these people are in need of an extra boost for their product. Sir, it is a chilling reflection that the White man’s prime move should be dominated by our economic situation. The statement that the provisions of the Bill will absolve the police from the unpleasant duty of raiding Native residential areas is only partly true. The shebeens and houses of ill-fame will continue to flourish whatever facilities you may make available for the rank and file. The increase of crimes of violence and sexual assaults will more than counterbalance the time saved by reducing the number of raids. Sir, the Minister has not given an answer to the question I raised from this side of the House as to where the unattached Native will go to consume the bottles of brandy procured at the bottle store. Thousands of single Natives in our towns have to live in municipal hostels, and I ask him whether they will be allowed to take their liquor to these hostels to be drunk there and shared with their friends? We know perfectly well what will happen if that is allowed. The week-ends in those hostels will be pandemonium let loose. They are prohibited from drinking in any public place or any private premises. They will surely not be allowed to take the brandy to their employers’ premises, and I ask the Minister where are they to go? The only place is the shebeen or the countryside where there can be little police supervision. There is a significant statement in paragraph 54 of the Malan Commission’s report which deals with the activities of the bootlegger and which bears out what the hon. member for South Coast (Mr. Mitchell) has said, namely that the facilities for obtaining brandy under this Bill, instead of lessening the activities of the shebeens, will enable the shebeen queens to increase the production of their pernicious concoctions. All our liquor legislation is based, as it should be, on the fact that there are sections of our population who in their present stage of development are unfit to exercise sufficient self-control, and who must be protected by restrictions in the interests of all sections of society. In making these sweeping amendments, the Government have lost sight of the fact that the Native population of the Union is composed of many different tribes in various stages of development, and in matters of this kind you cannot deal with them all on the same basis. The detribalized urban Native has developed aspirations which are quite foreign to his brothers in the kraal, and he often finds himself in positions which have no traditional background for him and in which more often than not he is thrown back on his animal instincts. It is obviously impossible for the great mass to advance at a uniform rate, and we are confronted with a position where the vast majority are illiterate and heathen while those who have received some instruction, vary from the many who possess the mere rudiments of learning to the comparatively few who may take their place on the same intellectual level as ourselves. To give them all the same privileges in the matter of strong drink is to court disaster. The needs of the middle class Natives of good character should be met by suitable exemptions from these laws, not by a temporary permit. Having said that, I cannot express too strongly the grave danger of throwing open the doors of our liquor houses to any Native over 18, of whatever class or character and I shall vote against this clause.
I should like to reply immediately to the hon. member who has just resumed his seat. Here he objects to the age of 18 years. The principle has already been adopted, but while your permitted him to refer to it again, I should like to ask the hon. member to look at Section 92 of the Liquor Act of 1928—
Yes, but that is wrong.
Now the hon. member says the law is wrong.
Yes, it ought to be 21 years.
He says the law of 1928 is wrong. I only wanted to correct him and point out that it is a principle that has been accepted in South Africa for 33 years already, and that is why I am unable to understand why the hon. member is making such a great fuss about the age of 18 years. I do not want to argue on the principle again. I only hope the hon. member for Paarl (Mr. W. C. Malan) will say something in connection with the charge that has been repeated by the hon. member, namely that it is the winegrowers we want to benefit here. There can be nothing further from the truth.
I really rose to move the amendment as printed in my name—
(e) any bona fide employer regularly employing and housing Native labourers as defined in paragraph (a) of the definition of “Native labourer” contained in subsection (1) of Section 2 of the Native Labour Regulation Act, 1911 (Act No. 15 of 1911),;
in line 49, after “shall” to insert “(after deduction of any legal costs incurred by the Minister in connection with the recovery thereof)”; in line 50, after “authority” to insert “after consultation with the Treasury,”; in line 68, after “Minister” to insert “after consultation with the Minister of Finance,”; and to add the following new sub-section, at the end of the proposed new Section 100bis:
(12) The provisions of the Precious and Base Metals Act, 1908 (Act No. 35 of 1908 of the Transvaal), the Trading on Mining Ground Regulation Act, 1910 (Act No. 13 of 1910 of the Transvaal), the Orange Free State Metals Mining Act, 1936 (Act No. 13 of 1936) and of any other law restricting or prohibiting the carrying on of trade or business on proclaimed land or land held under mining title, shall not apply to the sale of liquor on such land by the nominee of any employer referred to in paragraph (e) of sub-section (1) under any authority granted or renewed under this section: Provided that any such authority shall only be granted or renewed after consultation also with the Minister of Mines.
In connection with the insertion of a new paragraph (e) which I am moving, I wish to explain that there are employers who employ large numbers of Native labourers, as defined in the Native Labour Regulation Act of 1911. I am referring to Natives employed on the mines and in other industries. Most of the companies and other great industries already provide kaffir beer gratis to their employees under ministerial authority in terms of Section 127 of the Liquor Act. The reason for that is that in this way employees are prevented from going to drinking places outside. It is very important that these mines and industries should be able to be given authority to supply liquor to their employees that are housed in compounds. The control is good there, and if liquor were not sold there, it will only mean that the Natives will visit other drinking places outside the compounds, and it would be a pity if they have to go from a place where there is strict control to a place where the control might be less strict.
Will you also deal with the profit aspect?
I am coming to that. The employers are very anxious to prevent their Native employees going outside the compounds or places where they are accommodated. A possible solution would have been to permit them to supply liquor to the Natives without charge, but in view of the withdrawal of Clause 8, this will not be possible. The profits made from these sales of liquor will be dealt with in accordance with sub-section (7) of Section 100bis. The insertion of a new sub-section (12) in my amendment links up with this. There is at present a prohibition against, inter alia the sale of liquor on mining land, and the amendment I am now moving here will provide for this. It will be observed that under this provision, authority for the sale of liquor can only be granted after consultation with the Ministers of Mines and Bantu Administration. The proposed insertion of certain words in lines 50 and 68, is done at the request of the Treasury. Provision is made thereby that in the determination of the fee for the authority and the decision on how the profits should be dealt with, the Treasury and the Minister of Finance should also be consulted. It is provided further that in case the Minister has to recover the profits by way of a court case, his legal costs shall first be deducted before the profits are disposed of.
I move the amendment standing in my name on the Order Paper—
Sir, as I understand your ruling the principle of on-consumption sales, with or without off-sale privileges shall be by way of a special authority issued by the Minister, has been accepted. I also accept the Minister’s assurance that the whole of this Bill is an experiment to get away from the social evils which exist today. Sir, I do not like the use of arbitrary powers, but I can see justification for a provision by which there is some sort of arbitrary power such as is suggested here in an experiment of this nature. My amendment however is designed to impose some restriction on the exercise of this arbitrary power by limiting the right of sale to local authorities, that is. urban local authorities, divisional councils and Bantu rural authorities. My amendment, if accepted will not conflict with the amendment which the Minister himself has just moved. Whether it is a good arrangement that the bona fide employer should have the right to sell liquor, I reserve for consideration at some other stage, but it does not conflict to my mind with the experiment of the Minister’s, nor does it conflict, as I have said, with the amendment which I have moved. The right to exercise arbitrary powers is usually a dangerous right to grant to any person, irrespective of whom that person may be and how well he may be advised. But the danger becomes much greater when the power is to give monopoly rights to individuals, which result in the accrual of private profits. The acceptance of my amendment will possibly eliminate some of the amendments which appear on the Order Paper. The amendment certainly will not hamper the experiments which the Minister intends to carry out. but it will certainly close the door to any danger of nepotism. I accept that there may be individuals who can safely be entrusted with a monopoly power in the public interest or who will not necessarily allow that power to be abused. I accept that that is so but we cannot legislate for the exceptions, and if there is to be legislation of this nature, I would suggest that the hon. the Minister hold it over until the proposed consolidated measure comes under consideration, because to give an arbitrary power of this nature, which will create a monopoly right which can result in private profit is a very serious matter to which I hope the Minister will give careful consideration.
It will not only lead to abuse but to dissatisfaction.
It will; I am coming to that. It would be wrong in principle to allow a valuable privilege of this kind to go to an individual unless other individuals are given an equal opportunity to offer themselves for selection and unless the selection is left to an independent body such as the liquor licensing boards are. In the case of the liquor licensing boards the public safeguard of course, is that the selection is made openly, where justice cannot only be done but can be seen to be done. That is the reason why I feel very strongly that the clause as it is worded to-day goes too far. To put arbitrary powers in the hands of anyone to select an individual or an association of individuals to be granted this right, is going far too wide and far beyond the need of the times and the experiment which the Minister is trying to carry out in this instance. The safe thing, of course, will be to leave it to local authorities where the question of private profit is not so much in issue and which the Minister can adequately control. I accept that it will not conflict with the question of the employer. As far as I am concerned, the acceptance of this amendment will remove one of the main objections which I have against the Bill as it stands.
The hon. member for Johannesburg (North) (Mr. Plewman) has just said that this clause is going far too wide. But I want to return to the speech which the hon. member for East London (City) (Dr. D. L. Smit) has just made. The hon. member for East London (City)—and I have every respect for him as one of the oldest members of this House—has shown to-night that he deserves one name which should be spelt in capital letters, namely ANOMALY, because during the 11 years which I have sat in this House, whenever any discriminatory legislation has been introduced into this House, he has risen and opposed it. Now that we are introducing legislation which aims at the removal of all discrimination as regards the consumption of liquor, he is opposing this legislation. I say that we should write the hon. member’s name in capital letters namely ANOMALY.
Will you be prepared to extend the provisions of this clause to South West Africa?
South West Africa has its own Liquor Act. The hon. member for Salt River (Mr. Lawrence), while he was Minister in the United Party Cabinet, said that they would govern South West Africa in the spirit of the mandate. This Government still says the same thing to-day and the spirit of the mandate prohibits us from doing so.
I have actually risen to ask the hon. the Minister for an explanation. The principle of this Bill is that we are going to abolish the discrimination which previously existed as regards the purchase and consumption of liquor by the various race groups in this country and this principle was approved of at the second reading. I should now like to ask the hon. the Minister whether my interpretation of Section 100bis is correct when I say that he will be able under this section to allow all licensed hotels which are under-privileged, which do not have off-sale licences, to act as distribution points as well. The reason why I ask the Minister to reply very clearly on this point is as follows: If we approved in principle at the second reading of the principle that we would remove all discrimination as regards the purchase chase and consumption of liquor, then it would be an anomaly if on the other hand we were to discriminate as regards the sale of liquor. The Malan Commission recommended inter alia that shops selling groceries should also be entitled to sell natural wines and beer. But these licensed but under-privileged hotels in this country—and there are hundreds of them—do not only provide food; they do not only provide liquor for on-consumption, but they also provide accommodation and they provide accommodation to the poor man who falls in the salary group of £60 to £70 per month.
The hon. member must confine himself to the clause unless he wants to move an amendment.
No, I am only asking for an explanation.
The hon. member must either move an amendment to the effect that such hotels must be added to the list…
No, I am asking the hon. the Minister whether my interpretation of this clause is correct, namely, that he has the right to grant these facilities to such hotels. I personally interpret the clause in such a way and if that is the position, I am quite satisfied. If it is not the position, the hon. the Minister must please tell me so because if it is not, we shall on the one hand be removing all discrimination as regards the purchase and consumption of liquor by all races in this country, and on the other hand we shall be introducing a definite discrimination against the people who must sell liquor. As I interpret the section I am satisfied that the hon. the Minister and the bodies which he will appoint will have that right. If he can give me an assurance on this point, then I am satisfied that this provision is in absolute harmony with the principle of the Bill on which we have already voted. All I want to ask the hon. the Minister is that he should give us a clear indication of what the position is in this regard because if that is not the position, then I must really say that we shall be doing something anomalous which really causes me concern.
I realize that this clause which is now before the Committee embodies one of the main principles of the Bill and therefore it is probable that this clause will be passed. Taking that into account I wish to move an amendment which I believe will in some small measure be a safeguard against a further abuse of liquor. I wish to move the amendment standing in my name on the Order Paper—
This amendment affects Sections 100bis and 100ter dealing with the question of the supply of liquor to Natives. I move this amendment so as to increase the age at which liquor may be supplied, to the age of 21. I know that one of the first objections that will be raised to this amendment is that under the principal Act the age is set at 18 years of age, and that therefore there would be a difference in the ages at which liquor will be available. However, I move this amendment in the light of the experience in regard to European youth. It has been found that on numerous occasions young persons of the age of 16 who are sometimes still at school, are able to pose as 18-year-olds and obtain strong liquor. This is a matter in which a great deal of latitude seems to have been allowed in the past and it has caused a great deal of difficulty in connection with welfare work. If this difficulty exists in the case of European youths, I foresee that it is going to be even more serious among the Bantu youth, because it is going to be increasingly difficult for the licensee to estimate the age of these young Bantu. Whereas a young person may be able to pose as an 18-year-old when in fact he is only 16, it would be most difficult for that 16-year-old to pose as a 21-year-old. I believe that if the age limit is raised to 21 years of age, large numbers of young persons who are perhaps under the age of 18 and who might be able to obtain liquor by pretending that they are 18, will be precluded from obtaining liquor. We must take into account the fact that these persons who are in late adolescence are at a difficult age as far as discretion is concerned. It must be remembered that generally speaking Native youths have received a lower standard of education, and in addition to that it must be borne in mind that it is against Native custom for a young person to partake of strong liquor.
Is it not only a repetition of the 1928 principle?
I am dealing with the extension of the principle of the sale of liquor to an 18-year-old Native youth. There is no provision in the principal Act to enable an 18-year-old Native youth to purchase liquor. I am dealing specifically with the extension of that principle in the principal Act to Native youths.
My point is that if the principle of 18 years is wrong in one case, it must be wrong in the other case as well.
Yes, I appreciate that, but I am unable at this stage to move an amendment to increase the age to 21 in the principal Act; obviously I can only deal with the Bill and with the clause before the Committee. I cannot move an amendment to amend the Act of 1928 in regard to the age limit.
Business suspended at 6.30 p.m. and resumed at 8.5 p.m.
I would like to speak in support of the amendment moved by the hon. member for Johannesburg (North) (Mr. Plewman). The object of his amendment is to exclude, at this stage anyway, the entering of private or personal licences into this particular branch of the liquor trade. I think it is an amendment which the hon. the Minister should be prepared to accept. You see, up to now, the Bantu have been restricted to obtaining kaffir beer through agencies such as are nominated under (a), (c) and (d) of this particulars clause. Now (b), which the hon. member for Johannesburg (North) proposes to omit, refers to “any association of persons”. It means that any other place, such as an existing hotel or a new licensee, would be able to supply this new type of liquor to non-Europeans.
There is another effect of this amendment, namely, that a Native company would be precluded from selling liquor to their own race.
That is a drawback. I accept that. But I would like to complete this particular point. You see, I feel that if the Minister would confine the supply of these new spirituous liquors, to the Bantu more especially, through the channels, the same channels through which he can get his kaffir beer (because they are not affected by this), that would be an improvement. You see, under this Bill, kaffir beer will not now be supplied to other sources, for example hotels, or off-sale departments. In other words, the Bantu will still have to go to the beer halls run by municipalities, divisional councils and the like to get his kaffir beer. I would like to put it to the Minister that it is a good thing that, when he goes to drink, he should have the option of still drinking kaffir beer. The hon. the Minister himself has said that this is an experiment, and I would like to put it very seriously to him that at this stage he should at least confine distribution to the existing channels where the Natives have the option of kaffir beer, as well as spirits which are being offered now. He should have the choice of the two. Because if a licence to supply spirits is given to say an existing hotel in a non-European area, and the Bantu goes to that hotel, he only has the choice of drinking wines or spirits. If he wants kaffir beer, he has to go to a place where only kaffir beer is obtainable. I think it would be a good idea at this experimental stage to give him still the choice of drinking kaffir beer, and not where he has to show off perhaps a little by going to such a place where he can only get spirits. Later on, possibly, as the Minister finds that this thing settles down, he can bring in an amendment which we might be very ready to accept, but it is a suggestion I would like to put to him at this stage to make both spirits and their customary drink, kaffir beer, available in the same way. I think, too, that in such organizations as are run by the city councils, town councils, divisional councils and the like, the Minister will find that he is able to exercise a degree of control over the distribution of these spirits, which he won’t be able to exercise if at this stage these are given out to private entrepreneurs. I think it is something the hon. the Minister should really consider. Another aspect is this, that when once you put this out to private enterprise of the type envisaged in (b), you are going to get competition amongst those places for the trade which is offering, and I think that at this stage such competition might possibly be a bad thing, and it might upset the whole working of the provisions of this Bill. I voted for this Bill, as the hon. the Minister will know, but I still feel that this will be a means of ensuring a gradual introduction. In a year’s time, when the consolidating Bill comes forward, I can see no reason why, if the Minister is satisfied, he should not come back and say right, I am satisfied now, that the thing is working all right, and now I am going to ask this House to extend the supply channels so that it can be bought more freely in other places.
