May I just make a statement regarding the business for next week. On Monday precedence will be given to Orders of the Day Nos. 1 to 3 and 9. We shall then proceed with legislation as shown on the Order Paper and when we make drastic changes in this order, we shall as in the past notify the various parties in advance. We must keep the Estimates back for a while because the Supplementary Estimates, the debate on which forms part of the 125 hours which are available for the Estimates, have not yet been laid upon the Table. It is only right that hon. members should see the Supplementary Estimates before we use up all the 125 hours. There are still two Votes, namely Defence and Native Affairs, which must be disposed of, together with the Supplementary Estimates, and I think that there are only eight or nine hours left.

I wish to move as an amendment—

As to the first one, we move the amendment to deal with one of the objections which we raised to the provisions of this Bill at the second reading, viz., that under the provisions of the Bill a Minister (it may be any Minister) is authorized to amend or suspend parts of any law under certain circumstances, even if Parliament is sitting. Our view is that if any law has to be suspended or amended and Parliament is sitting, the proper place for that amendment to be made is in Parliament itself. Therefore we propose that we should insert “if Parliament is not in session”. That means that during the recess the Minister can act, but if Parliament is sitting, and he finds it necessary to amend or suspend any part of any law in force, he should come to Parliament in the normal way and ask Parliament to accept such an amendment.

In the second amendment we are moving the deletion of the words “in his opinion”. These words seem to us to be redundant because it is “his opinion” of whether any corresponding law which was in force in that Commonwealth country on the date mentioned, has been amended or repealed, or has ceased to operate in so far as the Republic of South Africa is concerned. It seems to us that that is not a matter of opinion, but that it is a matter of fact. Either that particular law, in that particular Commonwealth country, has been amended or repealed, or has ceased to operate, or it has not. It seems to us, therefore, that the proper way to phrase it, is to omit the words “in his opinion” and simply to state that if any Commonwealth country has acted in that particular way, then the Minister concerned may act as provided for in this Bill. Both these amendments, Sir, go some way towards meeting the difficulties which we, on this side of the House, have with this Bill, and it seems to me, moreover, that they leave the power which a Minister requires undamaged. We are, therefore, proposing two reasonable amendments which will not interfere with the effectiveness of the Minister’s Bill and, at the same time, will meet some of the objections we have to it.

I would like to support the arguments advanced in favour of these amendments, by the hon. member for Constantia (Mr. Waterson). I feel, Sir, that it is never right, even when Parliament is not sitting, that a Minister or, what it usually means, a departmental head, should perform unchecked the rightful duties of Parliament. These amendments should, to my mind, be acceptable to the hon. Minister because they show that we recognize the need for fast and swift action by the Executive on certain occasions. There is nothing in these amendments which would have the effect of clogging the wheels of administration, or would slow down any legitimate or necessary action. All they do is to ensure, first of all, that the hon. Minister should not act without the knowledge, the consent, and consultation of Parliament if Parliament is sitting. Secondly, they ensure that we ourselves do not abrogate the legislative powers which the Constitution lays upon us. Mr. Speaker, the insertion of the words “in his opinion” have been said to be redundant. These words are often put in by legal advisers in order that there should never be any question of a Minister’s action being put to proper subsequent examination. In other words, if action is taken because “in the opinion of the Minister” it is necessary, the usual criteria for rejection or alteration will not apply. He can act unreasonably; he can act without consultation; he can act arbitrarily. But so long as the words “in his opinion” are there, he is protected. That is why these particular words have been inserted in this Bill. The hon. member for Constantia has pointed out that this phrase is absolutely unnecessary for another reason; because it will be factual considerations which will cause the Minister to act, and not just mere matters of opinion.

While I am talking on this clause, may I refer to something which the hon. Minister said yesterday in relation to this clause; something which has now a specific bearing on it, while we are dealing with it separately. I want to ask him why he said that this Bill was “an exact counterpart of the Bill introduced into the House of Commons”? We all know that it is “consequential” to the British Act. But why did he say, in effect “just as I am taking powers to act without consulting Parliament; just as I am asking for delegated legislative powers, so the same was done in Britain”? Did his legal adviser tell him that the British Act conferred extra-parliamentary powers on the Ministers of the Crown? If so he was wrong The British Act confers no such powers as this Bill demands. The Minister read out to me a section of that Act and insisted that the words “unless provision to the contrary is made by an authority having power to alter the law” proved that Britain’s Parliament had given delegated powers to Ministers to alter laws. But that is not so. Either he, or his legal adviser, does not understand the proper meaning of those words in the British Act or else …

The hon. member must confine himself to the contents of the Bill.

Sir, this is not a third reading. This clause, which we are considering, contains an express delegation of legislative power to a Minister, giving him the bureaucratic authority to amend or change laws and this power, in our opinion, belongs to Parliament and Parliament alone. The hon. Minister tried to justify the taking of these powers by saying that “in Britain they did the same thing”. But they did not, and he knows that they did not do so. He had been driven into a corner and said this in a vain attempt to get himself out of an awkward situation. I challenge him to tell me that his legal adviser told him so. If his legal adviser did tell him that, then the hon. Minister should get a new legal adviser. In the case of Britain, as will clearly be seen from the wording of their Act, there was no delegation of powers to any Ministers of the Crown. Their Act merely arranged a position of status quo. By the British Act it is left to those legislative authorities which previously possessed the power to alter laws, to make subsequent consequential alterations. This wording “an authority having power to alter that law” refers to whatever legislative authority or instrument either in the United Kingdom or the Rhodesias or the Colonies previously had the power to alter the law and it naturally includes the Parliament of Great Britain. There is, as I said, no alteration of the status quo, no assumption of ministerial powers in the British Act, while in this Bill, by way of unfortunate contrast, the Minister is taking new powers; new kinds of powers. He is seeking the power to do what Parliament should do. Not only does he grasp for legislative powers while Parliament is in recess, but also while Parliament is actually sitting here. He is seeking power to legislate from Marks Buildings, and this we will not allow.

Mr. Chairman, I too rise to support the amendments moved by the hon. member for Constantia. They are, in all respects, very reasonable amendments and amendments which go a long way towards removing the objectionable aspects of this Bill. It is bad enough, Sir, to have an unwarranted invasion by the Executive into the sphere of the Legislature, but it is considerably worse to have such invasion while Parliament itself is actually in Session. This is one of the serious objectionable aspects of this Bill, because it actually shows contempt for Parliament whilst it is sitting. As the hon. member for Wynberg (Mr. Russell) has indicated, there will then be two legislatures sitting: one in Marks Buildings and the other one in this Chamber. Surely that is an intolerable position, Sir, and is nothing else than a contempt for the whole parliamentary system as we have understood it in this country so far. The powers that are being granted here are delegated powers to legislate not in respect of any provision contained in the Bill itself, but in respect of existing laws. This measure shows, therefore, complete distrust in the Legislature, apart also from signifying complete inability on the part of the Executive to place before Parliament a convincing case in support of the changes which are necessary. That feeling, or suspicion, is therefore created because the Executive is unable to put before this House convincing arguments as to why there should be the change in existing legislation, either to remove the legislation from the Statute Book through a process of suspension or by changing it. The hon. Minister should, therefore, give very serious consideration to the first of these amendments. This is not only a very reasonable one, but one which will remove many of the objectionable aspects of the present Bill. I also support the second amendment, viz. to remove the words “in his opinion”, because in the first place why state the obvious? If he is obliged to exercise an opinion, then he exercises the opinion, and there is no need to put that in the legislation itself. What obviously will have to happen is that the Governor-General, or the Minister advising the Governor-General in regard to the matter, will have to make up his mind on a factual situation. He will have to make up his mind as to whether in fact alterations in laws applicable in other Commonwealth countries do affect legislation here. He will have to exercise an opinion to that extent and he will have to make up his mind. But, again I say, why stress the obvious? Unless it is for the very reason mentioned by the hon. member for Wynberg, namely, that it is to ensure that nobody else can have an opinion on the matter, and to ensure that the courts will not be able to test the validity of the proclamation on the grounds as to whether an alteration was, in fact, necessarily made. This legislation simply places the final say in this regard in the opinion of the Governor-General or, rather, in the Minister who advises him, closing the door to any other safeguard and to any further approach by the persons concerned, and closing the courts. I agree with the hon. member for Wynberg when he said that this hon. Minister certainly misinterpreted the British Act when he referred to that as justification for this Bill. I do not want to read the portion again which was read by that hon. member, but I want to make it quite clear that the United Kingdom legislation relates not only to the United Kingdom itself but also to other territories, including the Federation of the Rhodesias, and various territories and colonies. There is, therefore, no single legislature as in our case which will have to deal with any change in existing legislation If the Parliament of the Federation, for instance, passes legislation in connection with the matter, it will be competent to do that. The provisions of the United Kingdom legislation are simply made to ensure that that legislature, that law-making body, can deal with the matter and that is why the provision is made “unless provision to the contrary is made by an authority having power to alter the law”. It is for the very reason indicated by the hon. member for Wynberg, namely to maintain the status quo. It is entirely wrong to try and draw any analogy, as the Minister did, from those words in relation to the situation in South Africa where we have a single Legislature dealing with the matter. You are now bringing about this untenable position in a system of parliamentary government where an unwarranted invasion is to be made by the Executive into the sphere of the Legislature.

In supporting these amendments moved by the hon. member for Constantia, the only observation we have to make is that, if we have any misgivings about them, then those misgivings are to the effect that these amendments could have gone further than they actually do now. The amendments moved, Sir, very adequately meet the position when Parliament is in session, but even when Parliament is not in session it is, we believe, our duty to seek the utmost possible safeguards against arbitrary actions. However, it may be that in some circumstances swift action by the Executive is called for with no alternative for it being taken to Parliament for subsequent ratification, and in those circumstances it would be difficult to frame an amendment which would go further. I have difficulty, Sir, in even envisaging the necessity for the Executive, even when Parliament is not in session, to act in Parliament’s name in this way, although I concede that there may very well be such a necessity, and it is for this reason that we support the amendments in their present form. The hon. member for Wynberg and the hon. member for Johannesburg (North) have argued far better than I could to show that the British legislation does not offer a parallel as was contended during the second-reading debate. There is no provision in that legislation comparable to the delegation of powers envisaged by this clause. I also want to refer briefly to another observation which the hon. Minister made yesterday. He said that this legislation was, very probably, unnecessary. He, indeed, went so far in his reply to the debate to say that, had he known what the attitude of the Opposition would be, he would never have introduced this legislation. Now, had the hon. Minister not introduced this legislation, not only would there not have been these standstill provisions, but there would also not have been this provision whereby the Executive is empowered to act for Parliament. The hon. Minister is, apparently, prepared to contemplate with equanimity—because he said that he might not have introduced this legislation—a situation in which he would not have these powers to act for Parliament itself. If he is prepared to contemplate that situation with equanimity, and if he feels that it is not likely to be necessary to use the far-reaching powers which the Bill now contains, then that seems to me to be all the more reason why he should be prepared to accept the amendment now before the House, which would still leave him with a substantial part of those powers, but would at least restrict them in so far as the time is concerned when Parliament is actually in session. As I said, I hope the hon. Minister will accept this amendment. If he does not want to, then he owes the House an explanation, not only of his statement to which the hon. member for Wynberg has drawn attention, viz., that the British legislation is a parallel and that this Bill is, therefore, necessary to measure up to it, but also of his statement that he would have been contented not to have this legislation at all under certain circumstances. If that is so, then what grounds are there for insisting on these far-reaching powers of delegated action in the name of Parliament?

One could very well appreciate the attitude of the hon. Minister that, when he introduced this Bill, he appreciated the attitude of the United Kingdom Government in passing a standstill measure, because, undoubtedly, its progress was to avoid any disruption to our country which might be disadvantageous, or which might have effects which the British Government did not particularly seek to bring about, because of South Africa’s withdrawal from the Commonwealth. But that is not, necessarily, the vehicle which the hon. Minister is entitled to employ in order to treat Parliament in a contemptuous fashion such as is being done by this clause. The reading of the clause in itself gave one the immediate reaction of a contemptuous attitude being adopted towards Parliament, as well as to the purpose and importance of Parliament in our democratic institutions. I cannot see that there is a sense of urgency to deal with the amendment or suspension of laws which refer to other members of the Commonwealth, nor do I at least see that urgency in the same light as might have been foreseen when legislation was introduced in the British House of Commons. The parallel is not a good one, Mr. Chairman, and one which this side of the House cannot accept in order to justify us giving the Minister the powers which he seeks here. If one examines the clause carefully, one is forced to the conclusion that what is virtually being placed in the hands of the hon. Minister is the right to deal with all the external affairs of the Union in so far as its Commonwealth relations are concerned, without any reference to Parliament, or to the opinion of the Opposition, or to the opinion of people in the country who might hold views which are different to that of the Government. It is, perhaps, the most far-reaching power that one could have sought in the circumstances. If the hon. Minister has no motive of that nature, then these amendments are a very fair presentation to him of the constructive viewpoint of the Opposition which does not want, in any way, to hamper the hon. Minister in the administration of his Department, or in his relations with the other countries in the Commonwealth, but, in doing so, is not prepared to forfeit its duty and its right to be consulted on any matter of parliamentary importance—as this matter certainly is. Consultation should take place in putting before Parliament any measures which are necessary to amend, or to abrogate, or to bring to an end, any laws on the Statute Book. The question of a person’s opinion has always been a very arbitrary one, and it has always received very careful scrutiny by the courts whenever that opinion has been brought before the courts in order to test its justification, its objectiveness and its strength. Now, Parliament really is the court for the opinion of the nation; Parliament is the forum for the opinion of the nation. We believe that in seeking to exercise the rights which are called for here, only in the opinion of the Minister, is much too far-reaching a fact than what he really desires to bring about, namely, to deal with our laws only when a corresponding law, or reference in a corresponding law in any part of the Commonwealth, has been amended, repealed, or has ceased to operate. Unless the hon. Minister can give us more practical examples where the urgency would arise in so far as our reactions to such amendment, repeal, or cease to operate is concerned, one has to grope and search for circumstances where such urgent and immediate action would be necessary for the Executive only to exercise its opinion without any consultation. I do not think that our laws, which would require dealing with in this manner, are of such a nature that urgent action would be necessary in response to what takes place in other parts of the Commonwealth. If the hon. Minister wants to maintain happy relations with other parts of the Commonwealth, as he says he wants to do, I cannot foresee any sense of urgency in dealing with these particular laws. And if there is such an urgency, that matter should always come back to Parliament for ratification. We have, unfortunately, had examples of the hon. Minister’s reaction to matters which happened in other parts of the Commonwealth; we have had his reaction even to expressions of opinion internally, in our own affairs in this country, and I, for one, would not be prepared to place in the hands of the hon. Minister such far-reaching and arbitrary powers when I and my fellow citizens would have to be responsible for some of the utterances and reactions of the hon. Minister to expression of opinions in other parts of the Commonwealth.

We must approach these amendments from the point of view that this clause establishes nothing but reciprocity in respect of the repeal of laws. It is an unfortunate position that we have to create a negative reciprocity, but that is the situation with which we are faced because the British legislation fixes the present position for a maximum period of one year. It can be extended, but within that year certain laws which create reciprocal rights can be repealed. That is the first point.

The second point which I want to make and which we must accept in considering these amendments, is that legislation has been introduced on the logical basis that it is accepted that certain of the Union’s laws must lapse after we become a republic. In introducing this legislation the Government basis its stand on this principle; in approving of the principle the Opposition base their stand on that principle. In arguing logically we cannot therefore fall back on the possibility that this legislation may not be necessary. Then both sides of the House have adopted an incorrect attitude. We must accept that certain of these laws will have to go and that there must therefore be reciprocity of repeal.