I have actually only risen to reply to the hon. member who has just sat down, because he has raised a particularly good point. What he has said regarding local authorities is, of course, very true. The only point which he has perhaps overlooked is that the provision of liquor to Natives by local authorities only, where they can obtain kaffir beer to-day, will perhaps not go far enough. Provision cannot be made for all of them. In the case of our large municipalities there will be no difficulty, because all the municipalities have such beer halls which are distributed throughout the city or parts of the city. In that regard there would be no difficulty but then the hon. member must also understand that when we make laws, we must bear in mind the position in areas where there are no such beer halls. But before I take this aspect any further, I must first emphasize that the whole idea underlying the distribution of liquor by our beer halls is precisely that the Bantu must be encouraged to drink his own beer, as the hon. member has also urged, in preference to any other sort of liquor. That is the first thing which we should like to impress on him.
May I ask the hon. member a question? Will the hon. member be prepared to accept my argument, subject to the proviso that if no existing beer hall is available, it can be supplied through another channel?
That is actually the object of the other provisions which are made. Where there are beer halls it is not necessary to apply the other provisions. That is why I personally am prepared to accept what the hon. member has said. Where beer halls are not available—and there are far more cases where they are not available than where they are—other provision must be made, and that is why the hon. the Minister has made provision for divisional councils, and he is providing for the possibility of which the hon. member has perhaps not thought, namely, that in the development of Native residential areas, hotels will have to be erected. When such an hotel is erected, it is unthinkable that such an hotel will not have liquor facilities and if there is not a Bantu with sufficient money to tackle such an undertaking, a company may be formed to do so. For this reason further provision must be made for such a company which may be established. The hon. member is quite correct in saying that the basic premise is that preference must be given under all circumstances to beer halls where they exist. Where they do not exist, some other provision must be made and then these other provisions come into the picture and provision will still be made for the Bantu.
I desire to move the amendment standing in my name—
(12) Within two weeks after the commencement of the ordinary session of Parliament the Minister shall lay upon the Table in the Senate and in the House of Assembly a report of all authorities granted or renewed under sub-section (1) or (2) during the preceding calendar year stating the manner in which the profits shall be dealt with in terms of each authority.
I would have preferred, as will be seen from the Order Paper, an amendment I had previously placed on the Order Paper, and which I do not intend to move, which asked that the legislation as a whole be reviewed after a term of years, as I regard this legislation, as has been said on all sides, as an experiment, and it would be healthy if it were reviewed after a term. There are objections from the Minister and his Department, primarily on the score of uncertainty. I don’t know if there would be any more uncertainty in regard to that type of authority than there is to-day in regard to ordinary liquor licences. But there is something to be said for that argument, and after discussion with the Minister and his Department, it has been agreed that this amendment might be acceptable.
Yes, I am prepared to accept the amendment.
Then I do not want to debate it any further.
I support the amendment moved by the hon. member for Von Brandis (Mr. Higgerty) and I am glad the hon. the Minister is prepared to accept it. I would have hoped that a term could have been put to this legislation, but under the rules it cannot be done and we must therefore rely on the introduction of the Bill which the hon. the Minister intends to introduce next year. I hope the Minister will find himself able to publish that Bill later in the year, as he has promised. That makes this Committee Stage easier in view of the fact that to an extent we can regard this as legislation of a temporary character.
The clause with which we are dealing is one of the most important clauses of the Bill, and I would like to move the two amendments standing in my name. The first is—
Provided that no such authority shall be granted unless the Minister has, not less than 14 nor more than 30 days before such grant, published in the Gazette a notice stating the name of the proposed holder and the address of the premises in respect of which it is proposed to grant such authority and calling upon any person ordinarily resident within the district in which such premises are situated and desiring to object thereto, to lodge his objection in writing with the Secretary for Justice not later than 14 days after publication of such notice, and unless the Minister or such other person acting under his directions has duly considered any such objection.
I want to say at once that I do not regard this as a satisfactory provision, but it was the best I was able to think of in the circumstances and in the light of the amendment already moved by the hon. member for Johannesburg (North) (Mr. Plewman). I hope the hon. the Minister will be prepared to accept that amendment. If he should find himself unable to do so I hope he will be prepared to accept the amendment that I have just moved. Sir, the position is that it is traditional in respect of this matter of the issue of licences that there should be an opportunity for all persons to apply. Let me say at once that if the grant of licences in these particular circumstances is confined to bodies such as local authorities in their various forms and public bodies, then I could have no objection to the grant of those licences without publicity having been given. But if the provisions of this Bill are to be translated into law in their present form, which leaves the door open for the granting of licences to private individuals and to private profit-making bodies, then it does seem to me that it is essential that there should be checks in respect of the granting of licences of that character. I say at once that in moving this amendment, and the other I am also about to move, I do not wish to have it understood that I wish them to be applied to public bodies of the nature of local authorities, but only in respect of private individuals. Mr. Chairman, the principle on which we have always acted is that interested persons will have the right of making application; there will be an examination of the applications; the premises in respect of which the applications are made will be investigated and examined, and it is then the duty of the licensing boards which sit as courts, to choose the best application, that is to say the one which is best in the public interest. Sir, I do wish to stress to the hon. the Minister that I feel very strongly that the grant to private interests of licences of the nature which is envisaged here, is something which should only be considered where there is no public body available. If an application by a private person is to be granted, then there should be a right vested in the public, as there is under the original Liquor Act, of making application and having a court decide which of the various applications is to be considered. I submit that there is an important principle at stake and I do hope that the hon. the Minister will be quite frank with us and tell us what he proposes in this regard. I would say that the amendment of the hon. member for Von Brandis, which the hon. the Minister says he is prepared to accept, does provide some form of check, but of course it provides for notice after the event. I do hope that if private licences are to be granted in terms of this provision, the hon. the Minister will be prepared at the very least to give an assurance to this House that when the consolidating Bill comes, he will try to get back to the time-honoured procedure that persons have a right to make application, that there will be a free opportunity of application and that a judicial body will decide to whom, if any, of the applicants a licence is to be granted.
I come to my second amendment which is also a proposed addition to the new Section 100bis as follows—
(12) Any person ordinarily resident within a district may apply to the Minister in writing for information as to the name and address of the holder or proposed holder of any authority under subsection (1) in respect of premises situate in such district, the period for which any such authority has been or is proposed to be issued or renewed, the conditions and restrictions imposed or proposed to be imposed under sub-section (1) in respect thereof, the provisions of this Act which have been made or which it is proposed to make applicable thereto under sub-section (4), and of the manner in which profits derived or to be derived from such authority are required to be dealt with under sub-section (7).
Again I am concerned principally with applications other than applications by bodies such as local authorities and I hope that the hon. the Minister will be able to reassure me in respect of these matters. I do not wish to go into details. The principles are the same as those which underlie the first amendment. The whole idea is that before the grant of licences there should be publicity, and where that is not being done, there should be a simple method by which the public can obtain information in respect of licences which have been granted. I hope that the hon. the Minister will be able to give this Committee the assurance that the steps which he proposes to take, and which I hope he will translate into law, whether in this form or some other form, will be such that they do not constitute a departure from the principle of what has applied in the past. I say that realizing fully that in the particular circumstances which apply to this Bill, it is difficult to apply the existing law as it stands and that this is clearly a case for special legislation. I hope the hon. Minister will be able to satisfy us that justice will be done in respect to the applications. I submit it can only be done if there is full publicity, if there is full information given to the public, and particularly if applications, if they are to be accepted from private or semi-private organizations, will be treated in such a manner that there is a fair opportunity for all and that the best and most suitable applicants are chosen.
The hon. member for Karas (Mr. von Moltke) has raised an important point in regard to the question whether consideration will be given to off-sale privileges to certain hotels. My reply to him is: Yes, but not at this stage. Consideration will be given to off-sale privileges to hotels, but that will only be done in connection with the framing of the second Bill to which I have referred.
The hon. member for East London (City) (Dr. D. L. Smit) has moved an amendment to delete Clause 9. As I have already said this afternoon, the main principle is to do away with the almost total prohibition which at present applies to Natives. If this clause is negatived, as proposed by the hon. member, Natives will be able to obtain liquor for off-consumption only, and then only on permit. The hon. member wants to achieve that by deleting the clause, and I am sorry that, as I have already indicated, I cannot accept that amendment.
The hon. member for Johannesburg (North) (Mr. Plewman) has moved an amendment, the result of which would be that individual Natives, or a Native company, would be precluded from being authorized to sell liquor to members of their race. In the course of the last few weeks I have received many representations from several quarters that the sale of liquor to Natives should be confined to private enterprise and that this privilege should not be granted to local authorities. If the clause is amended as suggested by the hon. member, it would mean that a local authority can decide whether or not it will provide on-consumption facilities for Natives. This could lead to a lot of abuse and dissatisfaction, and I am sorry I cannot accept the amendment. The hon. member for Durban (Umlazi) (Mr. H. Lewis) supported the hon. member for Johannesburg (North), but may I say to him that there are only about 50 municipalities which supply kaffir beer. If possible liquor and kaffir beer should be obtainable on the same premises. One of the greatest objections to this Bill has been that local authorities will be allowed to compete in the liquor trade with private enterprise. I regret that I cannot accept that amendment.
Then there is the amendment moved by myself, which I am going to accept.
The hon. member for Springs (Mr. Tucker) has moved a long amendment consisting of two parts. I am sorry I cannot accept his amendment either. As far as the policy is concerned, there is a lot I am inclined to agree with. I will go into the matter. But these amendments of his deal with the details of the applications to be published and the calling for objections. It is also proposed to provide for a right of inspection of authorities issued and the conditions attached thereto. Now this can best be done under regulations under Section 173 (f) of the Act. I hope the hon. the member will have a look at that. The Government intend to promulgate regulations dealing with a number of matters under the new Section 100bis as soon as possible. The suggestions made by the hon. member in his amendments will receive very careful consideration when the regulations are drafted.
There is also the amendment moved by the hon. member for Umbilo (Mr. Oldfield). His amendment to Clause 9 seeks to prohibit an off-consumption licence and the holder of an authority under Section 100bis from supplying liquor to a Bantu under the age of 21 years. By virtue of Section 92 of the Act, as I have indicated by way of interjection, persons over 18 years can obtain liquor on licensed premises. This applies to Whites as well as non-Whites, Bantu included. If the amendment is accepted, it will mean that Bantu will be discriminated against for no sound reason. I think those are enough reasons not to accept the hon. member’s amendment.
Then there is the amendment moved by the hon. member for Von Brandis (Mr. Higgerty) which I am prepared to accept. It will enable hon. members to ascertain to whom authorities have been granted and under what conditions. The House will then also be in a better position to review the manner in which these provisions are being administered and what the effect will be.
Under this clause there are two new sub-sections, 100bis and 100ter, two methods of distribution of liquor to Bantu are laid down in this clause. In the first instance distribution will take place under authorities granted by the Minister, either to private persons or to nominees of any urban authority or other authorities that are tabulated in the Bill. But the second means of distribution will be through existing licensed premises. In terms of 100ter the Minister will allow Bantu throughout the country to purchase their liquor requirements from any particular bottle store. The difference between these two methods of distribution is that on the one hand the licensee of the bottle store has to fulfil certain qualifications as laid down in the Act, whereas the persons to whom the Minister grants authority, either for the establishment of a bottle store for off-consumption or in respect of any licensed premises for on-consumption, that person to whom the Minister grants the authority has not got to fulfil any of the qualifications of the bottle-store licensee who gets his licence through a licensing board. Now the amendment that stands in my name is in two sections, and I will move the first section first—
In effect this would mean that before the Minister grants authority to any person, any private individual, any Bantu or the nominee of any group or association of persons, or to the nominee of any divisional council or other authority, he has to take due regard to the provisions of Sections 65 and 136 of the Act, which are provisions which a licensing board must take due regard of before it issues a licence to a licensee for a bottle store in any of the magisterial districts throughout the country. It seems to me that a licensee of a normal bottle store who is entitled to sell liquor to a Bantu is being discriminated against by the Minister being able through his authority to grant to whom he likes, without any regard to any qualifications whatsoever, authority to sell liquor. Now Section 65 of the Act lays down the qualifications of licensees. It deals with persons to whom licences may be granted. There are certain qualifications. For instance a person cannot be under the age of 21. He cannot hold office of profit under the Crown. There are varying aspects of these qualifications which a licensee has to fulfil, and it seems to me perfectly reasonable to ask that a person to whom the Minister grants an authority should fulfil the same qualifications as a person who obtains a licence from any licensing board.
With regard to the provisions of Section 136, it is perfectly clear that before a licensing board may issue a licence to any person who has applied for a licence, they have to obtain a report from the police authorities, and the police are given certain powers and duties to report on these persons that they are people of good character, that they are people who can conduct a licence in responsible manner, etc. It seems to me that it is not unreasonable to ask the hon. Minister to take due regard to those provisions as well, because if the Minister does not accept this amendment that I have moved, the impression will be left abroad that persons in a privileged position, selected at random, without having their background investigated, or who may be subject to public suspicion in one way or another, are being granted authorities by the Minister. What, in fact, I am suggesting is protection for the hon. the Minister in the office he holds and the power he is going to exercise in terms of the new Section 100bis. All this amendment asks is that the hon. the Minister should pay due regard to the provisions of Sections 65 and 136 of the parent Act. Whether a man sells liquor to a Bantu under a licence granted by a Licensing Board, or whether he sells liquor to a Bantu under an authority granted by the Minister, he is doing so for the sake of profit, irrespective of whether he is a White man or a Bantu. I ask the hon. the Minister not to discriminate on this basis. Those people who will be responsible for making liquor available to the Bantu of this country for their own profit should all, on an equal basis, be subject to the same provisions of the Liquor Act of to-day.
The second portion of my amendment I will move after I have heard the reply of the hon. the Minister, because it hangs on the same issue.
Clause 9 is the most important clause of this Bill. It is the clause which provides the machinery for implementing the principle which was accepted at the second reading, namely, the principle that the sale of liquor may now be authorized to Bantu persons. It is an extremely important clause. It makes an innovation in our Licensing Laws, in as much as it proposes to exclude the jurisdiction of the normal Licensing Boards and to substitute for that jurisdiction the authority of the Minister.
The arbitrary power.
Yes, the arbitary authority of the Minister. That, in itself, as the hon. member for Johannesburg (North) (Mr. Plewman) pointed out earlier this afternoon, is an arbitary authority. It is an arbitary authority capable of conferring a very valuable monopoly, in terms of the clause as it stands, upon an individual, apart from a nominee of an association.
Before I come to deal with that, however, in order to enable this Committee to follow the arguments which will be adduced in support of various amendments, let us have clearly in our minds the machinery which the hon. the Minister contemplates. This is special provision for the sale of liquor to Natives. In terms of the proposed new Section 100bis—
- (a) any urban local authority,
- (b) any association of persons,
- (c) any divisional council, or…
certain other bodies—
Now those are very wide powers indeed. The Minister attempts to assume, in terms of this new Section 100bis (1), the position of a licensing authority empowering the individual, either on his own behalf or on behalf of some local authority or association of persons, to offer liquor for off-consumption or on-consumption to Bantu persons. The authority thus granted is valid for 12 months and may, in terms of the provisions of Clause 9 of this Bill, be renewed from time to time for a further period of nine months.
Or it may be withdrawn.
Or it may be withdrawn at the behest of the Minister himself. Then sub-section (7) of the new Section 100bis goes on to say that—
The Minister can, therefore, give authority to an individual acting on his own behalf, to operate as a licensee, or he can give such authority to an individual acting on behalf of an association of persons, or of a local authority. The clause then goes on to say, in the new Section 100ter, that quite apart from any authority which the Minister himself may issue, the normal sources of sale for off-consumption in the so-called White areas will be able to provide off-consumption facilities to Natives. In other words, bottle stores and hotels having off-sale privileges will now be able to sell to Natives. So Clause 9 establishes two sources of sale for off-consumption, one through the normal channels of bottle stores or licences with off-consumption privileges, and the other through a licence granted by the Minister. The normal channels have not the right to sell for on-consumption. But that right may be given by the Minister to his nominee, whether it is in a so-called White area or in another area.
It is to be observed, Mr. Chairman, that the provisions of this clause must be read in conjunction with Clause 2 of the Bill, which has not as yet been passed by the Committee, and which now stands over. Clause 2 of the Bill, if accepted, would read as follows—
etc., who has been given authority by the Minister, under this Act, to sell liquor. In other words what the Minister is asking this Committee to do is to give him authority to issue licences for off-consumption and on-consumption to individuals, or to the representatives of local authorities, or associations of persons, without any regard to the normal provisions of the Liquor Act of 1928, as amended. To that proposed provision, certain amendments have been moved. I am now trying to sketch the general outline in order to deal with these amendments.
There is an amendment on the Order Paper by the hon. member for East London (City) (Dr. D. L. Smit) to delete this clause. Then there is the amendment for the hon. member for Johannesburg (North) (Mr. Plewman), who seeks to admit certain words in the new Section 100bis, the effect of which would be that the Minister’s power to grant authority would be limited to giving such authority to persons who are nominees of local bodies and not to individuals. Then there is the amendment moved by the hon. member for Turffontein (Mr. Durrant), the effect of which would be that before the Minister can grant such authority he must have regard to the provisions of Sections 65 and 136 of the Liquor Act. The hon. member for Turffontein has pointed out that an ordinary member of the public, who seeks to have the privilege of a liquor licence granted to him, must satisfy certain requirements. He must not be subject to certain disabilties. For instance, it shall not be competent for a Licensing Board to grant a licence in favour of any person who, within the Union or elsewhere, has within the preceding ten years had a sentence of imprisonment or is an un-rehabilitated insolvent; is under the age of 21; or holds an office of profit under the Crown. Now that last is a very important point. There is nothing in this clause, as it stands, which will preclude the Minister from granting the facility to an individual to carry on trading, even though he holds an office of profit under the Crown. There is nothing in this clause preventing the Minister giving that privilege to a Member of Parliament.
Or even to the hon. member for Heilbron (Mr. Froneman).
It may well be that we will have to have an amending Bill to the Pensions Act, to enable that hon. member to draw a pension for being a licensee under the Minister’s authority.
He has to be a fit and proper person. Are Members of Parliament not fit and proper persons?
Well, I hope so. That is a tardy admission by the Minister. Does the hon. gentleman suggest that those we have legislated for earlier are not fit and proper persons to have these parliamentary pensions?
Quite seriously, Mr. Chairman, I think the amendment that has been moved by the hon. member for Turffontein is a cogent one. I believe that the amendment moved by the hon. member for Johannesburg (North) is also a cogent one. And, as one who has given support to the principle in this clause, namely, that we should now make available the supply of liquor to Natives, I believe most strongly that it is essential that the machinery for distribution should be ringed around with sufficient control to ensure that there will not be abuse, either on the part of those who are entitled to sell liquor or on the part of those who are entitled to consume it. The hon. the Minister is running very grave risks indeed by taking power to give authority to individuals. I asked him at the second reading what individuals he had in view. I asked him what of the profits. And in his reply on the second reading the hon. the Minister said that where the individual was a nominee of an association, obviously the profits should be ploughed back into some social welfare objective; but that if the individual was operating on his own behalf, he should have the profits. Well, I am completely against that, and I shall fight that to the bitter end. I am entirely against the system under which the hon. the Minister will be empowered to give valuable liquor licences, creating possible monopolies in certain areas, to individuals without having any regard whatsoever to the provisions of the Liquor Licensing Laws. [Time limit.]
Just prior to the dinner adjournment I moved the amendment standing in my name on the Order Paper, seeking to increase the age limit at which liquor may be supplied to Natives from 18 to 21 years of age. Unfortunately the hon. the Minister has indicated already that he does not intend to accept this amendment. However, I wish to put further arguments in favour of my amendment, and I therefore ask the hon. the Minister to reconsider his decision in this matter. I feel that we are dealing with an entirely new experiment—to use the hon. the Minister’s own words—in regard to making available strong liquor to the Natives peoples. I therefore believe that we must try and find some safeguards to avoid the difficulties that arise in regard to young persons obtaining strong liquor. And I also believe that the case of the Native person is slightly different to the case of the other racial groups in this country.
Before developing that argument, however, I should like to answer the hon. the Minister in connection with his reference to the principal Act. He referred to Section 92 of the principal Act which lays down that no liquor shall be supplied to any person under the age of 18. However, I should like to draw the attention of the hon. the Minister to the fact that the Act is not consistent in this regard because in Section 96 (2) it is laid down—
So that the principal Act is not consistent in regard to the age limit which is elsewhere set at 18. I believe that the problem of the urban Bantu youth is a very real problem indeed, and I feel that this provision which makes strong liquor available to Natives at the age of 18 is going to aggravate the behaviour problem that already exists in a number of Bantu townships. This is something which is contradictory to the customs of the Native people, that liquor should be made available to these young persons. In the circumstances I think one must have regard to the practical difficulties that are going to be involved. I did mention briefly the difficulties in regard to European youths obtaining strong liquor, but as far as the Bantu youths are concerned I think it is going to be far more difficult to impose this restriction of the age of 18 years. We must remember that in many instances the Bantu does not know his correct age, so that there will have to be an estimate of his age. It will be very difficult indeed for the licensee to have to estimate the age of a Native who is approximately 18 years old. I feel if the age limit were 21 years there would be less likelihood of a young person under the age of 18 being supplied with liquor. It would mean that an older type of Native, in terms of years, would be entitled to a supply of liquor. This is therefore a safeguard that should be incorporated in this clause. The estimation of age could be precipitated because in terms of the new Section 100ter in regard to off-consumption sales, licensees will still be required to keep a sale register. The Bantu do have an estimate of their age entered in their reference books, and one finds that their ages are often estimated by the Bantu Commissioner. That would therefore be a guide for the licensee, so that he would be enabled to tell whether a person was under the age of 21. If the licensee does commit the offence of providing liquor to a person who is not entitled to receive it, the penalties are most severe, and I therefore think that this will be a safeguard for both the licensee and for the Bantu.
This brings me to the question of the control of liquor that is being made available to these young persons. I do appeal to the hon. the Minister to take into account the fact that in this Bill we are extending this privilege to the Native people. It is on those lines that I look to the hon. the Minister to provide some safeguard to ensure that liquor is not misused and does not fall into the hands of young persons who have perhaps not yet reached the age of discretion and who do not realize the severe dangers of taking excessive quantities of strong liquor at that young age. I believe that this could lead to the aggravation of the tsotsis problem if this liquor becomes readily available to Bantu youths. It is therefore in the interests of the Bantu youth that this type of safeguard should be incorporated into this Bill so that a degeneration of the behaviour problem will not occur. I sincerely appeal to the hon. the Minister to give this amendment further consideration in the light of the arguments which I have put forward and which I believe justify an increase in the age limit laid down in this clause.
I would appeal to the hon. the Minister to give reconsideration to the acceptance of the amendment I have moved. The hon. the Minister gave three reasons as to why he felt he could not accept this amendment. The first one was, he said, that it would not then be possible to give a special authority to a Native or to a Native company. Now, Sir, the hon. the Minister really makes no case in that, because there is no evidence yet that there is going to be any demand from a Native or from a Native company to supply liquor. I think the hon. the Minister must bear in mind that this is an experiment. And an experiment at this stage could be a very dangerous thing if it is used to give facilities and authority to a Native or a Native company to exercise this power as a distribution centre. Moreover, as I have indicated, we do not legislate for isolated cases. There might be special cases. I have heard of an instance where there is, possibly, a suitable Native who runs a type of boarding house in Johannesburg, but that is an isolated case. As I have already indicated, as an experiment it would be a dangerous thing to give an open authority such as this.
The second reason advanced by the hon. the Minister was that there was a claim by private enterprise that this should be left to private enterprise and that this privilege should not be allowed to local authorities. I accept that that is a point of view. But is that a point of view which should be accepted here? The Minister is not deleting the provisions in regard to local authorities. How can he? And I think he retains that provision correctly. But merely because private enterprise claims that local authority should not be granted the authority is no reason to introduce private enterprise, because of this extreme danger of the possibilities of abuse in the exercise of arbitrary power. We already have in this Bill what we call a tot system: surely we do not want to bring about the possibility of a spoils system as well. If the choice must be between giving it not to private enterprise in this case, or the danger of nepotism, and all the other dangers that go with arbitrary power, then I suggest the second alternative is the one to which the Minister should give heed.
The last reason that the hon. the Ministergave was that there might be a local authority that did not want to exercise these powers and did not want to become a distribution centre. All I can say is that it seems to me that if that had to be the case, then it was a very good reason for not exercising the authority there. Because if there is a demand for it, the local authority would be the most suitable body to deal with it, and if they do not want to deal with it, then again it seems to me that a very good case is made for not giving authority to anybody in that area. Great anomalies are likely to come about if an authority is granted to one local authority and not to another. Again, I say that the choice here is between no supply and giving it to a private individual. It seems to me that at this stage of an experiment, no supply is the one choice that should be made in those circumstances.
I would therefore appeal to the hon. the Minister very strongly to give reconsideration to this amendment, because if an individual or an association of individuals is to be allowed this power, then some provision must be added which will make it impossible for this danger of nepotism to arise. As I indicated earlier, there will have to be some adequate provision whereby no individual will get this authority unless other individuals are given an equal opportunity to offer themselves for selection, and that certainly no selection of an individual should be made unless it can be done by an independent body openly, a body which then can not only do justice but can do justice when it is seen to be done.
I have risen because I should like to oppose the amendment of the hon. member for Johannesburg (North) (Mr. Plewman). The effect of his amendment is that no private persons and no private undertaking will be included amongst those who will be authorized to control distribution points. I have risen immediately to point out that the present liquor distribution is based on the White population alone. We will now also have to deal with the Bantu areas. Take an area such as the Transkei. There the existing distribution points are based on the White residents in those areas who are very few in number and who are distributed in various towns which we can describe as White spots in that area. But the liquor must be provided to all the Bantu in that vast area. Now the hon. member asks that only local authorities, associations of persons, divisional councils, etc., and in the Bantu areas regional authorities and tribal authorities, should be authorized to establish distribution points. He wants to eliminate the individual Bantu completely from the running of distribution points in these areas. We must oppose this suggestion because the intention is also to give the Bantu the opportunity to establish himself in this type of business and to share in its profits in these areas. This part of the business world which the Whites enjoy in their part of the country, namely the right to enter the liquor trade by establishing of various distribution points should also be available to the Bantu in their areas. We must also give the Bantu the opportunity to participate in the liquor trade in those areas. If the hon. member’s amendment is accepted, there will be no question of the Minister authorizing it under this section. That is the point, and that is why I oppose the hon. member’s amendment.
Then I want to say something about the amendment of the hon. member for Turffontein (Mr. Durrant). If all these conditions are to be imposed on such persons—I think it is Section 65 of the Act—then it will be very difficult to make them applicable to the Bantu as a person. It is easy in the case of the Whites, but in the case of a Bantu it is difficult to impose all these conditions. Hon. members must also remember that this particular section has been inserted by way of an experiment. Next year when the whole Act is consolidated, these matters will be finalized, and then the experiment of the past year will have taught us what we should do.
Are you prepared to allow an authority to be granted to a Bantu person?
Yes, in the Bantu areas, because they must also develop commercially in their areas. That is all I want to say in that regard.
I want to mention another matter. According to the provisions of this clause the hon. the Minister can lay down what type of liquor should be sold--”such kinds of liquor as he may determine”. I want to point out that in urban areas where there are beer halls I also want the Minister to include kaffir beer—Bantu beer as my friend wants us to call it—as a kind of liquor which can be sold. The present position is that the Bantu must buy the liquor and consume it in the beer halls. He may not remove it. I think it will be very unfair that the Bantu can buy the White man’s liquor at a bottle store and take it to his home, but he cannot take his own beer home. I think it will be very wrong if that is to be the position in future. If distribution points are to be established in the urban Bantu areas, then the Bantu beer should also be sold there for off-consumption. I think that after two or three months they will in fact give preference to their own beer and will take it home and drink it there. For that reason I think it is essential that we should lay down at this stage. I also want to remind the House that under the existing legislation the Bantu must still obtain a permit from his employer to brew his beer. I just want to make the suggestion: Seeing that he can now obtain White liquor, has the time not come when he should no longer require a permit to brew his own drink and that he should be able to brew as much kaffir beer as he likes.
I think we are all agreed that this particular clause is really the backbone of the Bill. The principle of the Bill is the free supply of liquor to the Coloured, the Bantu and the Asiatics, and that has been accepted. We cannot deal with that principle in this particular clause, but the clause and its various sub-sections provide the machinery under which the liquor is going to be passed over the counter to people now approved of as being people competent to purchase it. Here I would like very strongly to support the amendment moved by the hon. member for Johannesburg (North) (Mr. Plewman)—I will deal with one or two of the others when I reach them. We continually hear—we have actually just heard it from the hon. the Minister, that this legislation is in the form of an experiment. Frankly I do not like that. I do not like the thought that we are eliminating almost the complete control over the supply of liquor to the non-Europeans, in the form of an experiment. Some of the amendments moved here to-night, and in particular by the hon. member for Johannesburg (North), aim to some extent, to removing that experimental aspect, from the clause. His proposals are founded upon experience which has been built up over the years in the distribution of liquor on the old system. In many cases the experience thus gained could be largely repeated under the new provisions of this scheme. The hon. member for Johannesburg (North) has moved this amendment in which he seeks to eliminate the private individual aspect included under the Minister’s authorization scheme, from obtaining authority to open a new distribution point. Before dealing with that I want to say that this clause in the main sets up, for South Africa, a duality in the system and the control of the distribution and sale of liquor. On the one hand there will be the existing Liquor Licensing Board and on the other hand this system of “authorization”, and the two systems are inevitably bound to overlap. As a result of that overlapping unless considerable care is exercised to see that where they do overlap there is uniformity, we are likely to have trouble. The hon. member for Johannesburg (North) has attempted to iron out some of the overlapping and to bring about uniformity in that way. He is also attempting to secure some control over the new authorities control in a general sense, so that the proceeds from the sale of the liquor would be ploughed back to the benefit of the people who consume that liquor. Broadly, that is the principle underlying the granting of a liquor authority to a local authority in a Bantu area. In other words, there will not be an individual profit made out of the new scheme. I can see nothing wrong with that. The hon. the Minister has mentioned that representations have been made to him to ensure that private enterprise is protected in this regard. But private enterprise is not interfered with in any shape or form. In terms of this Bill private enterprise will continue in the form of licences granted under the authority of the Liquor Licensing Boards. In that sense there will be no interference with them, except that the scope of the custom in their premises will be considerably enlarged as a result of the new clientele that will come forward as a result of this Bill. In future they will be able to sell virtually unrestricted supplies of liquor to any of the three colour groups, at their premises. So that in that sense private enterprise reaps a considerable benefit from this Bill.