In my view the importance of the amendment moved by the hon. member for Constantia (Mr. Waterson) is that it provides that this reciprocity of repeal should not be vested in the Executive, that is to say the Union Government, during parliamentary sessions. But what justification is there for that if we limit the power of the Executive merely to the reciprocal right of repeal, and that is what is being done here. The Executive is not being given a general power to repeal Union laws, but only to the extent that the corresponding law of Britain or a dependent British territory is repealed. In other words, the power of the Executive is limited; it is strictly defined. And I think that we all agree with the principle that if a privilege which the Union enjoys at present in a British territory is withdrawn through British initiative, we should immediately be able to reply by withdrawing the corresponding privilege in our area of jurisdiction. Consequently what harm is there in the Executive of the Union having the power to do so?

Then the second point contained in the hon. member for Constantia’s amendment makes it yet more unnecessary. The hon. member argues that at this moment reciprocity of appeal can be applied if the Executive, the Minister concerned through the Cabinet and the President, considers that a corresponding, let us say, British Act has been repealed. He now wants to lay down an objective test. He does not want to rely on the opinion of the Minister, but he wants to be guided by the facts. If that is the approach then the first limitation on the Executive is obviously unnecessary. Then we are merely dealing with a question of objective facts.

As regards the second amendment. I have asked myself whether there is not sound substance in the proposal that an objective judgment should be applied, and not a subjective judgment in the opinion of the Minister. But I should nevertheless like to support the wording of the Bill as it stands, for reasons of legal certainty. The legislation which will be affected mainly affects individual rights. It is true that under the Merchant Shipping Act it is no longer so much individual rights which are affected; but then there are maintenance orders, the legislation relating to visiting forces, the laws relating to doctors and dentists, the admission of attorneys, etc.—all these affect the right of individuals. What is the most undesirable? That when the Minister considers that a corresponding British law has been repealed, he repeals the corresponding South African law, and the position is final and certain; or that the Minister advises the President to repeal the corresponding South African law, and the possibility of going to court exists, and after court proceedings it may be found that the objective provision of the law that there should be an actual repeal of the corresponding British legislation may not have been formally complied with. Mr. Chairman, my feeling is that seeing that we are dealing with the rights of individuals, it will be safer if the Executive is given authority to repeal the South African law so we can have full certainty that there has been a final establishment of rights and that individuals will not be left in the measure of uncertainty that they can go to the courts to test whether, viewed objectively, there has in fact been a corresponding repeal of the British laws. Seeing that these are mainly individual rights which are affected, I think that as the Bill stands at present it will be the most effective.

I did not wish to participate in the debate, but I nevertheless feel that I should. I am surprised that the Government and its supporters who have fought so vigorously for what they call the sovereignty of Parliament, are now beginning to play fast and loose with the sovereignty of Parliament. In my opinion, when a sovereign Parliament in such a reckless way entrusts such drastic powers to the Executive whereby the Executive can simply suspend laws, then I say that such a sovereign Parliament is irresponsible. It is surrendering its sovereignty for any trifling reason. Here we have a case where, according to the Minister, the legislation is not even necessary, but he has come to Parliament and he has asked this sovereign Parliament to hand over its sovereignty to the Minister who himself considers that the legislation is unnecessary. That is completely out of line with the basis of our parliamentary and democratic system. I do not know whether my hon. friends opposite have already become so accustomed to the reckless vesting of powers in Ministers and whether there are already so many flies in the ointment that an additional fly makes no difference. [Interjection.] The hon. member for Cradock only knows about blow flies (brommers) and he can just go on mumbling. I want to object to this Bill or to the principle that a sovereign Parliament which has always fought for the limitation of the powers of the Executive should simply hand over powers whereby the Executive can cancel or suspend laws. This is a dangerous principle and for that reason I want to make my protest heard. We are gradually going ahead with this process and when the democrats opposite wake up one day, there will no longer be such a thing as a sovereign people or Parliament, but we shall once again be under the old dictatorial powers of the Executive against which we have fought for centuries.

Give us your definition of democratic.

The hon. member would not understand it. But it does not mean that the Executive should be given ever-increasing powers simply to suspend or repeal laws which Parliament has passed.

I rise to appeal to the Minister to bring this debate to an end by indicating that he is prepared to accept the most reasonable amendments moved by the hon. member for Constantia (Mr. Waterson). They are amendments the debate on which can only be within a narrow compass. If the Minister has any reasons to advance, assuming that he is not prepared to accept the amendments, I would like to hear them so that we can debate it. I do not believe there are any reasons. It has been pointed out that the Minister himself indicated that he did not regard this legislation as necessary and the hon. member for Constantia has pointed out that if that is so, clearly these amendments ought to be accepted. On the first point, if there is any urgency, as the hon. member pointed out, the Minister will have power to act notwithstanding the first amendment. In regard to the second amendment, I hope the Minister will give the House the assurance that he will not regard it as being within the scope of whatever powers are given to him to act in any case where there is doubt because where there is doubt the proper body to resolve that doubt is Parliament and not the Minister. If the words “in his opinion” are left out, it will simply mean that the Minister will have to act on the facts. I would like to disagree entirely with the hon. member for Kempton Park (Mr. F. S. Steyn), and I must say I was somewhat amazed that he advanced the reasons he did. He referred to reciprocity. If it should be that in certain circumstances the appropriate body in another part of the world took away reciprocity to the right of a South African doctor to practise in that country, does the hon. member suggest that we should immediately take away the right of reciprocity extended to a well-qualified medical practitioner from that country to practise here? I hope that we are not going to accept a breach in the relations between South Africa and the Commonwealth in that petty spirit, and I hope the Minister will give us an assurance that he will not do so. I hope that we will try to preserve what has been of great value to South Africa, as well as to the other countries.

Without reciprocity?

Yes, What I suggest is that in a case where there is doubt, for the Minister to rush in and take away the reciprocity immediately, as he will have power to do in terms of this Bill, is utterly wrong. I suggest that if a man is here in South Africa and he has qualifications which entitle him to practise as a doctor or a dentist, we should consider that case on its merits and exclude from the rights of that person the question as to whether some state has acted in a petty fashion against a South African. When it comes to professional men, the test should be, firstly, whether that person is properly qualified to serve the people of South Africa. In most fields there is a dire shortage of qualified persons, and as the Government gets on with its plan of developing the non-Whites and their areas, then only will we realize the critical shortage of qualified men. In the light of those circumstances, as the hon. member for Kempton Park put his case—I think he qualified it later—he felt that if there was any action which even looked like a withdrawal of reciprocity, the Minister should have the right to take what is almost primitive action. But I hope that we will not debate this matter in this way. I ask the Minister to apply his mind to this question and to consider what is best in the interests of the country. I have no doubt that if he approaches the matter in that simple way he should concede both these amendments. I submit that they are necessary. I agree with those who said that when Parliament is in session the amendments of the laws of the land should be the prerogative of Parliament. In these amendments it is conceded that if there are cases of urgency it may be necessary for the Minister to act. But the effect of the second amendment is that the Minister would act in cases of certainty and not in cases of grave doubt. I think it is only right that Parliament which makes the laws should be the body to decide in case of doubt. So I hope the Minister will do what I believe is the reasonable thing and the right thing in so far as Parliament is concerned, and that is to modify the power he seeks in the way suggested, preserving the powers of Parliament. I would point out that even if the words “in his opinion” are deleted, if any action is manifestly unreasonable so that no reasonable man could have come to that opinion, the courts would nevertheless be entitled to interfere. Therefore the hon. member for Kempton Park, who I am sure would concede that point, was not quite correct in the statement he made that an action by the Minister would bring absolute certainty. It might in certain circumstances bring uncertainty. The only way to get certainty is to act only in those cases which are beyond doubt, and in cases where there is doubt, to leave the decision to Parliament.

I should just briefly like to associate myself with the argument put forward by the hon. member for Springs (Mr. Tucker) in reply to the point made by the hon. member for Kempton Park (Mr. F. S. Steyn) who apparently takes it for granted that if a privilege which has been granted to South African citizens by a Commonwealth country is withdrawn, it must necessarily be accented that the Minister should act immediately in order to withdraw a similar privilege from the citizens of that country.

Might act immediately.

Yes, but the hon. member apparently accepted that that would automatically follow. The hon. member for Springs has rightly given the example of professional people, medical men, in respect of whom such reciprocal arrangements exist today.

But that does not appear in any law.

There are regulations under the Medical and Dental Act in South Africa in terms of which reciprocity exists between us and certain other countries. The hon. member for Springs has said that the only test should be the professional ability of the person concerned. I agree, but there is another consideration which weighs much more heavily, and that is South Africa’s needs at the moment. Because it may be unnecessary for a British country to have South African doctors practising there, it does not mean that it will be in the interests of South Africa to do the same thing. We must welcome them if there is a shortage of such persons. And this does not only apply in that instance. There are other examples. Take tourists. I can foresee a position where certain Commonwealth countries may act in such a way, possibly out of hostility towards South Africa, that they make it difficult for South African tourists to enter their countries, but for economic reasons we shall certainly not limit tourism in this country. Thus one could continue. Take immigration arrangements. It may be that some step is taken against us, but that it will not be in our interests to do the same thing here in respect of that country. All these examples merely serve to make it clear once again how important the power is which is being accorded the Minister and how difficult many of his decisions may be and how much doubt there may be as to what approach should be adopted. This merely emphasizes once again the importance of such matters being within the competence of Parliament and not of the Executive. The amendment before the House is very reasonable. It could easily have gone further, but as a result of what the Minister himself has said, I still hope that he will accept the amendment.

I am sorry that unworthy motives have been imputed to me by certain speakers. The hon. member for Bezuidenhout (Mr. Miller), for example, said that I was adopting a contemptuous attitude towards Parliament. There is no reason for saying that. It is quite uncalled for. He said that we wanted to usurp the rights of Parliament. That is an unjustified allegation. Let us discuss these matters on their merits and not by this sort of slanging.

The hon. member for Constantia (Mr. Waterson) introduced his amendment in a reasonable way and certain other members discussed it in the same spirit, such as the hon. members for Maitland (Dr. de Beer) and Springs (Mr. Tucker). Let us discuss it along those lines and see whether or not the intention of this Bill is to usurp rights of Parliament or whether my attitude is one of contempt towards Parliament.

Let me say straight away that when this Bill was laid before me I immediately took up with our Law Advisers some of the points raised by hon. members to-day. After the amendments of the hon. member for Constantia were brought to my notice, I asked the Chief Law Adviser to come and see me in order to discuss those points. These provisions have been put into the Bill on the advice of our Law Advisers. There is no question of the Law Advisers wanting to usurp the rights of Parliament. I am sure hon. members will not accuse them of that. It is not fair to adopt this attitude. In discussions with the Law Advisers I asked whether there was anything here which might possibly be construed as having this effect. I have always held, also in the past, and also when we were in Opposition, that too many powers should not be delegated to the Executive. The hon. member for Wynberg in those years strongly complained of Executive action taken without the authority of Parliament. I held the same views, and I am not likely to depart from them, except for very good reasons. In this case there is a very good reason, viz. the protection of the interests of our country. The hon. member for Springs mentioned that point. I want to assure hon. members that these provisions are there only to protect the interests of South Africa. If they were not there it could lead to severe financial loss for South Africa. It may not be possible for the Union Government to act immediately without these powers. The hon. member for Constantia recognizes that. He is quite prepared to accept that part of the Bill which refers to Executive action being taken when Parliament is not in session. His objection is to such action being taken when Parliament is in session. That occurred to me too, and on that point I again this morning had a discussion with the Chief Law Adviser to find out whether it was really necessary, and he assures me that it is absolutely necessary. May I again point out that South African legislation which applies to Commonwealth countries—let us say other Commonwealth countries besides the U.K.—is not affected by South Africa’s withdrawal from the Commonwealth. Such legislation remains in force until repealed or amended. In the second place, may I point out that we are not acquainted with the laws operating in some of these Commonwealth countries. We tried to find out, and that is why there was this delay. I explained yesterday why there was delay in introducing this Bill. Not only did we have to circularize and get the opinion of all Government Departments, but we had to find out what the position was in other countries. That is why there was a delay. It is clear that the position is different in regard to Britain’s relations with us, and our relations with some of the other Commonwealth countries. Hon. members know that—I do not want to mention names of certain countries. My policy is to try to build up good relations and co-operation in matters of common concern … [Laughter.] Hon. members may laugh sarcastically, but that is my policy. Some hon. members are apparently not aware of what has been happening. They do not know of action which is either being taken or is being threatened against South Africa by certain members of the Commonwealth. If I am to judge by some of the statements made here this morning, it would appear that these hon. members are quite happy that South Africa should lie down, and not take any action in return. Reciprocity was mentioned in regard to medical men, etc. That is a minor matter. Reciprocity means more than that, and it works both ways. If South Africa’s interests and our trade are being seriously handicapped and we stand to lose millions of pounds because of action taken by other countries, then in the interests of South Africa it is necessary to act, and to act immediately.

Yesterday you said this had nothing to do with trade.

The hon. member for Constantia recognized the necessity for taking action immediately. I discussed the matter this morning because I wanted to have an assurance from our Law Advisers that this provision was really necessary. They pointed out to me that the purpose of Clause 1, which is sought to be amended by the hon. member for Constantia, is primarily intended to preserve the position as it is to-day, and not to disturb it, unless circumstances make it absolutely necessary to do so. But it was also pointed out to me that it may be necessary, if Parliament is in session, for action to be taken, e.g. in connection with customs duties, to mention only one. They pointed out to me that you do not want to introduce legislation continuously when you have trouble with one country and then again with another country. At the end of the Session—as in the case with customs amendments—a Bill is introduced dealing with all the different amendments. That is the sort of situation which is envisaged. This provision is not to enable the Government, to usurp the functions of Parliament, but to act immediately in the interests of South Africa. I hope members opposite feel strongly as I do, that our interests must be protected. To show the sort of thing that can happen, about a fortnight ago one of the new African states, not a member of the Commonwealth, took steps that no South African travelling, say, to America would in transit stay for longer than two hours at its airport. The country is Senegal, and the airport is Dakar. This Government, without consulting with us, and for no reason whatever, took the action to say that no South African, qua South African, can remain at the airport for more than two hours. If something were to happen and the plane were to develop a technical fault and cannot leave for some time, it means that these people can be taken into custody because they were there for more than two hours. [Laughter.] The hon. member for South Coast laughs, but I would like to see how he would lose his temper if he were stuck at Dakar, and were taken into custody because he is a South African citizen. I mention this to show what can happen.

What has that got to do with the Bill? [Interjections.]

There may be no financial loss involved, but hon. members opposite seem to find it amusing that South Africans should be treated in that way. [Interjections.] It is necessary to have these powers.

The hon. member further asks that the words “in his opinion” be deleted. He refers to the fact that the opinion must be expressed only on what he calls matters of fact, as to whether or not a certain law was in force in a particular Commonwealth country on the date mentioned. That is quite right. That was also my impression, and I asked the Law Advisers why it was necessary. They pointed out that the key word is “corresponding”, i.e. a corresponding law. The Minister first has to make the necessary inquiries to find out whether it is a “corresponding” law. The words “in his opinion” refer only to the fact that it has to be a “corresponding” law. The Minister must give his opinion as to whether that is so, or not. Sir, in this matter also there has been no question of usurping the powers of Parliament, and all that sort of non-sense. These provisions are introduced purely for the purpose of protecting the interests of South Africa. To us on this side of the House the interests of South Africa are of very great importance. I hope there is the same concern on the other side. [Laughter.] Sir, that is the type of people we have to deal with. To them the interests of South Africa is a laughing matter. What they are really concerned about in this debate is that it gives them a chance of attacking the republic. Let us look to see what is required in the interests of our country. That is the object of the Bill.

The hon. member took the line that I had said yesterday that it was not really necessary to introduce the Bill. In a certain sense that is so, but on the other hand I pointed out that the Bill was to give effect to an arrangement between our Prime Minister and the British Government. Secondly, it was pointed out to me that because we are not acquainted with the laws of the other Commonwealth countries, situations might arise where it is necessary to act. That is the object of this clause. In the circumstances I am not prepared to accept the amendments.

I must say that I am rather disappointed in the Minister’s reply and I am also rather bewildered.

So is he.

He assured us that he is and always has been a supporter of parliamentary procedure and I think he is; that has been my experience of him. What he said rather boils down to this that he would like to accept our amendment but his Law Advisers won’t let him. Sir, he talks about the interests of South Africa. The interests of South Africa are not at issue at the moment. What is at issue is how the interests of South Africa can best be protected. The hon. the Minister wants us to accept the fact that the interests of South Africa can better be protected by Executive action on the part of the Minister than by leaving Parliament to protect those interests. My amendment only deals with when Parliament is in session. If an emergency does arise when swift action becomes necessary, Parliament is here. If an emergency step is necessary the Government can put through legislation in a day.

As quickly as this.

Much more quickly than he is putting this Bill through. All the arguments about emergencies that might arise and that swift action may be necessary, to my mind, fall away provided Parliament is in session and is available to deal with them. It can deal with them in an hour or a few minutes if the matter is really urgent. Sir, the hon. the Minister has referred to the advice of his legal adviser but he has not passed that advice to us. It may be that that legal advice may persuade us too but we do not know what it is. He simply says that the legal adviser tells him that this has to be done, and that in the interests of South Africa we must therefore leave it to him. I cannot accept that. We believe that when Parliament is sitting the proper guardian of the interests of South Africa is Parliament and not any Minister. But in order to deal with a purely hypothetical situation which the Minister himself tells us may not arise at all—and I am sure he is right; he is not even sure that this legislation is necessary—he is creating a precedent here which from the parliamentary point of view may have repercussions of a very serious nature in the future. Our legislation in recent years has been deteriorating in its quality, very largely because of precedents. A little thing is introduced in a Bill, as in this Bill for instance; the next time another Bill comes along and this Bill is then quoted as a precedent, and because Parliament accepted this in this one instance, therefore Parliament is expected to accept it in future instances as well. I think the powers of the nature for which the Minister is asking here should only be given under the most extreme circumstances and under very careful safeguards. I do not say that there are not occasions when they should be given, but here where we are having to deal with situations which may arise when Parliament is sitting, calling for the amendment or the repeal of laws which the Government discovers are similar to other laws in the Commonwealth, they can be dealt with in this House within a few hours, and I would like to know the legal adviser’s argument against that; why he advises the Minister to bypass Parliament, to suspend parliamentary authority and to leave it in the hands of the Executive when there is a perfectly good Parliament sitting here ready to deal with it at any moment. I again say that I am disappointed in the hon. the Minister whom I know has a good parliamentary record. I am not talking about his political record with which I do not agree, but he has been a supporter of parliamentary practice and the rights and the duties of Parliament. I feel that he is letting down Parliament very badly if he cannot accept my amendment, and without giving us any sound reason why it is not possible for him to accept.

May I for the enlightenment of the hon. member say what the opinion is that I received from our Law Advisers. It is possible that the Government will be required to amend Union legislation immediately, and even often, and if such amending legislation should be effected by Parliament while it is in session, it may require a continuous process of minor amendments to a number of existing Statutes. In order to prevent this, the present Bill enables the Government to act immediately and as required, and also expeditiously. When the existing law or laws require to be amended by the Minister, or the Ministers concerned, such amending legislation would in the normal course of events also include amendments by proclamation, which have been effected in the meantime. That is the trouble with which our Law Advisers appear to be faced, that you do not want to encumber Parliament with having to act continually. We do not know how many of these things are going to happen. There are at least four Commonwealth countries which are strongly opposed to South Africa where action has already been taken, and where they have promised to take further action, and therefore it may be necessary …

Have we any laws that are affected by that action?

Yes. But we have to find out exactly what those laws are. We are not acquainted with the laws of those countries. It seems to me that you do not want to make a farce of Parliament …

This is making a farce of Parliament.

… by having to introduce amending legislation continuously. That is the position. I discussed the matter with the Law Adviser again this morning and he feels very strongly that the Government should have the necessary powers to act expeditiously without having to come to Parliament continuously for amending legislation.

I understand the Minister’s difficulty and it is very kind of the legal adviser to try to save Parliament trouble. But, Sir, with great respect to the hon. the Minister I think it is a very poor argument. What is Parliament here for except to look after the interests of this country? The law adviser’s advice to the Minister is that Parliament should not be allowed to look after the interests of South Africa.

Parliament is not here for obstruction.

Mr. Chairman, I take the greatest exception to that remark by the Chief Whip. We are dealing here with Parliament and the rights and the responsibilities of Parliament and one would have expected the Chief Whip opposite to be interested in the subject.

On a point of order, I would ask that the Chief Whip be asked to withdraw that remark. It is a reflection on Parliament.

It is permissible to say that in the House of Commons.

With great respect to the hon. the Minister I think that the advice which the legal adviser has given him is bad. I think it is bad advice in the interests of Parliament and I would have expected the Minister to be strong enough to use his discretion and to back up the rights and the responsibilities of Parliament. I again appeal to him to give serious consideration to our amendment and show that he for one respects the duties and the rights and responsibilities of Parliament.

I do not think this Parliament will be prepared to accept the advice of the Minister’s law adviser, however disinterested he is said to be or however competent he may be in his own limited sphere, as to what our functions as parliamentarians should be. Obviously he has advised the Minister as to the best means of administering his portfolio and altering those laws which in his opinion should be altered, quickly with the least amount of trouble from Parliament. The reasons given for rejecting our amendments are footling. The Minister says that the Executive often has to act immediately or quickly. We have acknowledged that and we have given him the instrument for so acting when Parliament is not sitting. The legal adviser, on whom the Minister relies, says there will be a continuous process of minor amendments to laws and Statutes. In his opinion most of these amendments will be of an in-significant nature and he does not want to “worry Parliament” with them. Sir, we, not he, are the judges of that. If Parliament wants to be worried with minor legislation Parliament should be worried with legislation. After all, that is our function. It will be a sad day if it becomes the function of a law adviser. This is the place for legislation. There is no measure that is too unimportant for the consideration of Parliament. We will give it the attention we think it deserves. If it is a minor matter and does not involve great principle we will pass it quickly. And even where a Minister, because of haste, has been granted powers to legislate himself, he should come back and account to Parliament at a later date. Whatever a Minister does by means of conferred powers should be capable of being annulled or modified by a later resolution of both Houses of Parliament. Parliament should be able to do so quickly and automatically. Machinery should be created to ensure this. Of course correction is made without any legal prejudice to anything already performed as a result of properly authorized ministerial action. I would have thought that in connection with a Bill such as this, or if the Minister has a minor amendment to make to some law which he feels it is necessary to get passed quickly through this House, he would have been well advised to consult the Opposition, through their Whips. That has been done before. That is done frequently by the Minister of Railways, for example, in transport matters. He consults me and points out the urgency of the matter. I see my Whips and more often than not we decide to push it through quickly. A necessary and urgent measure goes through this House in a few minutes if all sides are agreed or if previous consultation has ironed out differences. If this Bill had been approached in the same way there may have been a different approach to this debate. Why did the Minister not come and talk with us about it weeks ago—instead of thrusting this Bill on us suddenly and unexpectedly? He could have said “This is what I propose to do and these are my reasons and here is the opinion of my legal adviser as to why this measure should be hurried”. Prior consultation can lead to quick compromise, can save time in emergency. That is the parliamentary way to do things. He knows very well that we have the interests of South Africa just as much at heart as he himself. He knows that if any agreed legislation has to be hurried through Parliament for the good of the country, he can expect the Opposition to cooperate. But I am convinced that Parliament should never delegate wide, uncontrolled powers to any Minister to do what he thinks is for the good of South Africa, in his sole opinion, without any reference to Parliament when it is in session. When it is not sitting we accept the inevitable and say the Minister can act alone, with Parliament’s permission and subject to later correction should he act unwisely or arbitrarily. Yes, as is interjected, also subject to the correction, if they have the “guts”, even of his own party in Parliament. I would like to say one thing more. One of the fundamental rules of parliamentary practice is that no Minister should shelter behind his Department or his departmental head or any other subordinate official. It seems to me that the Minister in the case of this legislation is wrongly seeking to shelter behind his legal adviser. Does he accept all these views of the legal adviser? If he does he should make up his mind and accept them as his own. He should not drag in his law adviser. He should stand on his own feet. If he thinks that alterations to laws, whether to the Group Areas Act or any other Act, should not be brought before Parliament, he should say so outright and not hide from the responsibility and shelter behind an anonymous and, of necessity, silent civil servant. The excuse that he “does not want to worry Parliament with minor legislation” does not ring true. The substance of such an excuse is very frail and should not be accepted.

I must say that I, like other hon. members, am very surprised that the Minister finally did apprise us of the advice that he had from the legal adviser. The hon. the Minister has been building a sort of inverted pyramid of arguments in support of this Bill upon the point that he has had this advice, and I certainly expected to hear something in the nature of legal advice which would reveal a point that nobody had thought of and some cogent reason why it is necessary for the hon. the Minister to have these powers. But what have we been told? We have been told that it may conceivably be necessary for Parliament to act “immediately and even often” as I wrote down the words. Well, it may be necessary for it to act often and it may not be necessary to act often but Parliament works often and Parliament legislates often and Parliament, as other hon. members have pointed out, is here to do its work, and it is here to do its work even if this work means frequent legislation. In the light of a great deal more that the hon. the Minister has said during this debate, we have no reason to expect frequent legislation at all. The Minister has told us that he would have been quite happy not to introduce this Bill. But I let that pass. I link it up with the fact that the Minister indicated to us yesterday that there would be very little to do under this Bill and to-day he says that it may be necessary to legislate immediately and even often, but that still does not matter. There is still no reason here why Parliament should not have its rights and do its work. And then when the Minister goes on and says that we do not want to make a farce of Parliament by coming continuously with little bits of legislation, it is absolutely astounding. He does not want to make a farce of Parliament by continually asking Parliament to do its work. Sir, has it not occurred to the hon. the Minister that to take the work of Parliament away from it and to do the work of Parliament in Marks Buildings is making a farce of Parliament? That is what is being suggested here.

It did not worry them with the Group Areas Act.

In the case of the Group Areas Act they have come to this House practically every year during the period that most of us have been here for amendments, but we do not think that that makes a farce of Parliament whatever we may think it makes a farce of. Sir, when the hon. member for Wynberg (Mr. Russell) spoke just before me and he was advancing similar arguments to those I am now using and said that we are just as concerned with the interests of South Africa as anybody on that side of the House, he was greeted with immediate jeers and sneers from the other side of the House, suggesting that the hon. member was not a good or patriotic South African. I think it is extremely deplorable that this sort of thing should happen in the House, but I do not mention it just to say that it is deplorable; I mention it because I believe that it is relevant to the argument that is going on here. The argument that is going on here is really about this. Hon. gentlemen opposite have gone so far with the perilous process of identifying the party with the State, that it really does not seem to them that hon. members on this side of the House or other citizens of this country, not belonging to their party, have any real right to play any part in the process of legislation at all, and that is why quite automatically—not as a pre-planned measure—hon. gentlemen over there react whenever people on this side of the House claim some right in these processes, and that is why it is quite natural for hon. members on that side, for certain purposes, just to leave Parliament on one side and to get the Executive to legislate because the Executive, after all, is of the party and hon. gentlemen on this side are not of the party. This is the essence of the danger that we face and that is why this Bill, which the hon. the Minister hoped would go through so easily, is becoming such an important feature of this Session and of the work of Parliament in general. It is because this Parliament is here to represent South Africa and not simply those who agree politically with the hon. the Minister, that it is necessary that Parliament should have its powers if we are to retain even a shadow of the name of democracy in our country.

I am rather surprised also at the hon. the Minister shielding behind the opinion of his law advisers.

Order! That argument has been used.

Sir, the point I want to make is that while the Minister may be advised by the legal advisers on the matter, the final decision obviously rests with him as the Minister in charge of the Department, and I am not convinced at all and I do not think anyone else is convinced that it is essential to have the words “in his opinion” retained in the clause.

Order! The hon. member must proceed to another point; that point has been used.

If the hon. the Minister has as his objective the avoidance of any unsatisfactory disruption in the relations between South Africa and any other member of the Commonwealth arising out of changes in their legislation brought about through South Africa ceasing to be a member of the Commonwealth, then we come back to the question which we put to the Minister but which he failed to answer, and that is to explain to us why there is such a great sense of urgency as to warrant the Minister having full discretion to amend and alter the laws by proclamation.

The argument of urgency has already been used.

But we have not had a reply, Sir.

The hon. member cannot repeat arguments which have already been advanced.

With respect, Sir, I am not going to deal with that point, but I want to submit that if the Minister refuses to reply to the questions put to him, surely one should be enabled to press the Minister for a reply. The Minister has gone to great pains this morning, in answering the issues placed before him by this side of the House, to explain that his law advisers insist that every provision or sentence in this particular clause is necessary in order to enable him to deal adequately with these important problems which he says affect the future happiness and welfare of South Africa. We are quite prepared to accept what the Minister says provided he informs the House clearly why he needs the full extent of these powers. If the Minister wishes to close up like a clam and to indulge in a certain amount of sarcasm after dropping the cloak of suaveness with which he approached this matter originally, I want to say that the Opposition and the country are entitled to know why he wants these powers. He cannot merely give the sort of reply he has given and, if I may suggest it with respect, be protected by the Chair …

Order! The hon. member may not reflect on the Chair.

If I have done so I withdraw it. The point I want to make is that the Minister has been extremely clear this morning in his determination not to deal with the issues which have been put to him. He has virtually said that as far as he is concerned he is not wedded to any part of this particular clause, save that his law advisers insist that it is necessary in the interests of our country. We want to know why it is necessary in the interests of our country that he should have all these extraordinary powers. He does not deny that it gives him extraordinary and arbitrary powers; he does not deny that he takes unto himself certain powers which properly belong to Parliament, but he fails to tell us why he is justified in doing so and why the country should have laws of this nature on the Statute Book without the hon. the Minister accepting any responsibility; he simply says that he has been so advised. Sir, many of us have had experience of executive government; others on this side have had experience in minor forms of government in this country; we know what advice is. All heads of Departments are there as permanent officials to advise the elected representatives of the people who serve the community. We know that we have not the fullest technical knowledge and we therefore rely on advice from our permanent officials of the State or the permanent officials of other authorities. But the decision as to whether or not to use that advice as an elected representative of the people rests with the person who has been so elected, and that is the issue that is before the House this morning. What does the Minister say about the necessity of this legislation—not what the legal adviser says about the necessity of this legislation? Unless the Minister is prepared to answer that I say that this side of the House will not be satisfied with what he has said this morning. Sir, I know what the hon. the Minister’s motive is. He wants to present to the United Kingdom a picture of a Minister who, acting on legal advice, merely seeks to make an adjustment to our legislation so that it will fit in with United Kingdom legislation. However, we are not concerned with these niceties; we are concerned with the Union of South Africa and its future, not the niceties of the Minister vis-à-vis any other government. We are concerned with the rights of Parliament and we want the Minister to discharge his responsibilities as a Minister of the Crown to Parliament and to give us a satisfactory explanation as to what he desires in this clause.