Then we come to the Minister’s distribution points, where he authorizes these distribution centres for a particular purpose, mainly dealing with the Bantu. In that regard I see nothing at all against the request contained in the amendment of the hon. member for Johannesburg (North) that these should be directed through the local authority and that the proceeds should be ploughed back. It must be remembered that the local authority in every area where there is a Native township, is responsible for all the expenditure in regard to health services, the welfare of the people, and the general day by day services in their areas. And that expenditure is bound to be increased when hard liquor is sold in those locations to the Natives. Do not let us blink at that fact. Money which should have gone in food will now, to a certain extent, be spent in liquor and we will have a greater measure of malnutrition, which is a problem the local authorities will have to deal with on a larger scale.
The hon. member for Salt River (Mr. Lawrence) very rightly drew attention to the fact that this particular clause is the crux of the whole Bill. This clause contains the mechanics of the Bill for the increased supply of liquor. In the amendment that the hon. member is going to move, I think he follows very much the same lines as the hon. member for Johannesburg (North). When we come to that I should like to deal a little further with that particular point.
I now want to refer to the licensee, the authorized person who is going to operate these new distribution points. I want to support the plea that has been made that a system similar to that in existence in terms of the Liquor Licensing Boards should be applied to vet those people and to see that they are fit and proper persons to hold that authority. In the case of the Liquor Licensing Boards there has to he a police report on the individuals concerned, to testify to their fitness to hold a licence and to testify that they have no convictions, and various relevant other matters. I think that that is essential in a matter such as this. One knows how strict the licensing boards are and how the police try to enforce conditions which make it essential that the man operating a liquor licence is a man of integrity. How much more necessary is it to have those safeguards when they act under these new authorities. There I would ask the Minister to ensure that that particular aspect is taken into consideration, as well as the other necessary controls. It will have to be done under regulations but there are a hundred and one things that will have to be done to ensure that once the authority has been given, the premises in which it is to be operated, and the method of operation do conform to the conditions under which these authorities are granted. Those who have had experience know that it is one of the most difficult tasks in the world because where you have a very fine strata of people who try to improve their licensed liquor premises you will also find there are those who also try to skimp and get round the corner to evade the conditions. The police themselves—it has been one of the biggest headaches the police have—had to try to see that the conditions that they themselves have imposed are in fact carried out by some of the licensees, after their licence has been granted. Therefore I think it is imperative that whatever conditions are set up should approximate closely to those of the liquor licensing boards, which are based largely on the evidence and the reports and recommendations of the police—who have had first-hand contact with this trade and it is their recommendations year after year that are used by the board to guide them in coming to a decision—and I would urge that the Minister would give that particular point his most careful consideration. In answer to a question by the hon. member for Springs, the hon. the Minister said that he cannot accept the suggestion made. There will have to be a very far-reaching organization set up involving many people to ensure that those conditions are applied. It does seem to me that in a country that is short of manpower and which is short of money, to have a duplication of the system that is in force in the operation of liquor licensing boards, overlapping to a large extent in the same area, is a sheer waste of manpower and money.
It seems to me that we are seeing difficulties where there are no such difficulties. I am thinking particularly of the speech which has just been made by the hon. member for Simons-town (Mr. Gay) in which he has joined the hon. member for Johannesburg (North) (Mr. Plewman) in finding fault with this right being given to an association of persons. I want to give the hon. member as well as the hon. member for Johannesburg (North) the following example. In the Northern Transvaal there are many towns which have a town council, but there is no body which can or is prepared to distribute liquor. An urban local authority will have to undertake such distribution. It is therefore eliminated. The second is the divisional council. There is no divisional council, so that the divisional council cannot distribute the liquor. In the third place, there is no Bantu area or tribal authority which can undertake this task. We were asked as a commission what we were going to do under those conditions. There are 30,000 Natives. They have repeatedly approached the local authority and said that they want beer, but the local authority says that it does not want to distribute the liquor because it says it does not want to erect beer halls. What would the hon. members for Simonstown and Johannesburg (North) do under those circumstances? There is only one solution. A body must be established and whether that body is a private association or a body of persons does not matter, but something must be created to meet the requirements of the Bantu under such circumstances which cannot be left out of our reckoning. The whole idea is after all to make the system work smoothly, and not to give people the opportunity to earn profits or to make money at the expense of the Bantu, or to make the system collapse. We are trying to do our best for the Natives, and for this reason it is obvious that the people who control this distribution will try to make the system function as smoothly as possible. As far as the hon. members for Simonstown and Salt River (Mr. Lawrence) are concerned, they are not correct in what they have said. They say the Minister wants the licensing boards not to operate as far as these matters are concerned and the Minister must do all these things, but have they not read what Section 100bis says? It reads, inter alia, as follows—
In other words. the Minister… [Interjections.] But after all we trust the head of the Department, and I am not only referring to this Minister but to the head of the Department under whom the legislation will fall. I do not think it is far to cast doubt on the character of persons. That is nonsense after all. [Interjections.] I say it would be nonsensical to base an argument on the character of persons. If the granting of such licences is to be subject to any conditions, the Minister himself may say that the licensing board must approve of the licensee. [Interjections.] That is the advantage of the legislation as it stands, namely that one can change and one can introduce whatever provisions one wishes in order to make the legislation function as well as is at all possible. But when one is in Opposition, one must have faith that the Government will do its best. The hon. member has said that before a licence is granted it is necessary that the conditions should be just as good as those which apply in the case of a bottle store. It must comply with certain conditions. Consequently when such a new licence is granted it must also comply with those conditions. [Interjections.] In any case I just want to say that the conditions with which such licensee must comply should be far stricter in the case of a bottle store. It may be an hotel or a place where the conditions are still stricter.
In conclusion I just want to refer to what the hon. member for Umbilo (Mr. Oldfield) has said about the age of 18 years. This is the age at which a Native begins to pay taxes and we have not yet considered changing this. This is an important age in the life of a Native. But what is really a little strange is that to prove his argument he has quoted from Section 96 (2) to prove that a non-White must be 21 years of age before he can obtain liquor in the Cape. But let him read the next sub-section, namely sub-section (3), which says that it is 18 years in the Free State. Why did the hon. member say nothing about that? It seems to me that if we approach this matter along these lines and we try our best to make the system work smoothly, then we must not devote so much time to these minor points without giving those concerned an opportunity to show that the important aspects will be a success. As regards the bodies which have the right to control licences, we shall be so busy persuading the other bodies, the divisional councils, the Bantu authorities and the local authorities. to continue with the licences during the first few months until the consolidating measure is before us—then only will we be able to judge whether we should grant licences to private individuals.
This clause is really the machinery of the whole Act of giving the White man’s liquor to the Natives, and it needs our earnest consideration. There is one thing underlying the clause which I do not like. That is the added power which the Minister gets right through the clause. In 100bis it has been pointed out that the Minister now acts on his own wishes alone. The hon. member for Hercules has pointed out that the Minister may make regulations and grant licences subject to such restrictions and conditions as he may think fit, but the whole of the power is again in the hands of the Minister. Right from the beginning my attitude has been that this should go to the Liquor Licensing Board, and I therefore support the amendment of the hon. member for Turffontein. It is all very well for the hon. member for Hercules to say that we must have faith and that under this clause the Minister may call in the licensing boards. But we are dealing with legislation and if it is the intention of the Minister to call in the licensing boards, why does he not say so in this clause? As it stands. the Minister in his wisdom may grant authority to any person or any association of persons or to any local authority. In this experiment we are making, I think it is a most dangerous thing to grant a licence to any person without the conditions that normally operate. But I have said that right through the clause powers are given to the Minister which I do not like. I find that in Clause 6 the Minister says that no authority shall be issued to any person or the nominee of any association of persons in respect of premises situated in the area unless the Minister or the person acting under his direction—there again. the Minister has the right to give any person acting under his direction the right to do this—unless this person has first consulted such local authority, and there it ends. He can consult such local authority, but he need not heed that local authority. Again all the power is in the hands of the Minister. Then in Clause 7, in regard to profits, the profits derived from the sale of liquor shall be dealt with in the manner specified by the Minister. To put a severe case, the Minister might decide that any profits made in Johannesburg must be spent in Cape Town, but what would the Minister do in the case of a private person? Is he going to take away his profits? The hon. member for Hercules said that we must take it seriously and believe that the people who are going to act under this clause will do it because they are interested in the Bantu and that they are interested in the fair distribution of liquor. But this is contrary to all human behaviour. Any local authority handling this will do so with a view to making a profit, and any association of persons will do it for a profit. Will the Minister say where the profits are going to go? Or will he say that a certain percentage of profits will be dealt with in a certain way?
The Minister has said that he will not interfere with the profits of private persons.
Then my belief in human nature falls even lower. I believe we will find that these people will do it for their own profit and that is where abuse will take place. This is where the screening of these people must take place under the ordinary conditions in which screening takes place for a liquor licence in the White areas. I have said that in this clause the Minister takes unto himself powers which no Minister has ever taken before. I do not think that is right. I have proved the contrary. The hon. member for Umbilo moved that the age of 18 should be changed to 21 years and I want to support that, for the reasons I gave in the second-reading debate, namely that under Native law and custom it is not a habit to allow a young Native to buy beer, let alone strong liquor, and even the age of 21 is too low for my liking. [Interjection.] They start paying taxes at 18, but it is not the Bantu custom to start drinking at that age. I cannot conceive where under any circumstances under Bantu custom they will allow a youngster of 18 to have access to beer. Yet in this great experiment we are making now we are giving the right to a youngster of 18 to go into any bottle store to buy liquor. Of course there is 100quat which provides that any Native, Asiatic or Coloured person who consumes liquor on private premises without the consent of the owner shall be guilty of an offence. I would be most interested to hear from the Minister how he is going to put that into effect, and now he will enlarge the Police Force to take over this duty, because as I said before. I can well imagine 20 or 30 calls coming to the police in one night because people are drinking on premises without permission. There is quite a lot that has to be explained in this clause. I am glad the Minister accepted the amendment of the hon. member for Von Brandis. That will help Parliament to keep a check on what is happening, but there are many other things that need the attention of the Minister.
I wish to move the amendment standing in my name—
In terms of the proposed new Section 100bis very wide powers are given to the Minister. He may select the area and determine the kinds of liquor that may be sold to the Bantu. In other words, the Minister can decide what class of liquor can be sold to Natives in Orlando. He may decide that Natives there may only purchase light wines and beer, but he may decide that in Nyanga they may purchase brandy also. The Minister takes these wide powers. On the other hand, the Minister may say that this is the first step in acquainting the Bantu with the type of liquor consumed by Europeans and he will just make light wine available and at a later stage he will make beer available and later still he will make brandy available. But in 100quin the Minister states that by proclamation in the Gazette he can declare that in any area no liquor can be supplied or sold to any particular class of person. What does that mean? It means that once liquor has become available generally, the Minister can declare that whilst any liquor may be sold in Orlando he can restrict Natives in Cape Town from buying a certain type of liquor, but why does the Minister not give the same powers to the State President to declare that no bottle store shall sell brandy but only wine and beer? There is no logic in this clause. What I am seeking to do here… [Interjections.] In 100bis the Minister has the authority to determine what class of liquor shall be sold in Bantu areas. [Interjections.] I want to put it to the Minister this way, that what I am trying to do is to be quite logical as far as his powers are concerned. I can see the reason for the powers the Minister takes in 100bis to determine the class of liquor, but when it comes to determining the class of liquor a Bantu can purchase in European areas he can not restrict him. It is quite obvious that this power would not have been included in the Bill by the Minister if he did not consider that at some time he might wish to declare that only a certain kind of liquor may be made available. If the Minister did not have that intention and his intention was to make all classes of liquor available, the logical thing to do would be to take these words out of Section 100bis “or such kinds of liquor”, because it is not logical as far as the liquor licensing boards are concerned. Otherwise the Minister’s authorities will make more profits than the licensees will do if they could sell what they like. I appeal to the Minister to be logical about these powers. If the Minister says he cannot accept my amendment, I will move another amendment to delete the power he takes to determine the class of liquor, because it is asking a lot of the Minister to say that he is going to determine how much profit any licensee is going to make from the sale of liquor. [Interjections.] I recognize that a particular area may have to be closed off. [Interjections.] I concede that it is a dangerous power, but the Minister says this is an experiment in regard to the distribution of liquor, but not the general availability of liquor. But there should be no discrimination as to the way in which profits are made from one bottle store area to another, and that is precisely what the Minister seeks if the Bill is allowed to pass in its present form.
Now I would like to reply to the hon. member for Hercules. The House knows that he is one of the most logical debaters in the House. [Interjections.] [Time limit.]
Whilst supporting the amendment moved by the hon. member for Turffontein, I would like to come back to the speech of the hon. member for Hercules and to say I think it is a pity he made that speech. What must have impressed the Minister was that with one exception every one of the amendments to this clause has been moved by members who supported the second reading, in other words, who were in favour of the principle of the Bill, and every one of them is an attempt to improve what we have accepted in principle. But the hon. member for Hercules has come along and in fact said to us that we do not need the Bill at all; we must just pass a simple one-clause Bill saying that we trust the Minister because we think he is a jolly good fellow. The hon. member said that the Minister is a nice chap and we must give him all the power and he will look after this thing, but there is a rumour going around in certain quarters that the price of authorities is going to be quoted on the Stock Exchange and we want to see that that does not become reality. We want to ensure that the powers granted under this Bill, whilst sufficient for the Minister to operate the Bill, will in fact also secure both the interests of private enterprise and will ensure that there is no abuse of these powers. I feel it would be in the interests of the measure if the Minister would take this Committee and the country into his confidence. He must have prepared regulations under which he is going to operate Clause 100. He must at least have clear in his mind the system under which this will operate. and I would appeal to the Minister, in order to allay doubts and to disperse the fears which have been created amongst the public by wild stories which we have heard—about women being raped and murdered and the country being in a state of a drunken orgy and nobody’s lives being safe—all these stories have arisen from the debate on this Bill, and the only way the Minister can allay public fear is to take this House and the country into his confidence and to tell us how he intends to operate this measure. There are numerous points which have been raised and on which people are unhappy, either because there is too much power for the Minister or because the Bill goes too far in extending privileges, or else people are worried because 100quin gives power for the exclusion of areas. All these matters could be cleared up by a frank statement from the Minister. The issues I ask him to cover particularly are these: How does he intend to operate the issue of authorities to private persons or associations of persons? Does he intend to advertise and to give people an opportunity to apply, or will he give it to somebody whom he feels is a suitable applicant? Does he intend to give authorities within ha’f a mile of Coloured areas or Bantu areas? In terms of Clause 3, no licences will be granted within half a mile of such an area without the President’s authority. There is no such qualification in 100bis. Does the Minister intend to issue such authorities within half a mile of Coloured or Bantu areas? In the granting of normal liquor licences, qualifications are laid down. Four amendments have been moved dealing with the question of the granting of these authorities. The Minister has rejected each one for one or other reason, but he has not given those reasons to us. I would ask him whether he is not prepared to use the National Liquor Board? He is not prepared to allow liquor licensing boards to grant the licences; he is not prepared to allow representations to be made to him.
That is not correct. I have already said that I was quite prepared to consult the National Liquor Board.
But the hon. the Minister is not prepared to make them the deciding body.
I am prepared to consult them.