Sir, I rise to challenge the Minister on the legal opinion he has given to this House. The Minister has said that, in the opinion of the law advisers, the words “in his opinion” relate to “any corresponding law” which is the governing provision and I challenge the Minister to produce an opinion to this House to show that the words “in his opinion” do not also relate to the later part of this clause—

It is perfectly clear on a construction of this clause that those words “in his opinion” relate to “any corresponding law” and they relate to the question as to whether such a law has been amended or repealed or has ceased to operate.

My point is that “corresponding” is the key word.

Perfectly correct, but it also goes on to say “where any corresponding law has been amended or repealed or has ceased to operate”. That is what the words “in his opinion” relate to and it is quite clear that the hon. the Minister must have completely misunderstood the opinion of the law advisers. He is given a discretion to decide whether a law is a corresponding law and also whether it has been amended or repealed or has ceased to operate. I must say I was horrified by the example given by the Minister. He says that there may be circumstances under which it would be necessary for South Africa to act at once, and having obviously given great thought to this law, the only example he was able to give hastily, apart from possible provisions relating to customs duty, etc., in which a power vests in the State in any case to act without coming to Parliament, was one of a law passed in a non-Commonwealth country which discriminates—I say in a disgraceful way—against South Africa. In any case, Sir, with respect to you, I say that that particular example was not relevant because of the fact that under this law you would not be able to do anything to any existing South African law to bring similar provisions into operation into this country.

What about the Ghana law?

I am dealing with the example which the hon. the Minister gave. The hon. the Minister gave the example of a law passed by Senegal, I say a disgraceful law, which would mean that if South Africans were held over there for more than two hours they would have to be taken and locked up. Firstly, I would like to say that I hope South Africa will always remain a civilized State and will never in any circumstances take any such steps against the citizens of other States. But that is not the issue. The point is that that is the example which the Minister gave to us. It is an example which is not relevant because the powers contained in this measure would not give him the power to inflict similar indignities on a citizen of another State, so that case is out. The Minister now refers to the Ghana law. I presume he refers to the law which requires a declaration from South Africans that they do not agree with the Government’s apartheid policy.

They are not allowed to leave the aeroplane unless they sign that declaration.

Obviously I do not approve of that law, but on the other hand I do hope that South Africa, as a civilized State, is not going to follow examples such as those of Ghana and Senegal.

Why do you say that?

I say that because I hope that we will remain a civilized State. I prefer to follow a very much higher rule; I believe that the sort of rule that South Africa should follow is: “Do unto others as you would have them do unto you.” [Interjections.]

Cannot we get some order from the hon. member for Cradock (Mr. G. F. H. Bekker)?

He is continually interrupting.

Order!

I come back to the main point I want to make. [Interjections.] Sir, I hope that hon. members on the other side will do the Minister the courtesy to enable him to follow my argument. The argument I am putting to him is this, that it is quite clear that this term “in his opinion” vests enormous discretion in the Minister. It is quite clear that he is wrong in saying that it refers to the question of any corresponding law. It gives him much wider powers. I hope therefore that he will reconsider the matter and accept the amendment which has been moved. Sir, it will give the Government all the power they want and I do hope the hon. the Minister is not going to tell us that the Government wants powers beyond what is necessary in the circumstances of the case. I submit that the clause as it would read if the amendments are accepted will give the Government all the powers that are necessary in the circumstances of the case, and I repeat that it is essentially in the interest of Parliament that, where there are doubts as to the law, those doubts must be resolved by this House and not by a decision of the Minister on a clause in the Bill which gives him wide discretionary powers by vesting in him the right to act in accord with his own opinion. Sir, even in relation to this Bill, the hon. the Minister tells us that he is acting on the opinion of the law advisers. I beg of him to uphold the traditions and prerogatives of Parliament by accepting these amendments and not to insist on the passage of this measure in its present form.

I did not mean to come into this debate in view of the very clear way that the matter has been put by members on this side of the House. But, Sir, the remarks made by the hon. the Minister made it quite clear that it is essential that we thrash this matter out. He said that he did not want to make a farce of Parliament, but he is doing that very thing to-day. Parliament is simply a façade to-day; a façade as we have seen in such countries as Nazi Germany, Mussolini’s Italy and as we see in the communist states where Parliament is merely a façade to cover the actions of the Executive. The hon. the Minister comes here and suggests that the country should be ruled by the Minister and his legal advisers. What are we here for in Parliament?

Order! The hon. member must confine himself to the clause.

Sir, I am confining myself to what the hon. the Minister said. With all respect, Sir, the hon. the Minister has told us what his legal advisers have said. He has given a statement to the House and I am certainly entitled to reply to it. I am replying to what the hon. the Minister said. He has told us that he is doing this because his legal advisers have given him this advice. In other words, he proposes now even when Parliament is sitting to have South Africa ruled by an Executive, that is the Minister and his legal advisers. That is exactly what certain totalitarian countries have done and are doing to-day because there the Parliament is merely a façade and the Executive rules, and not the representatives of the people.

Like Ceylon and the United Kingdom.

It is always an amazing thing that whenever the Nationalist Party, which loathes the United Kingdom, gets into a tangle, they quote the United Kingdom as an example to follow.

We as the representatives elected by the people have the greatest objection when Parliament is sitting to allow the country to be ruled by the Executive instead of by Parliament, and that is the power which he is taking. The hon. member for Constantia put it so clearly over and over again. All that he asks for is that when Parliament is sitting such matters should be debated here and Parliament should decide and not the Minister.

Order! That argument has been used repeatedly.

It is a good thing to use it again, Sir. Apparently we are not going to be allowed to talk at all in this House in a short while. It is coming down to the stage when the Minister puts a muzzle on Parliament. He is going to do exactly as he likes when Parliament is not sitting; and when Parliament is sitting, we are not to be allowed to discuss important matters till it is too late to influence decisions. It is nothing more or less than an attempt to get away from having to face Parliament in regard to what he calls “little bits of legislation”.

Order! The hon. member must confine himself to the contents of the clause.

It is obvious that I am not to be allowed to speak now; so I will sit down.

I meant to protest strongly at the fact that this opportunity has been grasped at to make offensive and unworthy remarks about the hon. the Minister. The hon. member for Bezuidenhout (Mr. Miller) and the hon. member for Green Point (Maj. van der Byl), who is now leaving the House, and others have taken this opportunity to show that as far as this clause is concerned hon. members opposite are the only people who have any love or any appreciation for the sovereignty of Parliament. Allow me to say clearly that the hon. the Minister as a person has shown by his actions throughout all the years that he has been in this House that he is very jealous of the sanctity of the sovereignty of Parliament. On behalf of myself and this side of the House I want to say clearly that if this clause contains anything which really infringes on the sovereignty of Parliament, if it really infringes on the powers and privileges of members of this House, we shall be the first to ask that it be changed. We are extremely jealous of the sovereignty of Parliament, but we are just as eager to guard against an opportunity such as this being used to make offensive remarks about the Minister under the guise of defending the sovereignty of Parliament as the hon. member for Bezuidenhout has done. He is the last person who can say anything offensive about an hon. Minister such as the Minister of External Affairs.

Order! The hon. member must now come back to the clause.

As far as this clause is concerned, the hon. the Minister has made it quite clear that as he sees the position, and according to the information at his disposal, there is no question at all of any infringement upon the sovereignty of Parliament. I am not able to judge in legal matters, but according to information which the hon. the Minister has given us, it is clear that this clause does not effect the sovereignty of Parliament, and I am prepared to accept that. If that were not the position, I too would not have been prepared to accept it. But the hon. the Minister has gone out of his way to give this explanation, which he has also based on the advice of the senior law adviser. The hon. the Minister has also said that the steps which are taken from time to time must be referred back to this Parliament and then embodied in legislation. For that reason we support this proposal.

I am not surprised that an honourable and gallant member like the hon. member for Green Point (Maj. van der Byl) rises in high indignation to criticize this unfortunate measure which is another milestone on the dangerous road leading us to isolation from our friends and blood-brothers in the Commonwealth. I am not at all astonished that his exasperation forces him to leave the Chamber. But I would like, if I may, to come back to the hon. Minister and the advice he says he received from his law adviser behind whom he now seeks shelter. Like the hon. member for Springs (Mr. Tucker) I want to question the validity of his arguments. First let us examine the reason why this particular phrase “in his opinion” is used. The hon. Minister says that his law adviser told him that this phrase “in his opinion” is essential because it has direct reference to the phrase in the clause “any corresponding law”. I believe that it has. I believe it has a direct reference to “any corresponding law which was in force in any Commonwealth country on the date mentioned”. That “corresponding law” must have been “amended, or repealed, or have ceased to operate in so far as the Republic of South Africa is concerned”, before the Minister can take action. While these words “in his opinion” are in the clause, the Minister can alter any law which he thinks, or “in his opinion” affects us, and whether it is a corresponding law or not, we cannot question his interpretation because the words “in his opinion” protect him. The law adviser’s advice to him is sound to this extent that his aim is primarily to save the Minister from getting into any possible trouble should he make a wrong decision. If “in the Minister’s opinion” a law “corresponds”, even if it is not in fact a corresponding law, then the Minister is safe. For the hon. the Minister can claim that, though mistaken, he has applied his mind to the problem. We must then accept it because the clause says “in his opinion”, He is not even obliged to be reasonable, he is not even obliged to be fair, he is not even obliged to take evidence or ask advice. The hon. the Minister should now realize why the law adviser wants to retain these vital protective words. Not for Parliament’s sake, but for his. All law advisers want to clothe their Ministers in powers which enable them to avoid the correction of Parliament, if it is at all possible, and in the performance of their administrative functions, enable them at all costs to avoid the correction of the courts of law. That is why the phrase “in his opinion” is in this clause. Not for the reason the law adviser gave to the hon. the Minister; not for the reason that the hon. the Minister gave to this House. May I say that the hon. the Minister himself has proved to be a very bad judge of what law in the United Kingdom “corresponds” with any law of this House. He has told us that the Bill before us corresponds in every way to the one that was passed in England.

I never said that.

I think the hon. the Minister is right. He did not say quite that. He said something worse. He said that the “corresponding” law in England “delegated powers to the Minister in the same way as this Bill does”, That is untrue. We have asked him to justify this statement and to show where there is any provision in the British Act giving Authority to a Minister to alter laws in the way this Bill of our does. He cannot do so. There is no such provision. I should like to quote now the Under-Secretary for Commonwealth Relations who said, in the House of Commons, that their so-called “corresponding” law was “designed merely to maintain the status quo”. This Bill of ours does not merely retain the status quo. The hon. Minister quoted the law in England which says that “all existing law which operates as a law of, or any part of, the United Kingdom shall … have the same operation in relation to the Republic of South Africa … unless provision to the contrary is made by an authority having power to alter that law”, What is an “authority having power to alter that law”? That “authority” is Parliament or a statutory instrument (if the law was made by a statutory instrument) or a legislative body in another Commonwealth country or a colony or a country such as Southern Rhodesia. If that “authority” had the power to alter that particular law it can now make corresponding alterations. There is no delegation of powers to a Minister anywhere whatsoever in the British Act.

What about an order-in-council?

Does the hon. Minister know what an order-in-council is? When I used the words “statutory instrument”, as the hon. the Minister ought to know, I covered orders-in-council, which themselves differ in form. I believe there are orders-in-council for Scotland and the United Kingdom which are of different force and effect. Let me tell the hon. the Minister this. I sincerely believe that in Britain Parliament would never do what he seeks to do, in spite of the fact that they have machinery for the correction of any abuse of delegated powers. In this House, where we have no such machinery, the Minister wants to take these vast powers. In Britain they have a House of Lords Committee which examines what use Ministers make of certain types of delegation. In the House of Commons they have a committee that examines, in certain narrow orbits, what is done by way of delegation. We have no such committees, no such automatic correction of abuse of powers by Ministers. And yet the hon. the Minister wishes to take uncontrolled powers here and claims he does it because a “corresponding law” in Britain does the same. He knows now it does not do the same. He has failed so far to justify his previous statement and I challenge him now to do so, or to accept our amendments.

I hope the hon. member for Vanderbiljpark (Dr. de Wet) will now come to the support of this side of the House, because a moment ago he said that if this clause contains any provision which derogates from the sovereignty of Parliament, he will oppose it. I suggest that the hon. member has not read this clause, a clause which states clearly and specifically that the Governor-General by proclamation may amend legislation of this House, may amend a law passed by the elected representatives of the people, and that the Governor-General (which means the Minister) may by a stroke of the pen in his private office amend the laws of this House. That is a clear and unequivocal derogation from the sovereignty of this Parliament. It is placing the Minister above this Parliament, above the elected representatives of the people. We, Mr. Chairman, were elected to this House to represent the people of South Africa, and we must make laws. This provision enables the Minister, a Minister of the Crown, to repeal or to amend a law made by the legislature elected by the people. It is placing the Minister above Parliament and above the elected representatives of South Africa. If we allow a Minister of the Crown to amend or to repeal a law passed by this House, then surely that is placing the Minister above Parliament. Therefore, I hope that that hon. member will support us in our opposition to this clause.

But there is another aspect of this clause which has not yet been mentioned, and I want to put it to the hon. the Minister that he in fact is, as he has said, not in favour of this clause. Yet, he is forcing it through this House and I suggest that he is doing so because he has instructions to do so. There is only one person who can make the Minister force this legislation through this House against his own better judgment. He has said that it is not necessary. He has said in fact that he does not like this provision. Now if despite his own questioning as to the need or correctness of these provisions he is still pushing them through the House, then the only reason must be that he is doing so on the instruction of the Prime Minister. The reason for this, I submit to the Minister, is that the Government does not want Parliament and through Parliament the people of South Africa to know what laws will have to be amended. They want these amendments to be made in the secrecy and the quiet of an office and only some months afterwards when the issue has been forgotten, laid upon the Table of the House. The object of this provision is to prevent South Africa, through its elected representatives in Parliament, from knowing what laws are about to be amended. If a law is to be amended or repealed, and it goes through this House, then it is public knowledge and the property of the people of South Africa, but this provision enables any law to be changed, and the Minister himself has stated that he expects a large number of changes to take place. In other words he expects South Africa’s relationship vis-à-vis our former friends to change radically in the months ahead.

Which friends?

Our former friends in the Commonwealth. He expects that our situation and our relationship is going to be radically changed. He has said that he is excepting very many little minor changes. He is expecting changes which will affect. South Africa’s future, and he knows that he must keep those facts away from the people as long as possible, so that they will not recognize the effects of our leaving the Commonwealth. He is using this back door to enable him to keep quiet changes which he is going to make in relation to our contact with the rest of the world. Every time of course something annoys the hon. the Minister, he flies off into a rage and he puts his foot into it. We are used to that “tit-for-tat” reaction. The hon. the Minister is passing this provision to enable him to indulge in that pet weakness of his of flying off the handle every time something annoys him. That is, I submit, why this clause is being passed. He is not prepared to give to Parliament Parliament’s free and unquestionable right to amend its own laws, and I ask again that the hon. member for Vanderbijlpark should now rise and oppose this clause which interferes with the powers and privileges of this House.

I do not want to reply to the hon. member for Green Point (Maj. van der Byl) because he reminds me very much of a she-goat on the point of lambing. The only difference is that he has bleated far more and lambed far less. I actually want to reply to the last speaker who has just sat down. The essence of this whole clause which hon. members of the Opposition refuse to grasp this morning is the concept of reciprocity. These are the crucial words: “Any corresponding law”. There must be reciprocity and when that reciprocity ceases, then only will the Minister be entrusted with a measure of discretion. Hon. members of the Opposition apparently refuse to understand that point this morning. They are making a great fuss, quite unnecessarily. I just want to say that if the Opposition want us to take them seriously in respect of such matters, seeing that they claim to be the great champions of the sovereignty of Parliament, then their attitude should not smack so much of agitation. It seems to me this morning that all the fuss they are making is merely an agitation with a view to 31 May. Here they are merely acting as the mouthpiece of the agitators who now want to create panic in the country, and their whole object this morning is to agitate and to kick up a fuss and to incite people …

Order! The hon. member must come back to the clause.

Mr. Chairman, I am only discussing the attitude adopted by the Opposition this morning. This is the only impression which their behaviour is creating because in confining oneself to this clause, Mr. Chairman, one cannot ignore the things which the Opposition have said. They have not confined themselves to it, and consequently I want to reply and to make the country understand clearly that their opposition is not aimed at this clause, but that their opposition has ulterior motives. I repeat: If a law of any other Commonwealth country is repealed, not through the action of our Government but through the action of another Government, then that legislation is “obsolete” because it destroys the reciprocity on that side and then only must the Minister also withdraw that reciprocity in our case. It is quite clear. Why then all this talking? I want to make an appeal to the Opposition to stop kicking up dust, because they are merely creating the impression that they are agitators and that they cannot be taken seriously.

I think that one should ignore the hon. member for Brandfort (Mr. Froneman) altogether. He apparently has agitators on the brain.

Two important points are at issue here. I cannot approve of the fact that there is an ever-increasing tendency for the powers of Parliament to be exercised by the Executive, by Ministers. That is bad enough. But I want to say that I am also very sorry that the hon. the Minister has had to use a public servant to hide behind. We all know that public servants must of course give advice to their Ministers. That is essential. But when he has given his advice, it does not behove any Minister to hide behind that advice. He must take full responsibility for what he intends doing on the basis of that advice, and he should conceal that there is an official who has in effect insisted that he should take certain action, despite the fact that he does not agree. Here we already have a further development, namely that not only is a Minister controlling and running Parliament, but a bureaucracy behind the Minister is doing so and the poor Minister himself is in the position that he is now being controlled by a public servant. I think it is going very far when the Minister in effect uses a public servant as a rampart behind which he wants to hide. The second point is that I am sorry that the Opposition are not consistent. If it is wrong in principle for Parliament to transfer its powers to a Minister, then it is wrong. I regard it as absolutely wrong, not only when Parliament sits, but also when Parliament is not sitting. I deplore the distinction which the Opposition is drawing between when Parliament is sitting and when Parliament is not sitting because in reality they are conceding the principle for which they are fighting. The amendment is trying to improve the position, but it does not satisfy me, and I want to say frankly that as far as this principle of infringing on the sovereignty of Parliament is concerned, no true democrat can tolerate any such thing. I am, therefore, very sorry that the Opposition have made this concession on this principle which is of vital importance to the democratic system of government and the parliamentary system of government. I leave it at that. I am not at all satisfied with this clause as it stands, nor am I satisfied with the amendments moved by the hon. member for Constantia (Mr. Waterson).

Amendment in line 11, put and the Committee divided:

AYES—46: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Bronkhorst, H. J.; Butcher, R. R.; Cope, J. P.; de Beer, Z. J.; de Kock, H. C.; Durrant, R. B.; Eglin, C. W.; Fisher, E. L.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore, P. A.; Oldfield. G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van der Byl, P.; van Ryneveld, C. B.; Waterson, S. F.; Williams, T. O.

Tellers: N. G. Eaton and A. Hopewell.

NOES—79: Badenhorst, F. H.; Bekker. G. F. H.; Bekker, M. J. H.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; N.; Dönges, T. E.; du Pisanie, J.; du Plessis, H. R. H.; du Plessis, P. W.; Faurie, W. H.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; 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.; Scholtz, D. J.; Serfontein, J. J.; Smit, H. H.; Steyn, F. S.; Steyn, J. H.; Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Wath, J. G. H.; van Eeden, F. J.; van Nierop, P. J.; van Staden, J. W.; 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.; Wentzel, J. J.

Tellers: J. J. Fouché and J. von S. von Moltke.

Amendment accordingly negatived.

Question put: That the words “in his opinion” in line 15, proposed to be omitted, stand part of the clause.

Upon which the Committee divided:

AYES—80: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, M. J. H.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Dönges, T. E.; du Pisanie, J.; du Plessis, H. R. H.; du Plessis, P. W.; Faurie, W. H.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; 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.; Scholtz, D. J.; Serfontein, J. J.; Smit, H. H.; Steyn, F. S.; Steyn, J. H.; Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Nierop, P. J.; van Staden, J. W.; 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.; Wentzel, J. J.

Tellers: J. J. Fouché and J. von S. von Moltke.

NOES—48: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Bronkhorst, H. J.; Butcher, R. R.; Cope, J. P.; de Beer, Z. J.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Eglin, C. W.; Fisher, E. L.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; le Roux, G. S. P.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van der Byl, P.; van Ryneveld, C. B.; Waterson, S. F.; Williams, T. O.

Tellers: N. G. Eaton and A. Hopewell.

Question accordingly affirmed and the amendment negatived.

Clause, as printed, put and the Committee divided:

AYES—80: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, M. J. H.; Botha, M. C.; Botha, P. W.; Botha. S. P.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N., Dönges, T. E.; du Pisanie, J.; du Plessis, H. R. H.; du Plessis, P. W.; Faurie, W. H.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; 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.; Scholtz, D. J.; Serfontein, J. J.; Smit, H. H.; Steyn, F. S.; Steyn, J. H.; Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Nierop, P. J.; van Staden, J. W.; 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.; Wentzel, J. J.

Tellers: J. J. Fouché and J. von S. von Moltke.

NOES—48: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Bronkhorst, H. J.; Butcher, R. R.; Cope, J. P.; de Beer, Z. J.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Eglin, C. W.; Fisher, E. L.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; le Roux, G. S. P.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van der Byl, P.; van Ryneveld, C. B.; Waterson, S. F.; Williams, T. O.

Tellers: N. G. Eaton and A. Hopewell.

Clause, as printed, accordingly agreed to.

I move the amendment which stands in my name, Sir. There are actually two amendment but that has not been clearly shown on the Order Paper. There are, however, two separate amendments. The first of these amendments is “To omit all the words after ‘the’ in line 24 to the end of the clause and to substitute ‘commencement of the next ensuing ordinary session of Parliament’”. Since the rape of Parliament which took place this morning, this amendment is really of no effect at all.

Order! The hon. member should withdraw the word “rape” in relation to Parliament.

I withdraw that, Mr. Chairman. The rights, the inviolable rights of Parliament from a political point of view were assaulted, and criminally assaulted this morning, and as a result of that, this amendment has no value and will, in fact, be inadmissible. I will, therefore, not move that. My second amendment reads as follows—

To add the following sub-section at the end of the clause:

This, Sir, is an attempt to regain for Parliament some of the rights which were taken away from it this morning. The Bill, which we have before us, provides that these proclamations, if any, shall be laid upon the Table within 14 days of Parliament meeting. That offers, theoretically at least, an opportunity for the matters dealt with therein to be discussed, but as everyone knows, in practice it means nothing. We want to see that any action taken by the Government in terms of this Act when Parliament is not sitting, shall be brought to the notice of Parliament so that Parliament shall have an opportunity of discussing and debating what the Government has done during the recess specifically by way of resolution. I may say, Sir, that this amendment has been taken from an Act which was passed by Parliament this Session and handled by the hon. Deputy Minister of the Interior dealing with the preservation of Coloured areas. On that Bill we made similar representations to the hon. Deputy Minister who accepted the reasonableness of our proposals by accepting the amendment. I hope the hon. Minister for External Affairs is going to be as reasonable as his junior colleague was on that occasion. What we want to see is that any action taken by this Government in terms of this Bill during the recess, shall be specifically brought to the notice of Parliament within a reasonable time after Parliament meets, and that Parliament should have the opportunity of discussing and debating the question, and of hearing from the responsible Minister exactly what was done, and why it was done, before Parliament places its seal of approval on the action taken. Just as my amendment this morning, so I believe that this amendment is also a perfectly reasonable and logical one which anyone, who places any value at all on the authority of Parliament, will have no hesitation in accepting, and I hope the hon. Minister will give the House a lead by accepting it himself.

Mr. Chairman, in a country where, from to-day …

Start another revolution!

… all public gatherings have just been banned by a panic-stricken Government, I think this House should refuse to give any further dictatorial rights to our Executive Government. This latest action just serves to show what arbitrary use they make of the Executive powers they now possess. They do not hesitate to silence the protesting voice of South Africa, any more than they would close off the criticism of Parliament itself. While we inaugurate a “glorious” republic, we must remain silent while police are alerted, the Army called up and citizens arrested without trial. Now this Minister wants us to agree that Executive administrative action should replace the enactments of Parliament. Members are talking over there about revolution and preparing for civil war. I ask them, are not all these happenings signs of the existence of a police State in South Africa? If members opposite, who claim to be jealous of the rights of Parliament and of its sovereignty, do not protest at all this, then I say that they have no conception of the way a democracy should work. They are prepared to surrender the hard-earned rights of Parliament and most foolishly and carelessly rest them in the Executive to the peril of our country. All that we ask for, and it is little enough, has been rejected. All we demand is that Parliament should manage its own affairs; that the chosen representatives of the people should, in fact, govern. What this Bill seeks to do, is to snatch away that right of governing the country, that right of legislating for South Africa, that right of controlling the actions of the Executive who are inferior and should be subordinate to the Parliament of this sovereign country. Parliamentary rights are being unnecessarily removed from this Legislature and handed over willy-nilly, without control or safeguard, to irresponsible Ministers who do not hesitate to shelter behind the screen of public servants’ advice. Surely, the reasonable thing to do, Sir, is that, when the Minister feels he is compelled to change a law, or to modify a law, or to vary a law by virtue or vice of powers given to him all too freely by a sycophantic Parliament, the reasonable and proper thing would be to ensure that there could never be any misuse of these powers. I do not say the Minister will misuse his powers but if he does he should be answerable to the Parliament which abrogated some of its sovereignty by granting him vast delegated legislative power. As the Bill now stands, the changes in the laws made by the Minister will be brought to the attention of Parliament as an accomplished and unalterable fact by being laid upon the Table of the House within 14 days after Parliament has assembled, if not already in session. How do we object to what the Minister has done? How can we change what he has proclaimed? How can we repair what he might have unwisely and despotically decreed? There is no way. All we can do is to make useless post-mortem protests against the irreparable harm he may have caused. That is not parliamentary democracy. All one can do is to try to choose a suitable opportunity to complain, and you can be quite certain that the Government will not grant us much opportunity to do so. We could criticize when the Minister’s Vote is under discussion; or by way of question to the Minister, which is useless as a corrective; or by seeking to get time from the House by raising the matter as one of urgent public importance. All we can do is to use these ineffectual methods of parliamentary procedure. We are governed by a party which has no respect for that procedure. We have tried to move amendments during the passage of this Bill to ensure that normal democratic parliamentary methods would make it automatic that the Minister’s actions should be considered by the House; to ensure that no ministerial decrees issued either in Pretoria or in Marks Buildings should become law until, by positive action, this House has approved of them. Nobody who claims to have any respect for the sovereignty of Parliament could possibly grant the Minister these powers or should vote against the logical and reasonable amendments suggested by the hon. member for Constantia.

Order! Did the hon. member refer to Parliament as being sycophantic?

I referred to members of the House who conferred powers like this on the Minister as being sycophantic.

The hon. member must withdraw it.

Do you understand the meaning of the word, Sir? All it means is that they are only too willing to grant powers … [Interjections.] … which are too wide to the Executive.

On a point of order, the hon. member spoke about a sycophantic Parliament.

The hon. member must withdraw those words.

I withdraw the words and substitute therefor “a Parliament which is all too willing to give all too wide powers to the Minister”.

I had hoped that the Minister would rise and accept this amendment. Not having done so it is imperative … [Interjections.]

Order!

Once this Bill is placed on the Statute Book it will enable the Government to shelve and not necessarily to solve the problems which are arising from the action of the Prime Minister in taking South Africa out of the Commonwealth. It is because of that state of affairs that it becomes all the more imperative that Parliament should play its part, not only in examining every successive step which should be taken by the Government in terms of this Bill, but also in questioning any sins of omission on the part of the Government in not meeting the problems that lie ahead. When I talk about sins of omission, I am not directing my remarks entirely at the present Minister, because obviously action under this Bill will have to be taken by a variety of Ministers, by whichever Department happens to become involved. But I say it is essential in those circumstances that Parliament should be able to play its proper part. The amendment moved by the hon. member tor Constantia is directed at making it possible for Parliament to play its Proper part. The only way of ensuring that is to place limitations on the present invasion by the Executive into the sphere of Parliament by imposing safeguards in the legislation itself. In the present case, of course, the added virtue of the proposed safeguard is that it will enable administration to go on without hindrance. Moreover, everything that is done by the Executive by way of proclamation in terms of Clause 1 will have the force of law and it will continue to have the force of law until normal legislative steps can be taken to set the matter right. Sir, a safeguard of this nature is all the more imperative in this case because no one, not the Minister nor any of the Departments concerned, knows with any degree of certainty what existing laws there are that may have to be dealt with in terms of this Bill, which may have to be suspended or amended; nor does anyone know what final action may have to be taken. So here we are dealing with a case where Parliament is not only being asked to legislate blindly but it is being asked to do so by people who are themselves blindfolded. The Minister indicated that that is the position. The hon. member for Constantia has pointed out that already during this current Session a Bill, vesting somewhat similar arbitrary powers in the Executive, was amended suitably and that this amendment is patterned on that particular bit of legislation. The legislation which to-day finds itself on the Statute Book is Act 31 of 1961, the Preservation of Coloured Areas Act, and it stands to the credit of the Deputy Minister of the Interior who handled the matter that the safeguards we asked for then and which are now being asked for again stand enshrined in Section 14 of that Act. That also was an instance where Parliament was being asked to legislate blindly … [Interjections.]

On a point of order, can we have some order.

Order!

The Deputy Minister quite frankly admitted in that case that he could not give examples of the legislation which would be involved. He called it a host of laws but he could not give any information about it. But he did see the position and he accepted that under those circumstances Parliament should retain its control over legislation, both legislation which it had passed earlier and legislation which was about to be passed, and he accepted that the principle of parliamentary control should be enshrined in the Bill itself. That stands to his credit. I think everyone will agree that this is a far more important measure than the one I have referred to. This Bill will have far wider consequences than that one. I can only urge, therefore, that he Minister will act as reasonably in this case as did the Deputy Minister in the previous case. I trust, therefore, that the Minister will accept the amendment.

When I came to the House this morning, I did so with the intention at a later stage to move an amendment which would have read that: “Every such proclamation shall cease to have the force of law 30 days after it has been so laid on the Tables of the two Houses, unless before that date it has been approved by resolution of the Senate and of the House of Assembly.” After the remarks of the hon. member for Constantia this after-noon, in which he accused the Government, and me particularly, of having flinched; or words to that effect, the rights of members of this House, and particularly after the remarks of the hon. member for Wynberg (Mr. Russell), I have no intention of moving that amendment. [Interjections.]

Order!

Sir, this accusation comes strangely from two members of the Opposition, the hon. members for Green Point and Constantia, who were members of the previous government, which rode roughshod over the rights of Parliament. At that time the hon. member for Wynberg was obliged on more than one occasion to protest against those actions. I say it comes strangely from these two members now to show this concern about the rights of this House!

The powers envisaged in this Bill are entirely contingent upon certain things happening, particularly hostile action which might be taken towards South Africa by certain states which have shown their hostility to us on more than one occasion. On the other hand, it may not happen. Therefore the likelihood of these powers being employed is entirely contingent on what these other states may do. This morning the whole debate was concentrated upon an attack upon myself, and an attack on the law adviser, which I cannot too strongly deprecate. It was said that he had given me bad advice. It is obvious that it is no good trying to get members of the Opposition to see reason. They are using this Bill purely as a means of attacking the Government firstly because of its decision to establish a republic, and secondly, because of its withdrawal from the Commonwealth. It is no good hon. members trying to deny it, because three-quarters of the speech of the hon. member for Constantia was devoted to it yesterday. It is no good trying to make them see reason. Having regard to their own record in the past, they are the last people to speak about the rights of Parliament!