I would like to ask the Minister whether he would accept an amendment which I would like to move if there is any point in doing so, whereby in terms of sub-clause (1) (if he accepts my amendment), in the case of private persons or associations of persons, he would ask the local liquor licensing board to make a recommendation, and in the case of public authorities or councils he would ask for the advice of the National Liquor Board. I am not asking the Minister to bind himself to that advice, but I am asking merely to use the existing bodies to advise him separately in the case of private persons and private interests and the National Liquor Board in the case of public authorities. If the Minister would accept such an amendment, I think he would set at rest most of the fears in regard to sub-clause (1). I can see the Minister’s difficulties. I cannot support the amendment of the hon. member for Johannesburg (North) (Mr. Plewman) in deleting “persons or associations of persons”, because I recognize the need to retain that. I do not think it will work if the National Liquor Board were the only body which finally decided. There must be some discretion in the hands of the Minister in the case of local authorities. So I would ask the Minister to make use of these bodies as a channel. If he would accept that I would move an amendment which would cover that aspect, but I do not want to waste time on it at this stage.
Secondly, Sir, I would ask the Minister whether in sub-clause (4) he would consider that where an authority is granted to a private person or an association of persons, the right to apply to such private person or association of persons the provisions of the Act should be compulsive and not permissive. I can understand that a public body need not have all the provisions of the Act applied to it but when a private person operates in his own interests and for his own pocket, I feel that it should be compulsive that the provisions of the whole Act should apply to such persons. That could be done quite simply by changing “may” to “shall” in sub-clause (4) with a proviso excluding “public authorities”. It is unfair that a person should be able to trade for his own benefit in competition with private enterprise but with advantages in that he has a different type of licence. The other aspect I would like to ask the hon. the Minister to cover is how he intends to use 100quin. He dealt with it in passing in the second reading but I think if he would give us a full picture of how he intends to apply this clause as a whole, including sub-section (1) of 100bis and 100quin, we would feel much easier in our own minds. I would also ask the Minister in such explanation to say how he intends to apply this clause, to confirm or otherwise whether 100ter would apply throughout the country immediately this Bill is promulgated, and whether it is his intention first of all to exclude all areas and then gradually to apply 100ter area by area. If the Minister would deal with these various matters in a statement to the House, I am sure he would allay many of the fears and doubts which this Bill is creating amongst members of the public and he would assist those of us who agree with the principle of the Bill, to assist him in trying to get an improved Bill which we believe will work much better than it will if we leave this clause as it stands at the moment.
I think it is time that I moved the amendment standing in my name—
Provided that no authority shall be granted under sub-section (1) except upon the recommendation of the National Liquor Board established under Section 118bis:
Provided further that no such authority shall be granted, where the premises in respect of which such authority is proposed are situated—
- (a) within the area for which an urban Bantu council has been established under the Urban Bantu Councils Act, 1961; or
- (b) within the area of a territorial authority established under the Promotion of Bantu Self-government Act, 1959 (Act No. 46 of 1959),
Now the purpose of that amendment, Sir, is to make it a condition precedent to the granting of any authority by the Minister, in terms of Section 100bis, that he should have a favourable recommendation from the National Liquor Board in respect of the applicant. This amendment goes further, because it provides that where premises are to be situated within the area for which an Urban Bantu Council has been appointed in terms of the Act which is before Parliament at the moment, or within an area over which a territorial authority has jurisdiction, the National Liquor Board may not make a recommendation without prior consultation with the Urban Bantu Council or the Territorial Authority concerned. There are two principles in this amendment. The first is that the Minister should not exercise a discretion of his own, but that he should act on the recommendation of the National Liquor Board. It is not necessary for me to go over the arguments that have been adduced by hon. members on this side of the House in order to try to convince the Minister of the dangers of assuming these bureaucratic powers which may lay him open to all sorts of criticisms, however unjust they may be. I have no trouble in my own mind concerning the Minister’s discretion. but I have trouble about the principle involved as has been pointed out by the hon. member for Johannesburg (North) (Mr. Plewman). When matters such as these are dealt with, they must be dealt with in public so that no possible suggestions can be made of favouritism or matters of that sort. Whatever Minister is in power. it would be in his own interests and it would be advisable if the Minister could say that he was acting upon a recommendation. After all. Sir. the Minister of Justice when he exercises his discretion under the Criminal Procedure Act, does so on the recommendation of the Attorney-General. Strictly speaking it rests with him to decide on a prosecution or not. But the Minister has repeatedly said that he would not exercise that discretion, except on a recommendation of the Attorney-General. This seems to be an analogous case. We now have the possibility of conferring a very valuable right—may be a monopoly—and a very profitable right on an individual, apart from a nominee of an association or a nominee of a local authority. It seems to me that it is only wise and proper that, in the exercise of that discretion, the Minister should act upon a recommendation of an impartial body which can go into all the facts and give the Minister the benefit of their advice.
The second principle involved in this amendment is that where the premises in respect of which the licence is to be granted—I call it a licence, because an authority is virtually a licence—are situated in an area under the jurisdiction of an Urban Bantu Council, that Bantu Council should be consulted. We have been told recently in this House that additional powers were to be given to these Bantu councils in the urban areas. This seems to be an admirable function for them of an advisory nature. I think they should advise the National Liquor Board in respect of any given application in their area.
That brings me to the point made by the hon. member for Durban (Point) (Mr. Raw). The point raised by him is a matter on which I have not as yet obtained clarity from the Minister. I want to ask the Minister: Who is going to take the initiative in order to set into operation the provisions of Section 100bis? The Minister can grant authority. But in what circumstances is he going to grant such authority? Must applications be made to him by individuals or nominees of associations; and can he act only after those applications have been made to him, or is he going to take the initiative and call upon an individual or a nominee of an association and say: “I propose to appoint you. and to give you authority to sell liquor”? How is the provision going to operate? Under the ordinary liquor laws the initiative rests with the person who wishes to have a licence. He makes application; he is screened by the police; he must not be subject to disabilities, he may not occupy an office of profit under the Crown. A Member of Parliament, for instance. is not allowed to apply for a liquor licence. But what is to be the position here? The hon. member for Durban (Point) said that he disagreed with the amendment moved by the hon. member for Johannesburg (North) that we should exclude individuals. My view is this that the Minister would be justified in granting authority to individuals if he accepts my amendment, and if he acts on the recommendation of the National Liquor Board. In those circumstances I would agree with the hon. member for Durban (Point), and I say we would then be entitled to grant that authority to an individual.
The amendment which I have suggested also offers security against the extravant use of power by the Minister in granting authorities.
I do not think it gives sufficient security, it merely lays down certain prerequisites, it still leaves the discretion entirely in the hands of the Minister whoever he may be. My amendment is that the Minister can only act on the recommendation of the National Liquor Board…
Or a liquor licensing board.
Yes. I said that I was perfectly prepared to accept that individuals should be given this authority if the Minister acts on a recommendation of either the National Liquor Board or a local liquor licensing board. But if the Minister is not prepared to do that, then I certainly support the amendment of the hon. member for Johannesburg (North). I want to go further and tell the Minister this that if he insists on putting this clause through and taking power, or giving the power to an individual Minister, to grant a licence for profit, then not only shall I vote against the clause but I shall oppose this Bill to the bitter end. I shall do my utmost to break it, because I think that is wrong. I regard this as a fundamental matter of principle. I am not prepared to give any Minister, any individual, the right to grant such a valuable monopoly to an individual. And as far as that is concerned, I stand on that point. If the Minister is not prepared to concede this, I am quite prepared to vote against this clause at the third reading.
I listened very carefully to the reply which the Minister gave to the hon. member for Umbilo (Mr. Oldfield). I also listened to the speech made by the hon. member for Turffontein (Mr. Durrant) the last time he spoke and I believe the hon. member for Turffontein is under a complete misapprehension as regards what the Minister intends doing when he implements Clause 100bis. I refer to the fact that the hon. member for Turffontein said that the Minister intended introducing liquor facilities to the Bantu gradually. first wine, then malt and then possibly beer and then brandy. The Minister has no intention of doing anything of the sort. He said so. The Minister intends applying this clause equally to the Bantu as it is at present applied to the Europeans. If that were not so then I would say that the Minister was not correct in the arguments he used in rejecting the amendment of the hon. member for Umbilo, because in rejecting that amendment that the age should not be 18 but 21, he said that if he were to accept that amendment he would be discriminating against the Bantu as far as the Europeans were concerned. The Minister claimed that that would be unfair discrimination against the Bantu. Surely, if that is so it is equally unfair discrimination if the Minister were to do what the hon. member for Turffontein suggested and not allow the Bantu of 18 to have the same liquor as that permitted to the European of 18. That would also be discrimination if he were to do that. I cannot therefore accept the argument that has been advanced by the hon. member for Turffontein and I cannot accept the argument that the Minister used unless he intends to discriminate in the classes of liquor that is to be made available. I want to remind the House that the Minister may not be prepared to discriminate in respect of the type of liquor that he will allow the Bantu to have, but the Act allows him to do so. It says that the Minister “may give an authority the right to sell liquor or such kinds of liquor as he may determine”. Now if the Minister’s argument, as far as the amendment of the hon. member for Umbilo is concerned, is sound then this portion “such kinds of liquor” should be deleted; it should not be there. The Minister should not have the power to discriminate if he does not wish to discriminate. That is the one point.
Another point that I want to deal with is this continual cry that this whole clause is in the nature of an experiment. Mr. Chairman, any of us who have had any experience of liquor and the effects of liquor, will know—and if the Minister wants further evidence he need only refer to the speech of the hon. member for Durban (Central) (Dr. Radford)—that it is the danger of taking that first drink that creates all our problems. The Minister will know that as far as this Bill as an experiment is concerned, once it has been made easy for the Bantu to get hold of strong liquor, and the experiment as a whole fails, he will be faced with a problem far greater than the problem with which he is faced to-day.
Have you ever been in Lourenço Marques?
I am in South Africa and we are now legislating to cover the position in South Africa. As far as Lourenço Marques is concerned, if they have problems those problems are their own. The point I want to make, Sir, is this: If this is an experiment to overcome the difficulties which the Minister and the country have at the moment, and that experiment were to fail, what then? What about all the Bantu that have become addicts—because liquor is a drug—what is the Minister going to do with them? The Europeans present us with a big enough problem to-day, as it is, as the result of alcoholism. The Minister will know, and if he does not know he need only consult the Department of Social Welfare and they will tell him, that amongst those who can obtain liquor to-day, the greatest problem that faces the Department of Social Welfare is this problem of alcoholism. To suggest that we should now experiment with the Bantu people and expect to get a successful experiment by allowing them to have hard liquor is asking this Committee to engage on a most dangerous experiment. Because if it fails we have not got the answer to the problem of what to do with those who have now become accustomed to alcohol and how they are to satisfy their craving. Where are they going to get their alcohol from?
Order! The hon. member must return to the clause. The clause makes no reference to experiments.
Are you going to permit us to vote against this clause? If that is the case, with respect, Sir, I feel I am entitled to say why I am going to vote against this clause. This clause deals with the sale of liquor to Natives. The point I want to make is that the Minister and those who are supporting this clause, are attempting to salve their consciences by saying that they are supporting it because it is an experiment. I am attacking that argument, Sir, that argument that this is an experiment, because an experiment is quite all right provided you can get back to the stage where you were before you embarked upon it, should your experiment fail. An experiment of that sort is in order.
The principle that it is an experiment was accepted in the second reading. The hon. member must return to the clause.
I asked you whether you would allow us to vote against this clause. If this Committee succeeds in voting this clause down, what happens to the Bill then? That is the point I am making. It is my duty as a Member of Parliament to try to persuade this Committee to vote against this clause and if I succeed in doing that, the fact that we accepted that principle at the second reading, will be valueless—that principle will be null and void.
Order! The hon. member must please observe my ruling. There is no reference to experiments in this particular clause and the principle of the experiment was adopted in the second reading. The hon. member must confine himself to the details of the clause.
I shall endeavour to do so, Sir, but I find myself in the same predicament that the hon. member for East London (City) (Dr. D. L. Smit) found himself in. We are opposed to this clause and we intend to vote against it. If we succeed in persuading the majority of the members of this Committee to vote against this clause, then the principles disappear as well. I claim that I have the right to oppose this clause as much as I possibly can because the defeat of this clause will mean the defeat of the Bill.
The hon. member must please observe my ruling. He is at perfect liberty to vote against this clause but he cannot discuss the principle. He must confine himself to details.
Am I not entitled to speak against the clause?
The hon. member is entitled to confine himself to the details, but he cannot discuss the principle.
I accept that ruling, Mr. Chairman. I now want to ask the hon. the Minister whether in discussing and preparing this Bill he received any sort of report from the Department of Social Welfare in connection with the provisions of this clause? I notice that Clause 9 (11) reads—
I should like at this stage to deal with a few points that have been raised. I want to deal with the amendment moved by the hon. member for Turffontein (Mr. Durrant). In the first instance, his amendment if accepted will require the Minister before granting a renewal authority under Section 100bis to have regard to Sections 65 and 136 of the Act. Section 65 deals with the types of persons who are disqualified from holding any liquor licences and he has read out those qualifications himself, so I will not read them again. Section 136 requires the police to report on each and every application for a licence. The amendment apparently seeks to ensure that the person to whom an authority is granted is of good character and that the premises concerned are suitable. Under the Act Ministerial authority is already required in certain cases, because it says that the procedure followed in an application of this nature is to consult the Commissioner of Police, where applicable the Secretary for Native Affairs and the Secretary for Coloured Affairs; thereafter the Department of Justice places a report before the Minister. In the case of an application for an authority under the new Section 100bis the magistrate, the Bantu Affairs Commissioner, the Secretary for Native Affairs and the Commissioner of Police will be consulted before any application is considered by the Minister.
The Bill does not say that.
I will outline the policy and then I will state what I am prepared to do in this connection. I want to give the assurance to the House that no authority will be granted unless a very thorough investigation has been made into the character of an applicant or his nominee and into the premises proposed to be used. In view of what I have said it is considered unnecessary to require the Minister to have regard to certain provisions of the Act. The amendment relating to the new Section 100ter cannot be accepted either because it would merely result in further illicit liquor dealings which these provisions aim to put to an end.
As far as the amendment proposed by the hon. member for Salt River (Mr. Lawrence) is concerned, I will give consideration to the first part of his amendment. I indicated at an earlier stage that I was quite prepared either to say that this board would be consulted or that this board should recommend. There is not much difference between the two; they practically amount to the same thing. I am prepared to accept an amendment saying that the authority should be granted on the recommendation of the National Liquor Board. That is what the hon. member wants, and I am prepared to accept that because I indicated at an earlier stage that that was the direction in which I wanted to move. It was only that I thought at the time that consultation would be sufficient, because, after all, the Government appoints the three officials and the Government appoints the three members. In practice it would not make much difference because it would be absurd for any Minister if he has consulted this board and this board has certain opinions which differ from those of the Minister, not to follow the advice of the Board. After all, even though this board is now going to recommend I think any Minister of Justice will make quite sure that this board does consult the authorities or bodies concerned. I think that is very necessary.
The Minister is not bound to accept the recommendation. My point is that he must have a recommendation.
I said that I was prepared to accept that part of the amendment. To me personally it makes no difference. I am prepared to accept the word “recommendation”. But I cannot accept the second part of his amendment. Firstly it aims at removing to a large extent the discretion which the Minister will have under the new section. In certain respects the Minister still has discretion and the member now wants to remove that discretion. No application will be considered unless it is acompanied by a recommendation from the board.
Does the Minister expect to operate that in respect of an area or in respect of each nominee of any particular authority?
It would cover every application. I have been asked how these applicants will receive their authorities, what procedure they will have to follow. will they have to apply. My reply is yes they will have to apply. The liquor boards at present have no difficulty in regard to applicants and I am sure this National Board will have no difficulty because of lack of applications. The difficulty will be that there will be so many applications that it will be difficult to sort them out.