I do not wish to discuss the details of the clause but I rise to make an appeal to the Minister. It is quite clear that the Minister has been thinking on the same lines as the hon. member for Constantia. I think that when the Minister uses this method of introducing the Bill and forcing this clause through he is acting most unreasonably. If the Minister will move his amendment or accept the amendment of the hon. member for Constantia we can get on with the Bill. I make this appeal to expedite the business and maintain the dignity of the House.

To me it seems an ominous coincidence that we are having to consider this particular type of legislation this afternoon after the promulgation this morning of the ban on meetings throughout the Union seeing that we are here as it were having to fight with our backs against the wall for the rights of Parliament. But when we listened to the Minister just now, we could hardly believe our ears. Here one of the most senior Ministers in the Cabinet has told the world that he considered it necessary that this Bill should be amended to ensure that Parliament would in fact exercise supervision over actions taken in its name. Until this morning the Minister apparently believed that the legislation should take this form and that Parliament should have the right to approve of or to reject what has been done, even if it could only do so after such proclamations had been laid upon the Table. Even if such a power were to have retrospective effect, the Minister still thought this morning that Parliament should have that right. But now because certain members have said certain things which have offended the Minister, he does not want to move his amendment. Can anyone be more irresponsible than that? I cannot agree with everything the Minister says about what hon. members have said here. I do not think they were as offensive as the Minister says, but even if that were so no matter what the entire Opposition has done, is it not the responsibility of the Minister to ensure that the correct legislation is placed on the Statute Book? It seems to me as though the Minister wants to make the country suffer because a few members of the House have annoyed him. What else does it mean? If the Minister still thought this morning that his amendment which is in essence the same as that of the hon. member for Constantia, was the correct amendment, what has happened to South Africa and to world conditions to change the position? After all nothing can have happened. Is it merely because hon. members have annoyed the Minister? Is that the reason why South Africa’s legislation should, in his own opinion, be incorrect? We would in any case have advocated this amendment strongly, but now we know in addition that the Minister himself thinks that legislation of this nature should contain a provision such as that proposed by the hon. member for Constantia, and that is of course so. When action is taken on behalf of Parliament there must be a safeguard. Of course this is the right type of safeguard. If I remember correctly, the Minister himself, after saying what could be done in terms of this legislation, proposed that after a Minister or the Government had acted on a certain number of occasions, one could introduce legislation before the end of the Session to validate what they had done. In essence that is the same proposal as is being made here, and surely no Parliament can be expected, if that is the position, if the responsible Minister admits twice in the same day that such a provision is necessary, to adopt a different type of legislation for no other reason except that certain members have said certain things which do not please the Minister. I now support the amendment even more strongly than before.

If, as the Minister suggests, he had intended to move an amendment but was precluded from doing so because he was annoyed at the criticism he got, then one is somewhat surprised to find that a Deputy Minister did not seem to be similarly perturbed, because we actually had a statute which one might read to the Minister to enable him to appreciate how similar the circumstances were and how much more responsibly the Deputy Minister acted on a previous occasion. In the statute to which I will refer in a moment, a clause appeared which provided that the Governor-General could by proclamation in the Gazette repeal in part or whole any law or provision thereof which applied to an incorporated area and which in the opinion of the Governor-General is in conflict with the provisions of this Act. A great deal of discussion took place in regard to that provision, but nevertheless the Deputy Minister accepted an amendment which was incorporated in the Bill.

That point has been made already.

I just wanted to draw the attention of the Minister to the exact similarity of the wording. It reads as follows: “Every such proclamation shall cease to have the force of law 30 days after it has been laid on the Table of both Houses of Parliament, unless before that date it has been approved by Act of Parliament.” Attention has been drawn to the amazement of this side of the House and I think the whole of the country, as I think will appear in the next day or two, at the attitude of the Minister who knows that it is correct to have this amendment and that it complies with the procedure adopted in the past by his own colleagues, and yet in a fit of pique which reminds one more of the hon. member for Vanderbijlpark than of anyone else in the House, he refuses to do what he knows is his duty.

That point has been made, too.

Then I conclude by merely saying that it could be made much more often than we have heard so far.

In view of the appeal of the hon. member for Kensington (Mr. Moore), I am prepared to move this amendment, but I must confess that my position has been made very difficult. It is not a question of remarks having been made which offend me personally. The charge was made that this Government, of which I am a member, was depriving this House of its rights.

We are not dealing here with ordinary legislation. Hon. members may say that when they themselves passed this sort of legislation there was a war on. Sir, there is again a war on. A cold war is being waged against South Africa, and it may be necessary to take certain steps. That is the reason for the provision in this Bill, viz. to take certain steps if necessary. Hon. members know what is going on. They know what happened at the Commonwealth Conference and also what happened recently. I do not want to mention names of Commonwealth countries, and that is why I gave the example of Senegal this morning because it is not a Commonwealth country. But I have information which hon. members do not have, as regards certain plans and intentions on the part of countries, some of which are Commonwealth countries. I would be failing in my duty towards South Africa, in view of the great harm which could be done by those actions, if we did not take these precautions. That is the purpose of this clause in the Bill. I assure the House that I would be the last one to derogate from the rights of this House, of which I am jealous. I told the House I looked at these provisions in the Bill with great care, and for that reason I consulted with the Law Advisers. I am not likely to take away rights from this House unless it is necessary in the interests of South Africa, but in view of the cold war waged against South Africa it is necessary that we should be armed against that sort of thing. In those circumstances I move—

To add the following sub-section at the end of the clause:

The difference between my amendment and that moved by the hon. member for Constantia is that it provides that unless before a specified date the proclamation has been approved by Act of Parliament. A resolution of both Houses has the same effect, and I prefer to have it that way. I hope this amendment will be accepted. It provides what members consider to be the necessary protection of Parliament.

In view of the proposal now made by the hon. the Minister, I am prepared to withdraw my amendment, which has very much the same effect. There is only one point I would like to suggest to the Minister and it is this: As there may be actual amendments in the proclamations, would it not be desirable that these amendments should, from a parliamentary point of view, be embodied in an amending Bill so that the Act can be amended in terms of the amending Bill?

You mean this Act?

No, not this Act. The hon. the Minister may amend an existing Act in terms of his powers under this Bill. His suggestion is that the proclamation containing that amendment should be laid on the Table of the House and approved by resolution of Parliament within 30 days. In some cases that may be perfectly effective, but in many cases it may well be that the amendments are substantive amendments which are permanent, and should therefore from the law point of view be enshrined, if possible, in an amending Bill of this House, which is the usual way to amend an Act. I wonder therefore whether it would not be possible for the Minister to provide in his amendment: “Shall cease to have the force of law 30 days after it has been laid on the Table, unless before that date it has been approved by resolutions or by Acts of Parliament.” That leaves it open to the Government to have a resolution put through this House, or if it is convenient and suitable to do so, then instead of having a resolution, simply to bring in an amending Bill which has exactly the same effect but from the parliamentary point of view would be much more satisfactory. I just wondered whether the Minister could not add to his amendment as he has it now the words “or by Acts of Parliament”. That gives the Minister an option. In other words, it may save time because he may still have to bring in an amending Bill. But if he has the option to bring in an amending Bill embodying what he has done in his proclamation, that will cut out the necessity of having another debate on the resolution, would it not?

With leave of the Committee, the amendment proposed by Mr. Waterson was withdrawn.

This really amounts to the original amendment of the hon. member, with the addition of the words “by resolution of the Senate and the House of Assembly”. I must confess that I do not quite follow his argument in connection with possible amendments, and I suggest that we leave it this way. I would like to consult with the legal adviser to find out exactly what the effect of the hon. member’s suggestion is. I suggest therefore that it be adopted in this form and then I can find out before the Bill goes to the Other Place exactly what the position is.

Amendment proposed by the Minister of External Affairs, put and agreed to.

Clause, as amended, put and agreed to.

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

House Resumed:

Bill reported with an amendment.

I have been informed by the Minister in charge of the Senate that the Senate would be rising on Wednesday. Time is of the essence in this case and I should be very glad if this amendment can be considered immediately, otherwise we are going to have trouble in the Other Place.

Amendment in Clause 2 put and agreed to and the Bill, as amended, adopted.

Bill to be read a third time on 22 May.

I move—

Last year a Bill amending the Water Act, 1956, was introduced, but in view of the fact that this happened towards the end of the session when Parliament was very busy, the measure was withdrawn after it became clear that there would not be sufficient time for it to be passed.

In view of the fact that this time an explanatory memorandum in regard to the Bill has been tabled, in which every clause is explained, I do not intend devoting any further time now to explaining every clause of the Bill, but I would rather confine myself to certain aspects in regard to which there was criticism last year. Some of that criticism falls away in the light of the explanations in the memorandum, but I would like to give a little more clarity in regard to other points.

I said last year that the Bill did not deviate from the original principles of the Water Act, except in so far as the one clause is concerned which provides that the Minister can submit evidence to a Water Court without being a party to the litigation, and I now want to repeat that statement in spite of the criticism it evoked on that occasion.

Let me state clearly that no provision in this Bill is intended to cover the circumstances of any specific case, except possibly in so far as Clause 13 (b) is concerned, where it is now proposed to repeal the provisions of the Bospoort and Buffelspoort Acts, where the relevant water years are specified. Here, however, I want to emphasize that this is being done at the express request of the irrigation communities concerned, in their interest and not in the interest of the Department. The farmers under those schemes allege that a water year which runs from April to March is not practicable with their type of agriculture. They want the water year to run from October to September in the following year and I would like to comply with this request of theirs. To tell the truth, it was the intention in 1956 to word it that way in Section 63 (12) of the Water Act, but according to the explanation given by the experts it would now appear that the general provisions of Section 63 (12), as they read at present, do not govern the express provisions of the Bospoort and Buffelspoort Acts.

Although, therefore, no special cases are covered by this Bill, I will concede that two of the clauses emanate from difficulties which arose in the past in connection with special cases. It is not the intention now to try to justify our action in the past, but rather to make provision for similar cases in future. Here I refer to Clauses 11 (b) and 20. It is clear that Clause 11 (b) simply tries to remedy a defect in Section 60 (6) of the principle Act. What is wanted is the power to have access to or the right of traversing any land, except land which has already been expropriated, in order to take possession of expropriated land or to institute investigations in connection with a further offer of compensation if the compensation offered for the land which has already been expropriated has not been accepted for some reason. It sometimes happens that compensation offered is not accepted by the owner and then perhaps another investigation has to be instituted or an inspection in loco has to be held. And the owner can then refuse to allow an official of the Department who is authorized to hold the inspection to cross over other land of his in order to go and inspect the expropriated land which is in dispute. In the case of Clause 20 difficulty was also experienced when someone adopted the standpoint that he would allow an official of the Department, who was properly authorized in terms of Section 166 of the principle Act, to go on to a particular bit of land of his, but not to go over another portion of his land in order to get to the land concerned. I want to give an example here. It is the policy of the Department, where we build irrigation board works or State works, not only to expropriate the terrain where the dam wall will be and the land which will be submerged under certain circumstances, but particularly in the vicinity of the dam wall to expropriate a few more morgen of land. In order to get to that land one perhaps has to make use of a road passing over other land belonging to the owner, which has not been expropriated. It is perhaps a road which was built during the course of the construction of the scheme and now, after it has been completed, the owner says no, I will not allow anybody here, not even an official of the Department, much less a member of the public who wants to go and see the dam with the authority of the Department. One just cannot get to the dam without traversing somebody else’s land. Now such an attitude really seems a little ridiculous, but on the advice of the law advisers it is considered necessary to improve the wording of Section 166 in order to provide for any contingency, so that officials will be enabled to perform their statutory duties unhindered.

Last year objection was raised to the Minister being enabled to submit evidence to a Water Court without being a party to the litigation. The objector pointed out that Water Court cases cost a lot of money and that somebody could suffer great loss if he were to lose a case because of evidence made available by the Minister, and that such a person probably would never have gone to court if the Minister’s evidence had been available to him beforehand. It was requested that the Minister should previously make his evidence available to both parties concerned in the litigation. I have no objection to this request and I shall instruct the Director of Water Affairs to make such arrangements administratively. It is not necessary to make provision for it in the Bill. I also want to make it clear that the Department is not really empowered, if either of the two parties to the litigation wants information which is available to the Department, to refuse to give it to them. But here we are dealing mainly with information in cases—it does not apply to all cases—where the Department considers that it has information available and that the interests of the State as such may be affected and where the Department feels that it wants to make such information available to the court. If the Department is of the opinion that it is essential to bring certain information to the notice of the court, we have no objection to such information being made available to the litigating parties before they go to court, because as soon as they appear in court that information will come to their knowledge and therefore they might as well have it before that time. I think that this disposes of one of the most serious objections raised last year.

Objection was also raised to the inclusion of non-riparian land in an area which is proclaimed as a State water-controlled area. Provision for the use of the water of a public stream on non-riparian land is, however, nothing new in our water laws. The old irrigation Act of 1912 contained similar provisions, and in terms of the Water Act it is also within the power of the Water Court to allow this. There is no reason why it should not also be allowed in a straight water-controlled area. The reasons why this has always been allowed are the following: (1) The circumstances are sometimes such that a river contains more water than can be used beneficially on its riparian land and therefore some of the water is wasted or must necessarily flow uselessly away to the sea, just because it is not legally possible to use that water on non-riparian land. (2) It may be in the public interest to use the water of a river on non-riparian land for primary purposes. (3) Sometimes non-riparian land which is within economic reach of a river is more suitable for agricultural purposes than the riparian land itself. In such cases the owners concerned often take steps themselves to irrigate the non-riparian land out of the river by acquiring riparian land and then obtaining the necessary authorization to use the water to which they are entitled in respect of their riparian properties on the non-riparian land. May I point out that nobody can be harmed by this provision because of the fact that existing rights which are being beneficially exercised on the date of the proclamation of a State water-controlled area are properly protected in terms of Section 62.

That brings me to the end of the Bill, but I would like to add something in regard to the explanatory memorandum. I must explain that, after the memorandum was printed, it was decided to delete Clauses 2 and 4 (a) of the Bill in the form in which they had been drafted at that stage. In the Committee Stage I intend deleting Clause 2 of the Bill. Clause 2 amends Section 3 of the principal Act. The deletion of Clause 2 therefore means that Section 3 of the principal Act will now remain unchanged, and no amendment of it is being envisaged. Clause 4 of the Bill, as introduced, therefore consists of only one paragraph, namely the amendment of Section 11 (2) (a) of the principal Act and the paragraph in the memorandum dealing with the amendment of Section 11 (1) (a) should therefore be ignored.