This is rather important. Take for example the urban authority of the Witwatersrand which controls some 600,000 Natives. They can put up more than one nominee, Will the Minister accept a recommendation from the board that an authority be granted to the urban authority of Johannesburg? There may be 30 nominees to cover all the distribution points in the Johannesburg area; will the Minister accept all those nominees without some prior investigation?
I think every possible investigation will be made. I am advised by my legal advisers that as far as any recommendation is concerned, we will have to make regulations as to how this board should act, how to set about it in coming to a conclusion. That will need special attention. There will have to be rules and regulations to guide this board. These regulations will be similar to the regulations which operate in the case of the existing liquor licensing boards.
Will those be advertised?
The regulations and/or rules will be made known. But we will not advertise for applicants.
Will they know when applications have to be submitted?
Yes. I will have to consult my Department but I think it will be done through the Government Gazette.
I want to deal with the last point referred to by the Minister. The machinery or method by which applications are made already exists. This method has been in operation for a number of years and is based on experience and on recommendations of the police. In the case of the existing liquor licensing boards the procedure is that an advertisement appears in the Government Gazette to the effect that the liquor licensing board will sit at a certain place at a certain time; a list of existing licences are published and applicants are given a certain time limit within which to submit their applications on a prescribed form to the board. That system has worked very satisfactorily. There is no necessity to experiment in that regard, the method is there; there may be room for improvement, but it is not necessary for us to start de novo. In various sub-sections of this Bill we are setting up in effect a duplicate organization throughout South Africa to control liquor licences. For the life of me I cannot see why the existing structure should not be used.
Order! That argument has been used over and over again.
If you will excuse me. Sir, when the hon. the Minister was speaking he dealt at some length with the method he intended to adopt. I want to appeal to the Minister once again to consider “marrying” the two systems. In terms of the various clauses of this Bill there are many other conditions to be observed. One of the most important aspects to be considered in granting a liquor licence is whether there is a reasonable demand for such a facility in any particular area. For the life of me I cannot see how two separate bodies can decide on that point, the one may come into conflict with the other. True enough under the Minister’s “authority scheme” he deals mainly with the non-White population but they are already to-day being dealt with under the existing liquor licensing system. I would ask the Minister in this “experiment” of his to consider, and to see whether it is not possible to combine these two methods of control. By doing that he will not only simplify the system and economize but he will actually produce a better basic system in the long run. I also want to ask the Minister a question in regard to Section 100quin, which says—
Now I want to ask the hon. the Minister whether that is intended to apply only to the non-White section of the community, or will it be of general application to anyone who desires to consume liquor. Because it says here “the State President may declare that within any area defined ‘no liquor’ shall be sold or supplied to any particular class of persons” I should like to know whether that is intended to be of general application, because if it is of general effect it would give the hon. the Minister the power in fact to direct the liquor trade to certain particular areas in an urban area.
This is merely a safety valve in case things should get out of hand. Then the Minister must have these powers.
In that case it would apply to Whites as well as non-Whites?
Yes, to Whites or non-Whites, or to both.
I am glad the hon. the Minister has answered that question. There again it emerges from 100quin that it will be possible under the provision of this Bill to control, or to close down licences, to restrict licences which have been granted by the Liquor Licensing Board. You see, there is another section in the Bill which gives authority to restrict or to control the supply of liquor under certain emergency conditions. That is a state of affairs which might arise. This section has a much wider definition, and it is in fact imposing a super control over the liquor licensing authority. I would like the hon. the Minister to explain it a little further.
The other question I want to ask the Minister is in regard to 100quat. This imposes conditions in regard to any of a particular class of persons who consumes liquor on private premises, or is in possession of liquor on any private premises, without the consent of the owner or lawful occupier. He will be committing an offence. If accepted, this Bill provides the machinery to enable the Asiatic, the Coloured person and the Bantu to be in possession of liquor, and then in this clause we produce these offences. But again from experience I want to make certain that we are not going to produce another set of liquor criminals, inadvertent liquor criminals, which the Bill to a very large extent intends to try and do away with. Take the case of a man who is employed in a store, on a delivery van for instance, not necessarily a liquor van, but who legally and lawfully purchases for himself a bottle of liquor to take home. On his way home he has to carry out certain deliveries, or certain duties which take him on to private land and on to private premises. He is in possession of his own intoxicating liquor but he has not had the permission of the owner of those premises as necessary by this clause. Then technically or otherwise, he is committing an offence. It is technical offences of that nature which has caused so much difficulty and so much trouble with the Bantu to date. I am a little dubious of now putting on the Statute Book another provision which creates new technical offences, for which the man can go to gaol, and when he goes to gaol under other regulations he can be deported from the area. You see, Mr. Chairman, there are very wide implications, and I want to ask the hon. the Minister in his reply to deal with them. A man going home by train, a man going home by bus, may be placed in that position. It may sound far-fetched, but it is not so far-fetched that the hon. Minister need not worry about it. Again we run the risk of creating technical criminals and this may undo very largely some of the advantages we expect from this legislation.
As I say, as far as I am concerned, I support the views of those who have already said they cannot support this measure. I shall vote against the clause, because I believe it cannot be implemented without a very big upheaval within the country. The women and children who have to live on the already meagre money that these people earn, will find themselves hard put when a portion of that money is devoted to hard liquor. Under those conditions I have made my standpoint perfectly clear from the word go. I am against any experimenting with human beings, human families and human lives.
I want to say that I appreciate very much the reaction of the hon. the Minister to the suggestion I made in regard to my amendment. The fact that he has been prepared to meet me in this reasonable way, removes my difficulty. I would have been sorry to have to vote against this clause because I have accepted the principle of the Bill. I believe that in spite of the potential dangers, this experiment is well worth making, and I would have felt sorry to have to go back on my vote at the second reading. But the Minister, by agreeing to make his discretion subject to a recommendation of the National Board, has removed a fundamental difficulty of mine. In those circumstances if the Minister is prepared to accept the first part of my amendment, which reads—
then I would like to withdraw the further proviso. In other words, I want to withdraw all the words after “Section 118bis”. It means then that the Minister will act on the recommendation of the National Liquor Board.
May I add, before I sit down, that I would still be glad if the hon. the Minister could give us some further information as to the procedure he proposes to adopt. He has not yet given a clear answer to my question as to who will take the initiative in these matters.
Applications will be awaited.
Yes, but in terms of the normal provisions of the Liquor Act we know that a Licensing Board has an annual meeting, and applicants for licences have to conform to a certain procedure. Now the Minister may be able to grant authority at any time of the year solely on the recommendation of the National Liquor Board. But it seems to me that it will be necessary to lay down some form of regulations to lay down that persons who have an interest, or associations who may wish to put up a nominee, may be entitled to make application to the Minister or to the National Liquor Board in a certain form.
The regulations will be framed to guide them.
With leave of the Committee, Mr. Lawrence withdrew the second proviso proposed by him to be added at the end of sub-section (11) of the proposed new Section 100bis.
I should like to say a few words about the powers being vested in the Minister by this clause, and I want to do so more specifically with reference to the amendment moved by the hon. member for Salt River (Mr. Lawrence) as well as the various speeches in which it has been said that this clause gives the Minister very wide powers. I should like us to analyse this legislation objectively and also to do so from a practical point of view. At the very outset I want to admit that this clause embodies far-reaching implications. The whole substance of this Bill is contained in this clause, and when one makes changes in the Liquor Act which are as drastic as these, it is very desirable to provide for the practical implications which may arise in future. We now find here that in various respects very great powers are being entrusted to the Minister by this clause, as for example in Section 100bis (1) and (3) which gives the Minister the power to revoke any authority which he may have granted under sub-section (1) and in terms of sub-section (5) he can impose restrictions and conditions and so on. But I want to submit that it is most essential that these powers should be placed in the hands of someone, and preferably in the hands of the Minister. I shall tell the House why I believe that.
Mr. Chairman, the most important point in this legislation is really contained in the new Section 100ter, namely that “the holder of an off-consumption licence and a licensee who has been granted a special right of off-sale in terms of Section 64 may sell liquor to any Native of the age of 18 years or more for consumption off the licensed premises and any such Native may purchase and be in possession of liquor”. That is the important principle of this legislation.
Why do you say that?
This is the clause in this legislation which as far as existing licensees are concerned allows Natives to consume liquor. Flowing from this, we must bear in mind the fact that there are now millions of people in South Africa who will be able to consume liquor to whom liquor was not available previously through legal channels. We must bear in mind that provision has never been made in the past for the distribution of liquor amongst two-thirds of the population of South Africa, and now we are introducing this important provision that this two-thirds of our population who previously could not obtain liquor, can now obtain liquor. We must bear in mind that the necessary facilities must be created for these people to obtain liquor, and that is why the new Section 100bis is being introduced. It is really intended to provide liquor to these people in so far as the present licensees cannot meet the needs and requests of these people. But we are introducing Section 100bis and we are entering a completely new field which we have never traversed before as regards the distribution of liquor, and this is essential because we should like to make liquor available to these people in a reasonable, fair and convenient way. But hon. members must remember that in entering this field of liquor consumption, we may be faced with very dangerous implications if we are not cautious. I therefore say that we must be very cautious in entering this new field of liquor distribution. Hon members opposite have now asked why the Minister must be given all these powers. They have asked why the Liquor Licensing Board cannot be given these powers. The hon. member for Salt River has suggested that this National Liquor Board should give advice and that the Minister should only be able to act on the advice of the Liquor Board. I am very glad that he has now agreed that the Minister should not be obliged to act on their advice.
He can only act on their advice.
I personally am not in favour of that. When the hon. member for Salt River was speaking a moment ago he said that the Minister was now prepared to agree that he would consult the National Liquor Board.
And he can only act on a recommendation from the National Liquor Board.
Consultation does not necessarily mean that he is obliged to act on that advice.
Read the amendment.
The hon. member’s amendment makes the following provision “provided that not authority shall be granted under subsection (1) except upon the recommendation of the National Liquor Board”. Under this amendment the Minister is obliged to act on their advice.
He can refuse to do so.
If that is so, then there is common cause between us, namely that the Minister must consult them; they will advise the Minister but he is not obliged to act on their advice.
But he may not grant an authority without their advice.
If the hon. the Minister wishes to accept that, who am I to object? But what I do want to say is that the objections which have been raised are to the effect that the Minister has undue powers. I now want to put it to hon. members in this way. Let us assume that the hon. the Minister grants a licence, and the hon. member for Salt River is not satisfied with the licence which has been granted. He then criticizes the hon. the Minister here in Parliament for granting a licence to such a person. The hon. the Minister will then simply say that that was the advice he had been given by the National Liquor Board and then the hon. member for Salt River is defeated. There is no longer anyone he can criticize. If this power is given to the Liquor Licensing Board and they grant a licence to people of whom the hon. member for Salt River does not approve, then the matter can only be taken to court. But if they act within the limits of their powers, no one in this House can do anything about it. If the Minister makes the mistake the hon. member can come the following year and say that he has made a mistake. It is for that reason that I say it is a good thing that the Government through its Minister responsible for what will be done in this new and dangerous field which we are going to enter as regards the distribution of liquor amongst the Natives.
With leave of the Committee Mr. Durrant withdrew the amendment proposed by him in line 23, page 8.
I would like to move another amendment as follows—
The explanation the hon. the Minister gave as to why he could not accept my previous amendment was that he argued that if this power rested in his hands, the power of determining what class of liquor may be sold in terms of the new Section 100quin, that would again lead to illegal trade in liquor. Why did the hon. the Minister argue that way? He says: “If I am selling all kinds of liquor in the Bantu area where I have granted such authority for the sale of liquor, and I specify that the bottle stores may sell only certain kinds of liquor, an illicit liquor trade will take place.” I am prepared to concede that the hon. the Minister is right and that that could possibly occur. There may well be illicit liquor trading between the bottle stores and the authorities established in the Bantu urban areas. If that is so, and if the hon. the Minister still retains the power to determine what kind of liquor can be sold in a Bantu area, and there is no restriction on the sale of liquor through normal bottle store channels, you are going to have the same kind of traffic flowing in the other direction. For example, if the Minister declares that only light wines and beer shall be sold in the township of Langa, but any Bantu can purchase any kind of liquor at any of the bottle stores, then obviously you are going to have smuggling by Natives who purchase brandy at a bottle store and smuggle it through to the Langa township from Cape Town. The hon. the Minister has refused the first amendment which I put forward on the grounds that this illegal trade would again develop. I therefore put it to him that based on his argument the same kind of trade could develop if he exercised the powers he wants to take in terms of the new Section 100bis. I therefore move the deletion of the words I have mentioned and I hope the Minister will accept this amendment.
I should like to meet the hon. member, but I am very sorry that I cannot accept his amendment because it throws open the door and we shall never see the end. It will be an unending task to lay down the kinds of liquor in these cases as well. I think the reasons I have already given are really conclusive and I hope the hon. member will accept the position. It will only throw the door wide open to the illicit liquor trade once again.
With respect to the hon. the Minister’s argument, this clause says that the Minister can grant an authority to sell liquor or such kind of liquor as he may determine. If words have any meaning at all that means that the Minister can decide upon what kind of liquor is to be sold, whether it be beer, wine or spirits. The hon. the Minister wants to take the powers set out in the new Section 100quin to ban any areas from selling any kind of liquor at all. In that event you will have illicit liquor trade between the banned area and the area where the liquor is obtainable. I do not think the hon. the Minister appreciates my point. The Minister says that by moving this amendment I am assisting the illicit liquor trade, but I am not doing that, I am trying to prevent it.
I regret that I am unable to accept the amendment as it is incomplete in form.
The hon. the Minister has gone a long way towards meeting the difficulties of many of us in accepting the amendment moved by the hon. member for Salt River (Mr. Lawrence). I ask him whether he would consider perhaps going a little further and in fact simplifying the position as far as he is concerned; whether he would broaden the amendment to include local licensing boards as well as the National Liquor Board?
The reason I suggest that is that when an application is to be granted, perhaps outside a non-White area, it becomes a question of direct competition with private enterprise in that area. If the Minister had the option of referring the matter to the local licensing board or to the National Liquor Board, in a case where he feels it is a matter of particular local interest, he would then have the option of using the local liquor licensing board.
Let us not carry it any further now. Let us test it out for a few months. It is only about eight months.
I was trying to bring into the picture the local knowledge of a local licensing board and to leave it to the option of the Minister as to whether he would call for their advice or the advice of the National Board.
I would rather rely on the National Board.
I accept that the hon. the Minister has gone quite a long way, but in his reply to the second reading debate he objected to the use of the National Board because he said that there would be so many applications it would have to sit full time. I am now suggesting that he should decentralize some of those applications, in line with the Minister’s own argument, and that he should merely have available the local licensing board with its knowledge at his disposal.
However, I will leave that matter and pass on to sub-section (4) to which I referred earlier.
I should like to move the following amendment in regard to this sub-section, which is a subsection which empowers the Minister to impose the conditions of the Liquor Act on persons granted an authority. I move—
The effect of this would be that the hon. the Minister would be empowered to apply or not to apply the provision of the original Act in regard to any authority granted to a public body, municipality, or any of the other public bodies which may get authority, but in the case of a private person operating in his own interests, or an association of persons operating in their own interests, he would be obliged to impose upon them the conditions of the original Act. So that a person operating for profit in his own interest would then operate under the same terms and conditions as any other licensee. This amendment does not restrict local authorities or councils or, in terms of the Minister’s latest amendment, employers, to all the conditions of the Act, but it would restrict any person operating in his own interests. I therefore move that amendment and hope that the hon. the Minister will be able to accept it since it does not interfere with his powers and it protects the interests of those who are concerned in the distributive trade. May I just raise one other point, and that is the question which was raised in passing of Natives who are able to buy liquor but in terms of 100quat may be unable to consume it. I say we are creating a class of criminal whom by law we are allowing to buy liquor, but by the same law we are making it impossible for them to drink what they have legally purchased, because if their landlord refuses them permission to drink it, and they may not drink it in the streets, they are prohibited from consuming it although they are allowed to buy it. I do not think they will buy it with the object of putting it up on the sideboard as an ornament. Therefore such a Native who buys liquor will automatically become a criminal, and I ask the Minister to make a statement about the possibility of on-consumption facilities for those Natives who have been refused permission by their landlords to drink on his premises. I ask the Minister whether he will consider that.
I just want to tell the hon. member that we have already dealt with his last argument and I do not think I can take the matter any further. As regards his amendment in connection with (b), namely that he wants to make it obligatory, I also want to say that there are certain provisions which will be made applicable to all the parties and I cannot accept it. I cannot see any substance in the argument of the hon. member as to why the nominee of a local authority should be omitted. I regret that I cannot accept his proposal.
I now would like to move—
The Minister has gone a long way to meet some objections. I would ask him whether he would be prepared, without pressing the matter, to say something more to us about the method of distribution under Clause 7, particularly where the authority granted is granted to a person or to the nominee of an association of persons. I believe I am not the only member who is still concerned about this. I understand the purpose of the amendment the hon. member for Durban (Point) has moved will go some way towards covering the anxiety we have on the point. We do not wish to be obstructive and we realize that the hon. the Minister has gone a good way towards meeting us, but the possibility does arise that these special arrangements, differing as they do from ordinary licensing provisions, may place individuals in unduly advantageous circumstances, or in more advantageous circumstances than they might be under the ordinary liquor law. Some of us have been disturbed about it although we have supported the principle, by the possibility of abuses arising under this section. The Minister in the second reading indicated that in the case of individuals his decision might enable them to hold the licences for their own purposes, which gives some of us cause for anxiety. If the Minister could reassure us on this, it might make it easier for us to support this clause.
I can hardly go any further than I did in the carefully chosen words I used at the second reading. The hon. member himself can understand that this is a very difficult matter. We shall have to feel our way forward. I can only repeat the policy will be as far as the individuals are concerned, if the National Board makes recommendations in respect of Native areas, that it will be wrong to break the rule and not to leave the profits to them. [Interjections.] If we limit their profits we shall be criticized for discriminating because in the White areas people are entitled to the profits they make in private business, and we would be prohibiting it in the Native areas. But I have also said I think it is right when local bodies are given this authority, that the Minister should consult the Minister of Bantu Administration as to what should be done with the profits made by bodies such as municipalities. I see that there are complaints to the effect that the local bodies also need the profits. But I do not follow this. After their expenses have been deducted, the Minister of Bantu Administration in the case of a Native area and the Minister of Coloured Affairs in the case of a Coloured area will recommend how the profits can be ploughed back into that same area to the benefit of the community concerned.
That meets my objection.
I would like to ask the Minister whether he could not under sub-section (9) of 100bis exempt local authorities from that provision—in other words, exempt local authorities from having to pay this licence. There is a feeling amongst those local authorities who have had a chance to study the Bill that they should not be called upon to pay this contribution to the revenue fund, for reasons which must be obvious to the Minister himself.
I am sorry that I cannot accept such an amendment, for the simple reason that if one lays down the rule that individuals and private bodies must pay the fee, then the local bodies must do so as well. But the policy will be that such bodies, municipalities and others will be entitled to add the amount which they paid for the authority to the gross expenditure before the profits are calculated.
Where the profit comes to a private individual, I appreciate that you cannot make one law for one group and another law for another, but now the indirect taxation which the African did not pay before will be paid into the general Revenue Account of the country. Now I am not a supporter of the financial segregation principle, but the Government is. Would it not be possible to keep a record of the total amount that is paid in respect of liquor sold not to Whites, and that the amount of the indirect taxation could then be credited to ploughing in…
I will consult with the Minister of Finance and see whether that is possible.
I hope so, because I think a new group of taxpayers should not contribute to the general Revenue Account without any corresponding benefit, whilst we have this system of separate taxation for different racial groups.
When I was speaking last time I was dealing with the provisions of 100bis, sub-section (11), which reads that the powers conferred on the Minister by this section shall be exercised by him or a person acting under his direction after consultation with the Minister of Bantu Administration and Development or any person acting under his direction. I want to move an amendment to this clause—
The reason for this amendment is this. I am glad that the ex-Minister of Labour is here. I am endeavouring to ease the burden as far as the urban areas are concerned and the tremendous labour force we have which is drawn from the Bantu people. As the Minister will know, the whole of the machinery controlling the working conditions of the Bantu labour in the urban areas falls under the Department of Labour and not under the Department of Bantu Administration. What happens when the Bantu workers come into the factories? All that falls under the Department of Labour and it should be obvious to us all that if hard liquor is going to be placed in the hands of the Bantu, the Department of Labour should take early action to issue in every factory in the country a warning to Bantu workers as to what will happen to them if they are found on duty in possession of liquor or if they are found on duty in an intoxicated condition. It is no use waiting for this sort of thing to happen and then for action to be taken by the police. Under these conditions prevention will be far better than cure. I am suggesting to the hon. the Minister that it is important that he should not only consult with the Minister of Bantu Administration and Development but that he should also consult the Minister of Labour if he wishes to avoid a lot of unnecessary police activity in the industrial set-up in our country. I move this amendment because I think it is important. Although I am against the clause, I see no reason why I should not assist the Minister in improving this clause as much as possible.
The hon. member is now asking for a little too much. I should like to meet him but he is asking too much. I do not doubt for one moment that the Department of Justice and the Police which will be concerned in this matter and the National Board will consult all the bodies, organizations and Departments which have any interest in the matter whatsoever. I shall ask them to do so. The hon. member now proposes in his amendment that it should be written into the law, but he must not ask for that, Give us a chance to consult all the interested parties. When we introduce the later legislation the hon. member can tell us we are not doing things in the right way and we can then act in accordance with the experience we have acquired. I hope he will not insist on his amendment.
Remaining amendments proposed by Mr. Durrant, amendment proposed by Mr. Oldfield, the first amendment proposed by Mr. Tucker and the amendments proposed by Mr. Raw put and negatived and the amendments proposed by the Minister of Justice in lines 49, 50 and 68, page 6, put and agreed to.
Amendment proposed by Mr. Eaton put and negatived and the amendment proposed by Mr. Lawrence and the new sub-sections proposed by the Minister of Justice and by Mr. Higgerty to be added at the end of the proposed new Section 100bis put and agreed to.
Remaining amendment proposed by Mr. Tucker put and negatived. Clause 9, as amended, put and a division was called.
As fewer than 15 members (viz. Brig. Bronkhorst, Messrs. Connan, de Kock, Eaton, Gay, Sir de Villiers Graaff, Messrs. Hopewell, Hughes, Mitchell, Oldfield, Dr. Radford, Dr. D. L. Smit, Mrs. S. M. van Niekerk and Mr. Williams) voted against the clause, as amended, the Acting Deputy Chairman declared it agreed to.
On Clause 10,
Under Clause 10 the letters of exemption which have hitherto applied to the supply of liquor to certain non-White communities naturally disappear, but the amendment contained in Clause 10, if I read it correctly still provides restrictions and letters of exemption will still be necessary for the supply of methylated spirits to non-Europeans or for their employment on licensed premises. Methylated spirits is to-day fairly largely used in a number of household appliances, particularly with people not in contact with electricity. I wonder whether under the new set-up which, as we have been told, is calculated largely to ban shebeening, the necessity for the banning of methylated spirits now is essential, or whether the hon. Minister is prepared to go as far as to say that as far as the legitimate use of methylated spirits is concerned, these provisions can be withdrawn.
This clause is a consequential one, but I will go into the question of the banning of methylated spirits in the recess.
Clause put and agreed to.
On Clause 13,
The hon. Minister has already indicated that he is prepared to accept this amendment.
Yes, I am prepared to accept it.
In the circumstances I will not discuss it any further. I now want to move the second and third parts of the amendment appearing on the Order Paper in the following form, namely—
I do not intend to repeat all the arguments I have used in favour of this amendment in my second reading speech, but it is quite clear from the discussions on the various clauses which have ensued, that the hon. Minister lays continued emphasis on the importance which he attaches to the advice which he will obtain from the National Liquor Board. If that is so, Sir, I want to point out that there are more than just liquor interests concerned in the very wide application of this measure. There are also the moral aspects of our national life which must also be considered, and I think it is quite wrong for the Minister to adopt the point of view he adumbrated in his second reading speech when he said that the three other members which he wished to appoint on the Board, would be people representing the liquor interests. He said, namely, that one of those three representatives would be representing the consumer interests; one would represent the liquor trade.
I said the trade generally and preferably an economist who had some knowledge of the liquor trade.
But the fact remains that—and here I think the hon. Minister will agree with me—there are thousands upon thousands of people who do not consume liquor in our country and that there are thousands upon thousands of people who are concerned about the moral aspects of excess drinking. Under the system under which our licensing boards operate, the normal citizen can come before such board to express his objections and his views to the extension of any licence, or to the granting of a new licence. But, surely, it is necessary that on a board of this nature, with its wide powers in regard to matters upon which it can advise the Minister in regard to the granting of liquor licences, at least one of its members should represent the general interest in a broad sense, a person who does not have any direct connection with liquor interests in any way, but one who is more concerned with the moral aspects of our conduct as a nation especially in so far as the excess consumption of liquor affects it. The hon. Minister I think will agree with me that we cannot, when taking this revolutionary step of making liquor available to the Bantu on such a large scale, afford to ignore the wishes of the churches and of various associations by putting those wishes aside. They are, in my opinion, from the point of view of our national life, entitled to have their viewpoints heard where we are going to establish this board whose function is to give advice to the hon. Minister on the application of this Bill. That is the object of this board, namely to advise the hon. Minister on the application of the Bill when it has become an Act of Parliament. Now, I do not want the hon. Minister to come back at me by asking whom shall he appoint to represent those interests in view of the fact that these interests are so varied. That I concede and I am prepared, therefore, to leave it to the discretion of the Minister. He might appoint a reputable citizen who, once appointed to the Board, will be regarded as representing the interests of the general public and the views of those who hold very strong views in regard to the excess drinking of liquor. For the good of our national morals, I plead with the hon. Minister to make such an appointment as I have suggested, because that will contribute to a better operation of the Act and to the establishment of higher morals in our national life in so far as they are affected by excess consumption of liquor.
I was disturbed to find that the hon. Minister had slightly changed his attitude when he replied to the hon. member for Turffontein (Mr. Durrant). I want to support the request of this hon. member where he asks for a member representative of the general public to be appointed to the Board. I was going to ask the hon. Minister to incorporate in the Bill what he said at the second reading, namely, that the three members he would appoint to the Board would represent the producer, the liquor trade and the consumer. I was going to ask the hon. Minister whether, if that was to be his policy, he would incorporate it in the Bill, but from an interjection he made while the hon. member for Turffontein was addressing the House, I gathered that he would appoint a person to represent the trade if he could find an economist also connected with the trade.
I said an economist who had some knowledge of the trade.
I would, however, like to ask the hon. Minister to stick to his original view since this Bill will inevitably affect the existing liquor trade, in other words, those whose livelihood is dependent upon licences granted to them. I feel that the liquor trade, which has a great deal at stake, should at least have onemember to represent it on the Board, and I hope the hon. Minister will give the assurance that there will be someone on the Board to watch their interests. May I also ask the hon. Minister a question in regard to producers. Does he regard them as being only the wine producers or are the breweries included?
They are included.
So that the representative will be representative of all types of producers. I hope the Minister will also give the trade and the general public, as such, representation.
I want to move an amendment to this clause, which I hope the hon. Minister will see his way clear to accept. My amendment is—
The proposed new section itself makes provision for the establishment of a National Board consisting of six members, whom the State President may appoint. One of these members shall be an officer in the Department of Justice who has attained the rank of magistrate and he shall be the Chairman of the Board. With this no one can quibble. Then there will be the Secretary for Justice or a person nominated by him; the Commissioner of Police or a person nominated by him; and three other members to be appointed by the State President for a period of two years. In the entire existing structure of liquor control, that is, in the control and issue of licences, the control of licensed premises and of licensees, there is representation of local authorities in some form or other. The United Municipal Executive is an association elected by the four provincial executives of local government. Each province has its own provincial executive. These provincial executives appoint a person or persons on the United Municipal Executive with headquarters in Pretoria. This body acts more or less as the connecting Jink between local authorities and the Government. Now, local government must be affected by the measure we are now dealing with. Local authorities are concerned with the problems arising out of the consumption of liquor, with the provision of the necessary facilities and the financial structure of a local authority is often, to a very large extent, damaged or improved by the existence of liquor supply facilities and its control. I think that in order to have the local authorities represented in this new scheme, they should be given the chance to elect a person to the Board and this could be done through the United Municipal Executive, a body which is already in existence. This seems to me to be a fair and reasonable suggestion and I hope the hon. Minister will agree with me that these local interests should also be represented on the Board. They are concerned with health services, with the provision of facilities for the education of these people, and with many other necessary local government facilities which a community requires all of which will most likely be affected by the increased supply of liquor which is envisaged under this Bill. It concerns a local authority as to whether a liquor licence is granted for an area. Under the present system the co-operation between these bodies and the police is smooth and satisfactory. It is, in my opinion, therefore, fair to ask that in the proposed set-up, which is going to run parallel with the existing structure, local authorities should also be adequately represented.
I am sorry that I cannot accept the suggestion of the hon. member for Turffontein (Mr. Durrant) and the amendment of the hon. member for Simons-town (Mr. Gay). These hon. members really want to help me jump from the frying pan into the fire. Provision is made at the moment for the appointment of three officials on the Board and three persons who will represent certain interests. As far as the trade is concerned, I should like to have an economist who has a knowledge of the liquor trade as a representative. Such a person would be very useful and there are such people available. I want to keep this provision. One will be appointed to represent the consumers and one to represent the trade. He will rather be a person with a general knowledge of the trade and if we can find such a person who is an economist and who is acquainted with the liquor trade, he will be of great value. In the third place there is the producer who must be represented. I want to ask hon. members not to urge that we should depart from this principle. If the door is opened any further, hon. members can rest assured that applications asking for the further expansion of the Board will pour in. After full consideration of the matter the Government has introduced this proposal and I think that it is quite a good one. The hon. member for Simonstown goes further and wants us to introduce a new principle. The principle now is that the Government will appoint the members of the Board, and this hon. member wants the United Municipal Council to be able to draw up a panel from which the Minister can select one member. This is a new principle and I do not think we should introduce it because if this right is given to the local authorities, the consumer will ask for the same right and then the producers will also make a similar request I am therefore sorry that I cannot accept his amendment.
With all due respect, I think the hon. Minister is, wrong in his attitude. To call on bodies to submit a panel of names, is a principle which the Government has accepted as a general practice. The proposal I have made gives the hon. Minister, in addition, access to a wide cross-section of the people of the country and to what they think. It will give him access to local government areas and to all the people living in those local government areas. The relevant local authority is the body responsible for the control of Bantu in its area. They are moreover the people who have to supply, very largely, the housing for Cape Coloureds. The Minister will, therefore, have at direct call the views of probably the widest cross-section of people in the country.
What about the producers?
I do not see the producers coming into it at all, but if the hon. Minister wants to apply the same principle to them, I would not have the slightest objection thereto. They are selling the commodity and provision has been made for them to be looked after in other spheres, but if the hon. Minister wants to apply the same principle to them in this respect, I would not object. This is not a new principle but one which is accepted as a general practice. To apply this to local authorities would, as I indicated, give the hon. Minister one of the best contact points with public opinion in those areas where he is going to establish distribution points for the supply of liquor to the Bantu.
The hon. Minister, did not reply to me.
I said you wanted to open the door and that I could not accept that.