Before I conclude I consider it necessary to announce at this stage that I intend in the Committee Stage moving an amendment to Clause 12 (c), namely in respect of the amendment of Section 62 (2) of the principal Act. I have come to this decision after mature consideration and consultation, with reference to representations made to me and to the Department after the Bill was published in the Government Gazette. In order to put the matter in the correct light during the second reading of the Bill, I should like to explain briefly what the proposed amendment comprises and why it is being done. I now come to the nature of the amendment. What is envisaged is a measure to provide that, after the Minister has decided on the amount of water he will make available for agricultural purposes on riparian farms in the relevant State water-controlled area, and after he has divided that amount of water amongst the riparian owners concerned and has issued the relevant permits, such riparian owners must have a right of appeal to the Water Court to review the matter in connection with the area of irrigable land on which the permit is based. I may just mention that the use and the right of withdrawing water from a river, which water was used for development and was beneficially used, was fully protected in the principal Act of 1956, so much so that the principal Act provides that if such riparian owners who exercised those rights of theirs which the Minister has to take into consideration when issuing permits for withdrawal of water, are not satisfied with the actions of the Minister or with the amount of water allotted to them, they have a right of appeal to the Water Court but, peculiarly enough, the 1956 Water Act does not provide the same protection to riparian owners along the same river and inside a State water-controlled area which has not yet been developed. They are dependent on the discretionary powers of the Minister and now it is felt: Why should some farmers be privileged simply because they have already had the opportunity to develop and why should they have a right of appeal against the decision of the Minister and/or the Department, whereas the other group of farmers, who perhaps in many instances may be in the majority, do not have that right? I am now trying to remedy that. In order to remedy it, our legal advice is that those people should be given some basis on which they can go to court—not just something abstract, but the opportunity to prove that one has abuse one’s powers, and therefore the object of the right of appeal is not to restrict the discretionary powers of the Minister to control water resources in the national interest. It is accepted as the starting-point for any amendment of Section 62 that such powers are essential for orderly planning. The object of the right appeal is: (1) To make it possible for a dissatisfied riparian owner to have the matter reviewed by a court. (2) To obtain such revision in the cheapest and the easiest manner. In this regard it may be said that attempts are at present still being made to reduce the costs of litigation in the Water Court. (3) According to information given to me by legal experts it is very difficult to obtain a review by an ordinary court and therefore the interested parties want the Act to provide that appeals will be heard by the Water Court. (4) The revision referred to under (1) may be desired on any one of the following grounds: (i) Possible inequitable or arbitrary treatment by the Minister or his Department; (ii) doubtful technical data on which the permits have been issued, e.g. the extent of the irrigable land, the siting of the irrigable land inside or outside the borders which are taken into consideration in making the allotment, the quality, i.e. the irrigability or otherwise of the land, etc.

The basis for the re-wording of the provisions of Section 62 is the following: (1) The discretionary powers of the State in respect of control and the principle of dominus fluminis is accepted, honoured and entrenched. (2) The amended section will provide that a riparian owner in respect of his allotment for agricultural purposes will have the right of appeal to the Water Court for a review of the area of his irrigable land which was taken into consideration in issuing the permit. (3) In order to serve as a yardstick for the review the amended section will provide that the Minister, within a prescribed period after the proclamation of a State water-controlled area, shall by way of publication in the Government Gazette publish the basis of the water division amongst the riparian owners for agricultural purposes. The following information must be given in the notice—

1. (i) The formula according to which the permits were calculated,
2. (ii) whether the division was calculated per property or per person,
3. (iii) the degree of assurance,
4. (iv) the economic unit applied,
5. (v) the normal application of water per morgen used in the calculation,
6. (vi) details of the division of the area into zones and the allocation applicable to each zone, and all other factors on which the division is made,
7. (vii) the list of properties and the number of morgen calculated for the issue of permits.

(4) The proposed right of appeal will apply only to allotments to riparian owners. No such appeal is envisaged in respect of allotments by the Minister to non-riparian farms (e.g. Grovedale), municipalities, local authorities or industries. (5) Notice of appeal against a permit in terms of Section 62 (2) will have to be lodged within a prescribed period of three months after publication of the notice in the Government Gazette.

I think that the benefits of the proposed amendments can be summed up as follows: (1) People who cannot be satisfied by the Department can seek refuge in the Water Court, where they may get satisfaction. (2) The provision of such a right of appeal to have the matter reviewed will immediately relieve the pressure brought to bear on the Department, the Minister and the representatives in the House of Assembly by dissatisfied persons. (3) Psychologically it will have a good effect and restrict bureaucratic tendencies on the part of Government institutions. (4) Psychologically it will also have a good effect on the public which will then not be able to suspect the Minister or the Department of having acted bureaucratically.

So far for the proposed amendment of Section 62 (2) of the Water Act. A formal amendment will be submitted in the Committee Stage.

Before coming down to one or two of the major provisions of this Bill, I should like to make one or two general remarks, and I want to ask the hon. the Minister a question: This Bill so far as we on this side of the House were concerned was first made known to us when it was published in the Gazette on 13 January this year. Subsequently it was read a first time on 21 March, in this House. We raised no objection to it when it was introduced by the hon. the Minister, but I merely asked him whether there would be a White Paper and when it would be made available to us. He said that the White Paper would be available the following day.

Now I want to go back a moment or two to the original Bill which is now the Act. As I said last year, when we had a Bill before us which was similar to the present Bill before us now, we had had a Select Committee sitting for nearly three years on the measure and our work had been done in a non-party, non-political atmosphere from start to finish. Members who were there will remember how that Bill came to this House when eventually the work of the Select Committee was finished. We were all pleased that that was the position. Sir, water is life. This is not merely a question of dealing with something which is a luxury and which under certain circumstances you can do without—something you can do without and tighten your belt and go without it. Water is life and the importance of the original Act was known and noted by the Select Committee in the three years that it sat on that measure. That was the underlying basis on which we approached the Bill that was introduced last year. It is on that basis that I approach this measure to-day. From that angle, the importance of the measure, the fact that as farmers in South Africa we cannot farm without water, from that angle I want to ask the hon. the Minister: Is this Bill which we have before us to-day for the second reading under his Party Whip? Is this a Nationalist Party measure which is under the Whip, or is it a measure that will go to the free vote of the House? I hope the hon. the Minister will tell us quite frankly.

The Government has agreed and has given me consent to introduce this Bill. In other words, it can be taken as a Government measure and I cannot for the life of one see why, if it is to be regarded as a Government measure, the hon. member comes to the conclusion or wishes to come to the conclusion, that in fact it is solely a party political measure, because we have so many other measures in the sphere of agriculture which come before the House and are never regarded as party political measures, and I hope the same will apply to this one, because the contents of the Bill does not lend itself to be regarded as a party political measure.

Will you take off your Whip?

Yes, I will take the Whip off.

Thank you, Mr. Speaker. That is the assurance I want.

Are you also taking off your Whip?

I want to say that in my opinion there is no greater disservice that any political party can render South Africa than to make of the question of laws dealing with water a party measure. Therefore if the Whip is off, I am quite satisfied, and it is in that spirit that I want to deal with it. Because I want to say this: I asked the hon. the Minister as to when we would get the White Paper deliberately when he introduced the Bill on 21 March. He told us that we would have it within 24 hours. But, Sir, I had received a copy from a Government member already in the first week of February. Mr. Speaker, that is not the way to deal with matters like this. How could I get a copy of the White Paper already in the first week of February, whereas there was no White Paper available to us on this side of the House until 22 March? You see, Sir, this is a very difficult and complicated matter and it is a very difficult measure to understand particularly where laymen like myself are concerned. Even for the legal people it is difficult, and one of the matters that we have got to apply our minds to when dealing with a matter of this kind, is the intricacy of fitting in an amending Bill with an existing Act of the magnitude of the Water Act.

When did you say you got a copy of the White Paper from a Government member?

The first week of February, may be 10 February. On 22 March, it was laid on the Table. To get a White Paper and to be able weeks in advance to study the Bill with the help of a White Paper is extremely advantageous to the one who gets that White Paper. But as the hon. Minister himself said, in regard to certain provisions of the Bill, the Bill itself has been changed and it does not appear in the form in which it appeared the Gazette, the hon. the Minister referred particularly to Clause 4, and it is clear that the White Paper was a White Paper issued on the Bill as it appeared in the Gazette, not as it appeared on our tables, and Section 4 (a) is a case in point. There are other cases which I will come to presently. But the White Paper deals in a lengthy manner with sub-section (a) of Section 4, but there is no sub-section (a) in the Bill as we have got it here, but there was a sub-section (a) as the Bill appeared in the Gazette. So the White Paper was never prepared on the basis of the Bill that has come before us in Parliament. The White Paper was prepared clearly much earlier on and was prepared in terms of the Bill that was published in the Gazette. The hon. member will see that the White Paper deals with a subsection that does not appear in the Bill at all, but it was a provision that appeared in the Bill in the Gazette.

I want to deal for a moment or two with the question of the change in title. The hon. Minister last year explained to us the reason why he wanted the Director of Water Affairs to be called the secretary. Quite frankly we have no quarrel with that. We can understand the Minister’s position there. But I do not understand why the other amendments are made in Clause 2.

I have withdrawn Clause 2.

I am sorry, I was a bit late coming in. But then I want to move on to Clause 4 of the Bill which amends Section 11 of the Act. Paragraph (a) of sub-section (2) of the principal Act is amended, and this deals with the question of an allocation by the Water Court of surplus water. I am merely mentioning this in passing because I want to emphasize that here the court deals with the allocation of surplus water. I stress that point in view of further provisions that appear in the Bill hereafter.

I am leaving Clauses 5, 6 and 7 because they import a matter dealing with pollution and similar matters with which other members on this side of the House will deal. I am coming to Clause 9 of the Bill to which the hon. the Minister referred. It inserts a new 42bis into the Act. It provides that—

We are frankly worried about this sub-section. It is possible for the Minister, if in his opinion it is desirable in the public interest to lay before the court such information as he may have. Now we all know how expensive litigation in connection with Water Court cases may be, we know the trouble that is caused, and I think it can be fairly said that during the work of the Select Committee we were at pains to see whether costs could not be reduced to the lowest possible minimum and causes for actions at law eliminated. I want to suggest to the Minister, without quarrelling very much with the clause, as to whether it is not really in the public interest if his Department has got information which is related to a case going before a court, that he should let that information be known to both parties at the earliest possible moment? You see, Sir, in Water Court cases like other court cases, you can go to court on the assurance of your legal adviser that you stand a very good chance of winning—I don’t find many legal advisers these days who are prepared to be dogmatic about your winning a case. They say you have a fair chance of winning it. Afterwards, in terms of this clause, it may be that information is put before the court which suddenly knocks your case right out. But had you been put in possession of that information timeously, at that stage your legal adviser might have been in the position to say “Look, don’t proceed with this case, you have not a leg to stand on”. Here is information which comes from the Department, and it may make the issue so clear that you have no hope of winning. You see, Sir, the Department is going to be put in a very privileged position in regard to the acquisition of information, the gathering of knowledge and the registering of data over a long period of time which may be of immense value and may be decisive in a court case, and I want to suggest to the Minister in regard to this particular clause that some amendment should be made in the Committee Stage which will allow litigants to apply to the Department for information within the knowledge of the Department which is related to the case at issue, and that the Department then make it available to both sides so that there can be no favouritism in this matter. You will appreciate, Sir, that under this clause, the Government or the Department is not itself a party to it. It is not somebody suing the Department or suing the Government. The Department merely happens to have information that may be vital, and if that is the case such information should be made available to both parties so that they can see the possibilities before ever the issue goes to court, and it could be made available on the application of one party or the other but would be available to both, if it is given to one.

I stated in my second reading speech that I have got no objection whatsoever to doing that. It can be done administratively.

The White Paper also says that it can be done administratively, and if the Minister for some reason does not want to have an amendment put in the Bill, we have to be satisfied with it, but I must say that it would suit us better to have a clause in the Bill itself. If the Minister is prepared to have it done administratively then I think he should agree that there can be no harm in putting it in the Bill.

I do not know what reasons they have, but the law advisers tell me that it is not necessary to put it in. I have no objection to doing it administratively, or even putting it in the Act if I can find the correct wording that will make it binding on the Minister or the Department.

We can deal with it in the Committee Stage and I thank the Minister for his preparedness to meet us.

I come to Clause 10 of the Bill which deals with Section 59 of the principal Act, and at this stage perhaps I might say that this Bill in general, deals with water-controlled areas as established under the Act and in addition to water-controlled areas it deals with the water in public streams, natural channels as well, but public streams or natural channels in water-controlled areas.

If one looks at the whole picture of this legislation one sees the Department gradually extending by proclamation the control of the Act to more and larger water-control areas. That obviously is contemplated. It is a thread running all the way through the original Act and the draft Bill of last year and the Bill here—to build up the water-control areas. A water-control area is an area in which the Government will have the necessary control over the amount of water that can be allocated for various purposes, the maintenance of works, etc., all those things that go with the utilization of water and the purposes for which water is to be utilized. But now we find in Clause 10 an amendment of Section 59, which says—

Now comes this amendment—

Sir, this side of the House will always look, as I hope, hon. members opposite will look, with very, very great care at the inclusion of non-riparian land in measures which are going to give someone, whoever it may be, the Minister or anybody else, the right to allot water which can be used on that non-riparian land. I am coming to a later clause of the Bill presently, but I am just mentioning this in passing, and I also put this in passing that where there is a flood-control area proclaimed, it can deal with land in a scheduled Native area or in a released area, and because there is nothing to the contrary here, I take it that this non-riparian land which may be dealt with here in the water-control area can also be land in a scheduled Native area or a released area. It does not say specifically that that is the case in this clause. Section 60 makes provision for that. Section 59 does not make specific provision for land in a scheduled Native area or a released area to be dealt with by proclamation. The failure to make special provision may not invalidate the power to do so, and I want to ask the hon. the Minister in his reply to let us know whether in fact that is the position.

Dealing with Clause 11 which amends Section 60 of the principal Act, we come to the right to construct access roads and the power of the Minister or the Secretary “to authorize any person to enter upon or cross any land. When this matter was before the Select Committee, that is the first portion, the new sub-section (1) of Section 60, which as amended here says—

We felt that it was a great pity that we were going to set up another authority to expropriate land for road-making and then to make roads for the public, and so forth, when there is a road-making authority already in the Provincial Council itself which has the power to expropriate. Under the Act in Section 60 (3) (a) provision is made for the granting of compensation, and our difficulty was just this that that definition is not the same as the definition that is used for the purpose of the Provincial Administration when it is making roads. So we found ourselves in the position that the Minister and his Department will have a statutory power now to make roads, to take gravel and sand, and so on, and expropriate land. They can do that and have not to pay compensation in terms of the formula under Section 60, but in an adjacent area where the road is made by the Provincial Administration, land can be expropriated and compensation paid in terms of a different formula altogether. It seems very unwise that there should be two authorities both empowered to make roads, both empowered to expropriate land for that purpose and the one paying compensation on one formula and the other paying compensation on a different formula. They are to be public roads.

You have the same position in regard to national roads.

In the case of the national roads, it falls under the same formula because that work is done by each province acting as the agent of the National Transportation Commission. But, however that may be, if already there are two agencies that use different formulas, I think it is unwise to have a third one coming in so that neighbouring farmers for example can be paid compensation on a different formula. All the requirements to meet the situation are already enshrined in legislation.

Then sub-section (b) of Clause 11 adds a new sub-section (b) to sub-section (6) of Section 60, and it says—

Here no notice is given in regard to the taking of land and expropriation, taking gravel and so forth. Under the old provision three months’ notice was necessary. If you enter upon a man’s farm and cross a man’s farm and go through his property and that sort of thing, no notice is given whatsoever. I am sure the Minister will know as a farmer, as we all do who have got farms, the position will be that suddenly one day you find, without any notice whatever, people going over your farm, sticking in their survey pegs, and what have you, and they don’t even come along and say “kiss my hand”, or “by your leave” or anything else. They are just there. I think that is wrong. It will be an official who will have the authority to go there under those circumstances, and I suggest that notice could be sent at the same time to the landowner concerned. What we want is to build up a spirit of friendship and co-operation between the official and the farmer. We do not want to do something in such a manner that it creates hostility and difficulties, when it is so easy to just see that a method is followed which will permit the official to do the important work he has to do, but which will not give such offence. I want to suggest that the hon. the Minister should consider an amendment to this particular clause to provide for something of that nature, merely on the ground of harmony and co-operation.