But I do not want the hon. Minister to open the door and I think I made that clear when I moved my amendment. The hon. Minister emphasized the fact that he is going to confine representation on this board entirely to the liquor business, viz. firstly, representation of the man who drinks; secondly, of the man who sells to the man who drinks; and thirdly, the man who makes it available to the man who sells.
There are very few left after that!
That, Sir, may be a clever joke but when you deal with the morals of a nation, it is not so clever. For every one man who drinks, there are, taking women and children and everybody else into consideration, five who do not drink. Yet we are going to establish a board to control the supply of liquor in this vast new experiment, on which the nation’s interests in the morality of its conduct, will not be represented at all. That is what it amounts to. The hon. Minister has recognized only the interests of the liquor trade and of the police, but what about other interests—of the churches for example? What about the interests of the thousands of people who are concerned with the moral aspects of drink? Are they to be ignored? The advice the hon. Minister is going to have is how liquor is going to be sold to the Natives and the liquor trade will not be concerned with the restriction of consumption, because the more they can sell the better it will be for them. I do not understand the attitude of the hon. Minister. Surely it is a simple thing to ask that in the interests of the morals of the nation, just one person should be appointed to the board to represent the interests of the general public, a person who would not have any interest in the liquor business itself. I voted for this Bill at its second reading, Mr. Chairman, because I believed that it was a good thing for the various reasons which were advanced during the second reading debate, but I want to tell the hon. Minister this that I will vote against it when it is read a third time, if he continues to adopt the attitude he has been adopting on this matter. The advice the hon. Minister will get from the board will not be advice which will be in the interest of the nation, but which will be in the interest of the liquor business. That is what the hon. Minister has said when he said that he was going to accept advice only from the liquor interests and not from anybody else in the country.
That is not correct.
That is so according to the hon. Minister’s own admission, because he said a moment ago that he was going to have represented on the board those who drink, those who sell to those who drink, and those who produce for those who sell.
Does a consumer not include the general public?
I assume that when the Minister is talking about a consumer, he is either having in mind a Bantu or Coloured man who consumes liquor. The liquor licensing boards are not solely concerned, when granting licences, with the amount of liquor that can be consumed or of the benefits to the retail trade. They grant licences on the basis of certain fixed limitations and restrictions laid down in the Act itself. But in the case of the board the hon. Minister is establishing under this Bill, what advice is the hon. Minister going to receive? Not advice from the general public interested in the maintenance of high moral standards especially when it comes to a matter which we know can debase man, but only advice from the liquor interests. I say that if that is going to be the case, it is fundamentally wrong. We should place that board on a wide enough basis so as to include also representation from the general public and not only representation in one direction—the liquor trade.
There are the moral standards of our nation to be considered as well. Who in the National Liquor Board will listen to a memorandum from the Dutch Reformed Church, or represent its interests there if the hon. Minister is not going to appoint someone to the board to represent interests of that nature? Who will otherwise represent the Methodist Church or those people in our country who are opposed to the evils of drink? No, Sir, I am shocked by the hon. Minister’s attitude. I was prepared even to accept only an assurance from the hon. Minister to the effect that he will see to it that at least one member on that board will represent interests other than liquor interests. But the hon. Minister is not prepared to give me even that assurance, but merely rejects my amendment by stating that the only people he is prepared to accept advice from in relation to the wide implications of this Bill, are the liquor interests. That is a shocking admission.
Amendment proposed by Mr. Durrant in line 45, put and agreed to.
Remaining amendment proposed by Mr. Durrant put and a division was called.
As fewer than 15 members (viz Messrs. Connan, de Kock, Durrant, Eglin, Gay, Raw, Dr. D. L. Smit and Mr. Williams) voted in favour of the amendment, the Acting Deputy Chairman declared it negatived.
Amendment proposed by Mr. Gay put and negatived.
Clause, as amended, put and agreed to.
Clause 16 put and negatived.
On Clause 20,
I move the amendment standing in my name—
Sir, the amendments contained in Clause 20 of the Bill are drafted in a manner, which makes it well high impossible to follow what the effect will be. May I suggest that in future in such cases the provision which it is desired to amend should be set out in full with the amendments printed in italics. It is only with the able help of the parliamentary draftsmen and the Secretary of the House that I am able to place my amendment before the House in the proper form. As the clause is, it is absolutely impossible for anyone to understand it. The general effect of Clause 20 is to increase the penalties for various offences under the liquor law very substantially. Among these offences is the crime of drunkenness. The existing penalty for this offence is £25 fine or three months’ imprisonment. The offence is now being transferred to another category. Under paragraph (b) of Clause 20, the penalty is being increased to a maximum of £200 or 12 months’ imprisonment. I submit, Sir, that this penalty is unconscionable. My amendment seeks to leave the penalty for drunkenness as it is, namely a fine of £25 with the alternative of three months. There is ample provision for dealing with an habitual offender under Section 16 of the Work Colonies Act No. 25 of 1949.
I served a copy of this amendment on the Minister’s legal adviser and he drew my attention to the fact that the fine of £200 or one year’s imprisonment was the maximum and that there was no minimum. But the fact that the Legislature has quadrupled the penalty is often an indication to a magistrate that the Legislature contemplates a much stiffer sentence: and that he will act accordingly, particularly if he is an inexperienced magistrate. I wish hon. members could visit one of our city courts for instance in Johannesburg on a Monday morning and see the drunks who are dealt with by the magistrates—what unfortunate people many of them are, many of them alcoholics who need mental treatment rather than a stiff sentence in gaol. And here I wish to refer to the remarks by our Judges in dealing with this class of case and that should serve as a guide. I take this from a report in the Cape Argus of 7 June 1961—
The Judges, he said, were of the opinion that except in cases where there were aggravating circumstances, only light sentences should be imposed so that an offender would not be obliged to go to gaol because he was not in the position to pay a fine.
Where it was possible, periodic imprisonment for one or more weekends might possibly be best.
Although the Judges were aware of the disadvantages of short-term prison sentences, this would have to be tolerated until different and better provisions could be made for combating what was more of a social evil than a crime. Even where the offence was repeatedly committed, a more severe punishment should not be imposed as a rule.
Then he went on to refer to certain correspondence which the Judges had with the Department of Justice and a circular that was issued to the magistrates and the Judges in regard to the Rawsonville Prison for Alcoholics, and he went on to say—
It is our considered opinion that no good purpose will be served by sending these drunkards to gaol for a long period. They do not get rid of their craving for alcohol and the sentences do not deter others. The only result is that the family life of the affected person is disrubed and the dependants must manage for a long time without their breadwinner. People who are enslaved by drink must be treated sympathetically and kept out of gaol as far as this is possible.
Mr. Justice van Wyk then dealt with the cases under review. Sam Matthews, a 45-year-old farm labourer, had been convicted 11 times of drunkenness since 1954. For his most recent offence he had been sentenced to six months’ imprisonment, suspended for 12 months.
“Here,” Mr. Justice van Wyk said, “is a case where repeated prison sentences have served no good purpose.” It only led to a disintegration of the family and if the accused has to go to prison again the child for whom he cares will suffer as a result. He confirmed the convictions, but set aside the sentence, substituting a fine of R2 (or seven days) suspended for 12 months on condition that Matthews is not found guilty of drunkenness in this period.
Daniel Tarrentaal who had been sentenced to six months’ imprisonment, suspended for three years, had the sentence changed to a fine of R2 (or seven days), suspended for three years.
So in several other cases the same conclusion was arrived at and the sentences were reduced to a small fine. Sir, long sentences of imprisonment on drunkards are purposeless, and I hope the Minister will accept my amendment.
In conclusion I want to make it clear that here I am not referring to drunken motor-drivers, but the ordinary drunks that appear on Monday mornings or after an old year old night’s festival before the magistrates in the ordinary routine, and it would be quite laughable to impose a fine of £200. I think some mistake was made by the law advisers in drafting this law.
I am not going to take up the time of the Committee with a long explanation of my amendment on the Order Paper. I do not know what the Minister’s views are. I expressed my attitude towards the matter at some length at the second reading, and I still hold those views. We have the evidence in respect of the provisions that the hon. the Minister has added here in regard to concoctions which are very similar, if not exactly the same, as those that apply as far as offences of dagga against the Medical, Dental and Pharmacy Act are concerned, in regard to in trafficking dagga. I hold a view, and I know others do, most strongly that perhaps the time has come that dealing with the incidence of drunkenness, irresponsible drunkenness, more stringent penalties should be applied by the law. I am not going to move the amendment that stands in my name on the Order Paper, because I had second thoughts about the matter. In fact the manner in which my amendment is worded with the application of minimum sentences, I recognize that I should support the Minister’s clause because I recognize the wide measure of discretion that is being granted to the magistrates in regard to the application of penalties, and I support the increase of the penalties as far as drunkenness is concerned. Let me say immediately that the fact that the man gets drunk in itself is not an offence. A man’s drunkenness must be accompanied with something else. He must be drunk and disorderly, and any responsible citizen knowing full well that he is in the way of getting drunk, if he act irresponsible, must be prepared to pay the cost of his irresponsibility. We hear these observations from time to time about Judges and others, but what about those who suffer as a result of the irresponsible actions of drunks, such as those who get behind the driving wheel of a motor-car while they are drunk and innocent people and families are killed because of their irresponsibility? I would ask the hon. the Minister, perhaps when the consolidating measure comes before us to consider to keep the same principle here of not laying down a minimum, but to apply penalties in respect where direct irresponsibility has been shown in cases of drunkenness where there will be no alternative of a fine but the penalty will be direct imprisonment, as we had it in the dagga provisions. I hope that in due course when the consolidating measure comes before the House that that matter can in itself receive wider and further consideration. These are my views, I hold them strongly, and there are others whom I know, hold similar views. I have put this amendment on the agenda for the purpose of expressing those views, because in my view there is no excuse for irresponsible drunkenness and the acts that flow from it.
As regards the remarks of the hon. member for Turffontein, there will of course be an opportunity when the second Bill is under discussion to reconsider the whole question of penalties, but I do just want to tell the hon. member that I am glad that he has withdrawn his amendment. Before one introduces a minimum penalty, I should say that one should rather consider aspects other than a minimum penalty. Under our criminal law in South Africa there are very few instances where a minimum penalty is imposed for the simple reason that the minimum penalty is left to the courts. South Africa confines itself to the maximum.
As far as the hon. member for East London (City) (Dr. D. L. Smit) is concerned, I can just say in a few words that it seems to me that the effect of his proposal is that the existing maximum penalty for drunkenness, inter alia, of £25 for the first offence, should be increased to £50 or three months. It seems to me that the hon. member is not opposed to the proposal that the penalty for drunkenness should be increased. The point at issue is therefore only how far we should go as regards the penalty. We consider that the proposal contained in Clause 20, namely that the penalty for drunkenness on a first offence should be £200 or 12 months, should be the maximum. The hon. member says that that is extremely high, but the matter remains in the discretion of the courts. However, I want to add that if circumstances justify it later, that is to say, if drunkenness increases in the country, steps will have to be taken to increase the maximum still further. But I just want to remark that I think that South Africa will have to keep a very close watch on the position as regards drunkenness, particularly drunkenness which is the cause of motor accidents on our roads. I want to repeat that if drunkenness increases, we shall have to consider heavier penalties. I can therefore not accept the hon. member’s amendment.
Amendments put and negatived.
Clause, as printed, put and agreed to.
On Clause 22,
I should like to move the following amendment to this clause—
Provided further that Section 13 shall come into operation on the date of promulgation of this Act.
It is essential that the National Liquor Board should be appointed as soon as possible so that it can start its work. For this reason I am moving that Clause 13 shall come into operation on the date of promulgation of the Act. As far as the other provisions are concerned, with the exception of those of Clause 3 which will be deemed to have come into operation on 10 May a date will have to be fixed. There are certain regulations which must be drawn up. Liquor dealers must also have the opportunity to arrange their businesses in accordance with the provisions of the Bill. If all goes well, these clauses will probably come into operation in August or September.
May I just ask the hon. the Minister, who has referred to certain regulations that have to be published, whether the authority for those regulations is contained in the original Act, because there is nothing in this amending Bill?
They are in the principal Act.
Is the hon. the Minister satisfied that the powers to regulate given in the original Act are sufficient to deal with all the matters contained here?
I am advised by the Department that that is so.
Amendment put and agreed to.
Clause, as amended, put and agreed to.
The Committee reverted to Clause 2 standing over.
On Clause 2,
Amendment put and agreed to.
I do not want to hold up the Committee at this stage. But I did ask that this clause should be held over, because it is the clause which says that nothing in the Act relating to the application for or holding of a licence shall apply to any person, or the nominee of any urban local authority, who may be granted an authority by the Minister under the proposed new Section 100bis. Now I asked that this clause should be held over in order that we should have an opportunity of discussing the machinery to be set up under this new Section 100bis. At that time the clause, as it stood, conferred upon the Minister an unfettered discretion to issue authority. Since then the Minister has agreed to an amendment, the effect of which will be that he may not grant an authority except upon a recommendation by the National Liquor Board. He is not obliged to accept that recommendation. He can veto it, but he may not grant an authority without a recommendation. That certainly helps to palliate one’s doubts about this particular clause which originally excluded the jurisdiction of a licensing board, and excludes those conditions applicable to an applicant who makes application before a normal licensing board. How ever, I do not think that is sufficient in itself. It seems to me that if the hon. the Minister wishes to persist in putting through the clause as it stands, he should give the Committee an assurance that, in any regulations he issues, certain of the pre-requisites for a licence on the part of a normal applicant should be made essential in the case of an applicant for a licence under the new Section 100bis.
Mr. Chairman, this goes very far indeed. If the clause is accepted as it stands, it not only means that an applicant for an authority under Section 100bis may not have, for instance, to satisfy the police as to his character. He may also not have to show that he does not hold an office of profit under the Crown. But having once been given the authority, he is not subject to the conditions which the Liquor Act lays down in regard to ordinary licence holders. For instance, there are the provisions of the amending Act of 1956 which provide that the holder of an on-consumption licence must have available a minimum number of brands of wines, or malt liquor. Similarly, the holder of an off-consumption licence is subject to these provisions. There are provisions relating to inspections by the police, and other provisions which bind the holder of a normal licence; provisions which have the effect of exercising control of the licence. If the licensee fails to observe the conditions laid down, he may be in danger or losing his licence.
The hon. the Minister, by now excluding what I should call the supervisory jurisdiction of the provisions of the Licensing Board, is potentially enabling a licensee under his special authority to act without any restrictions whatever. I should be glad if the hon. the Minister could give us some assurance. I would like to see this clause excluded; but if the Minister says that is not possible I should like an assurance from the Minister. And may I say, in parenthesis, that this is one of the difficulties of discussing this matter at this late hour, one of the reasons why I would have wished to have seen this Bill dealt with in a Select Committee where we could have pooled our resources in order to find an answer. However, I do not wish to hold up the Committee at this stage. But I do suggest to the Minister that he must seriously consider regulations in regard to this, so that the holders of an authority issued under his hand in terms of 100bis will not be in a special position, in a preferential position, as opposed to a licensee who obtains a licence under the ordinary provisions of the Liquor Law. I do not want there to be two classes of licensees, one, who acts under a privilege and the other who acts subject to the provisions of the Liquor Act. I hope the Minister can give us some assurance in that regard. If he is not able to offer us anything to-night, then I hope that by the time we get to the report stage, or when the measure gets to the Other Place, he will be able to deal with it at that stage.
When these rules are being drafted, I can assure the hon. member that due regard will be given to the observations that he has made, especially with regard to the holder of an authority vis-à-vis the licensee.
Clause, as amended, put and agreed to.
On new Clause 8 standing over.
I have had an opportunity of considering the new clause as proposed by Mr. Hughes and I find that it seeks to introduce a new principle in the Bill not contemplated at the second reading. I therefore regret that I am unable to accept it.
Title of the Bill put and agreed to.
Bill reported with amendments.
The House adjourned at