Then I come to Clause 12 of the Bill, the amendment to Section 62 of the principal Act. Here we come back to what was one of our biggest causes for complaint last year. I do not know whether the Minister is prepared to give us an assurance that he will withdraw Clause 12 of this Bill too, like he has withdrawn Clause 2. I suggest that he should do so, particularly as he has taken his Whips off.

I have said that I was going to move certain amendments. Perhaps the hon. member did not follow me.

I am sorry, I have not followed that.

I shall try to let you have a copy of the amendments before the Committee Stage.

I would be very grateful. I take it that the hon. Minister’s amendment is to water down the proposals giving the Minister the virtual ownership of water in a water-control area.

It is to give such people the right to appeal to a court. They don’t have that under the old Act.

If it is not to water down that position, that is sub-section (a) of (c), which says—

if the Minister’s amendment is not going to qualify that, then I am afraid my objection must remain, because if you look at the definition of “public stream” it says—

The legal draftsman no doubt is quite satisfied, because how water flows down a channel that is dry, I do not know. I suspect it is good legal language, but I don’t know.

Under this sub-section, as it is now, the water flowing in that public stream or natural channel, because it is still a water-control area, for all practical purposes vests in the Minister. The Minister is now the owner …

Subject to appeal by injured parties.

The Act of 1956 makes the State the owner.

No, that is just what it did not do, and that is why the White Paper says, in regard to paragraph (a), that it is “improved by wording it so clearly that there can be no doubt as to its actual intention”. So there obviously was some doubt as to what its intention was in the past. Certainly, there is no doubt now. Let us look at the position. It is this: A farmer before this Bill has been passed—and whatever the doubts may be—is riparian to a public river and he has got his rights as a riparian owner to that river.

In the controlled area.

In a water-control area but he has those rights as a riparian owner, if he owns the land, before the proclamation proclaiming it as a water-controlled area. He was free to use that water as a riparian owner for primary purposes, etc., and for secondary and tertiary purposes if the water was available. Now the proclamation is issued and it becomes a water-control area. That still does not disturb his rights as far as a riparian owner is concerned. He is still riparian. But this clause, as it is put here, divests him of those rights of being a riparian owner …

No, No!

Those rights of his are really entrenched here.

Paragraph (c) (a) of Clause 12 reads—

Now, that means ownership, if it means anything. It does not say ownership—it says “use and control” but there can be no human activity in respect of water outside of the “use and control” thereof. Human beings cannot think of something that can be done which is not the “use and control” of water. Then under sub-paragraph (i) of paragraph (c) (a), until such time as that farmer gets a permit from the Minister, or has a Water Court judgment, he may not “abstract impound, store or use such water”. Now, the word “use” is being brought in here for the first time—it was not in the original Act. He cannot even use water whereof he was the owner being riparian to the river, the whole time before it was declared a Government water-control area and during the time it was a water-control area. Now, however, the Minister takes the power to say that he cannot even use water from that river without having obtained a permit from him. But the Minister goes even further than that. I doubt whether the position under paragraph (c) fa) does not take away the right also of appeal to a Water Court, because it vests the control, and the use, of water in the Minister. It does not stipulate that it is subject to an appeal to the Water Court. It seems to me that a Water Court will have no status. You are dealing with a statutory authority which is giving the Minister the sole use and control of that water. Now, with that clearly in our minds—the definition of a public stream which can be a stream in which water does not run sometimes—let us look at paragraph (a) of Clause 12. It reads as follows—

Section 62 of the original Act will after this amendment read like this—

Now, this is being changed to read—

What is the difference?

The difference is this, Sir, that a change has been made here for a specific reason. When a provision is made, as it is in the Act, for the abstraction and storing of water, etc. and you have been doing it, it may well be that a Court may hold that if you had been doing it for 12 months, that 12 months’ period will then be the period by which will be judged the amount of water you were entitled to abstract, or to store, or to use, but when the change is made, such as it is here made, then you would only be entitled to the water which you were using at the date of the proclamation.

No!

I can assure that hon. member that the interpretation which I have given now, is the correct one. Let him read the language very carefully.

No court can do anything like that.

It is not a question of a court now, but it is a question of the law. The court cannot go over the law …

But who interprets it?

The language, Sir, is abundantly clear. It will be permissible for that farmer to get a permit on account of the water that he was using, or abstracting, or impounding on the date the proclamation was issued. It says so, namely—

Now, if the date of that proclamation was on a day when that stream had no water in it, then the answer will be that that farmer cannot get a permit for any water, because there was not any water that day.

There could not have been any agricultural development if that had been the case.

We are concerned with the law, Sir. The Minister is amending the law and he is changing it and for a reason. But that is not yet the end of it. Let us go another step further and look at paragraph (ii) of paragraph (b) of Clause 12. Paragraph (i) says that such farmer can use such water lawfully, and abstract, impound and store it if he has an order of court. Under paragraph (ii) where no such order is in force—the quantity of water which, in the opinion of the Minister, would have been apportioned to that person if an apportionment could, in terms of this Act, have been made by a water court.

This, Sir, is surely going a terribly long way, because a farmer under those circumstances, if he has a water court judgment, is entitled to a permit for the amount of water which is apportioned to him by that judgment, but if he has no water court judgment, then his only recourse is to go to the Minister and ask him for a permit. The Minister then says that, “I will now decide what the water court would have granted if it could have dealt with your case”, and when one bears in mind the vast powers which are placed hereafter in the hands of the Minister, then it is perfectly clear that the Minister’s decision is absolutely final. We have had other Bills, Sir—we have had one this afternoon—where the same language is used, words such as “in the opinion of the Minister”. That puts you out of court; you cannot appeal to a water court after that. The Minister decided that that was the amount of water you would have been granted by a water court.

Subject to an appeal.

There is no question here of an appeal.

There is an appeal in terms of Section 8.

I am dealing with this Bill and there is no question of an appeal here. It is the opinion of the Minister that counts. But the Minister is still not satisfied, because Clause 12 states further in paragraph (c) (b) and (c) (b)bis that the Minister, in issuing such a permit for the use of this water, may provide a specific quantity for any special period within the area concerned, or for any purpose at any place within the area, and the permit may include such conditions as the Minister may consider necessary. Different conditions may be specified in respect of different periods of any year or in respect of different persons or classes of persons. In (b)bis it is stated that—

Not only is the power of differentiation specifically being given to the Minister here—differentiation as between one farmer and another but also between one class of farmer and another. I have been at pains to find out what is meant by “classes”, and I find in certain judgments that have been given, that different classes may mean, “different classes of White farmers it may mean, “different members of different races” or “different uses” to which the farms of farmers of one race are being put. The Minister has, therefore, complete power of differentiation. Unless a water court judgment has been obtained by a farmer, he has, under this clause, the right to say to such a farmer who has been riparian before the water control area was proclaimed, and who had his rights as such also after the proclamation, that he has to obtain a permit from the Minister. His rights are gone. The sole use and control of the water on that farm are now in the hands of the Minister. And the Minister will now say that he will give that farmer a permit for a quantity of water which in the opinion of the Minister that farmer would have been apportioned by a water court had his case been before it, and that in giving him that permit, the Minister has the right to discriminate against that farmer because he is one of a special class. And “class” may mean a type of farmer, a type of person according to race, or persons of a certain calling, etc. It is rather interesting to come back to the fact that in this section the White Paper has not dealt with what is in the Bill but only with what was in the Gazette. The words which have been added here are: “during any period of a specified quantity of water”. That means that the Minister can now discriminate. It was not in the Gazette and so the White Paper does not explain it. In the Gazette (b)bis simply read—

I think this is most unfair, because a farmer cannot undertake his farming arrangements on a day to day basis. He does not know if the Minister is going to amend the conditions of his permit, thereby amending the amount of water which is given to the farmer concerned. How can a farmer possibly run his business on a basis like that. I say that it is absolutely impossible. I can see clearly what the Minister is getting at—he is trying to take control of all the water in a water control area and make it his.

But he has it now.

I do not accept that he has. As the White Paper says, it is now being put beyond any argument and had it been in that form in the past, I am sure that it would then have been bitterly opposed. We certainly are going to oppose it to-day. We are not prepared to accept a position where in a water control area, the farmers who have had their riparian rights, should be divested of those rights. The position under certain circumstances—except where the Act can be amended—is of such a wide character and it is so hard to find what classes of people may be discriminated against, or in favour of. Had it been easier to find the classes of people, had it been easier to find the people whose rights are being taken away because they are losing the rights which they enjoy as riparian owners, this could easily have been held to be a Hybrid Bill. I want to move the following amendment—

In moving this, I want to state that I am doing so particularly on account of Clause 12 of the Bill, with all the implications and repercussions that are involved there. I have already mentioned the fact how difficult and intricate the original Act was. These amendments too are very difficult and intricate and to have clarity about them, our difficulties cannot be thrashed out across the floor of the House. I submit that in all earnestness to the hon. Minister. We have sat on the Select Committee in the past and we have had officials and legal advisers to assist us. Let us do it again with this Bill in order to see whether we can hammer out a Bill which will give the Minister that which he is seeking. If it is the majority view of the Select Committee that the Minister should have those powers, then let him have it, but I am not quite sure in my own mind what the hon. Minister is seeking. On reading this Bill, it seems that the Minister is seeking the virtual ownership of the water …

You were on that Select Committee and you did not know what you were giving away.

Why then is the Minister including this in the Bill again? I say that has not been done before, and that is why it is being put in this Bill so that it may be done now. The White Paper bears me out because it says that the language will now be clear and will show what the meaning was. I say that never was the meaning, nor was it ever the intention of the Select Committee. But if it was, and if there is no need for this section, then let us thrash that out in a Select Committee, because it cannot be dealt with across the floor of the House. It is of great importance to all people relying on water—the whole of the farming community of South Africa—of too great importance that they should be left to chance interpretation of an important measure such as this amending Bill is. They ought not to have their future left to chance like that—to a chance interpretation, but they ought to know exactly where they stand in regard to their water rights. They ought not to be required—like we had to do—to go to Counsel to explain the meaning. That is not fair to the farming community. If the Minister is desirous of acquiring certain powers, then let him explain to a Select Committee exactly what powers he wants. The hon. Minister laughs at this, but it is no laughing matter.

Without these powers the Act could not have been administered.

I want to ask again: Then why is it in this Bill and why does the White Paper say that the meaning should be made clearer? If the Minister is so certain that he had those powers, then why put it in this Bill. No, Sir, that argument will not wash.

I am passing over some of the clauses of the Bill that follow Clause 12 because they will be dealt with by other members on this side of the House. I would like to deal with Clause 17. Sir, as section 157 of the Act stands at present, provision is made for persons to get loans from the Department up to £30,000. When the amount is £30,000 or over, estimates and plans of the scheme have to be laid upon the Tables of both Houses of Parliament before such a loan can be made. Now it is being proposed that only when the amount is £100,000 or over, should the estimates and plans be laid upon the Table. We are going to ask the Minister to leave it at £30,000. Estimates for a scheme of £30,000 have to be prepared anyway, so why not lay them upon the Table of the House? This is the kind of thing, Mr. Speaker, which Parliament should, in my opinion, not do, because by increasing the amount for which estimates are required to £100,000 and over, means that a loan can now be obtained from the Department without anybody knowing who is getting the loan. The whole object of requiring that estimates and plans be laid upon the Table of the House, is to ensure that it is done in the light of day and that any person interested in it can have a look at it.

What about a scheme for £29,000?

That hon. member was a member of the Select Committee. Why did he not raise that there? Why raise it now? He sat there for three years! Why did he not think of it during those three years?

Why did you not raise it?

The hon. member knows that £30,000 was decided upon by the Select Committee. Is he now going to ask for a loan of £99,000 so as to beat the £100,000 ban?

Yes!

Ah, Mr. Speaker, now we have the answer out of the hon. member’s own mouth, and that is precisely what we are trying to put a stop to. We do not want that hon. member to get a loan of £99,000 without showing Parliament exactly what it is for. £100,000 is far too big a sum in view of the fact that the papers have to be prepared in any case for loans of £30,000. I, therefore, ask the hon. Minister to reconsider this matter. It is very bad in principle that loans should be made under those circumstances without Members of Parliament who are interested being given an opportunity to see and to investigate and to scrutinize properly and clearly all aspects of loans of that magnitude. Even to-day, Sir, with our new currency, R60,000 is a very big sum of money. I hope the Minister will agree to leave the amount as it is in the Act at present. I move the amendment.

I second.

I was sorry for the hon. member for South Coast (Mr. Mitchell) because he endeavoured to make out a case this afternoon against this amending Bill, and he has also moved an amendment asking that this matter should again be referred to a Select Committee. It is quite clear that the hon. member does not understand the position properly but I do not blame him because he and his party do not have much knowledge of matters affecting water. But it is also quite clear that he does not know what the Act provides and that he has not studied this amending Bill either. I do not think that if one is not familiar with legislation, one should refer it to a Select Committee. If one does not know what such an amending Bill provides, then I think that the obvious solution is just to leave the matter in the hands of the Minister and the party who have introduced the legislation because they probably know more about it. But one should really see what the hon. member has said here to-day in the light of what he said last year when he discussed this Bill. It is significant that last year he promised that his party would put up a big fight over this Bill, and that they would give the Minister a drubbing on numerous provisions. It was quite clear from the speech of the hon. member to-day that after a great effort he could not put forward one counterargument against any of these clauses. I shall show later that he only made one point of any substance which represented a positive contribution and in respect of which we can also support him. The hon. the Minister has already said that he will concede the hon. member that point.

Mr. Speaker, the water legislation of South Africa is probably amongst our most complicated legislation. Last year the hon. member for South Coast remarked that in this Bill the hon. the Minister was touching upon exceptional principles. Actually this Bill does not contain any exceptional principles, with the exception of the one paramount principle, namely that in the 1956 Act and in this amending legislation as well we adopted in principle a completely different type of legislation to that which we had been accustomed to for a very long time. Because, Mr. Speaker, when the water legislation of South Africa was first introduced—it was first done by way of regulation—in, i.e. the paramount principle was that of dominus fluminis, i.e. the principle that the State is the owner and has sole control over our water. It developed along those lines for many years. But as a result of the influence of British legislation after the occupation of the Cape, this principle gave way to that of riparian ownership. This principle has dominated our legislation to date. Because representations had been made from all sides, by our agricultural unions as well as by members of this House, and because it had been felt for a long time that South Africa’s main agricultural problem was her water problem, pertinent attention was given to our water legislation as a whole.

The great water problem facing South Africa is caused by the fact that she does not have sufficient water, and for that reason it was clear that the State had to obtain greater control over the utilization of water. That is why a former Minister at the time wisely appointed a commission of inquiry to investigate the whole question of South Africa’s water legislation. After this commission had submitted its report, this House saw fit to review the Commissioner’s recommendations afresh. After a Select Committee of this House had considered the matter for three years—a Select Committee of which the hon. member for South Coast was also a member—the 1956 legislation was adopted. What the Minister is doing to-day by this amending Bill is merely to streamline that legislation, to solve certain problems which have arisen since the adoption of the 1956 legislation, and to introduce the necessary amendments. Nor is it impossible or unforeseeable that in future years the hon. the Minister will return to this House with further amending legislation. There is no difference in principle involved in this amending Bill. There are technical problems which the Department has encountered. And all the hon. the Minister is doing is to adjust this legislation and to amend it in such a way that it can be more easily administered. All the problems which the Minister has mentioned show that the Department of Water Affairs in applying this legislation has encountered certain practical problems which the Minister is now trying to solve. However, as far as the 1956 Act as well as this amending Bill is concerned, there are actually two important aspects which must receive consideration and which must be mentioned, and it is quite clear that the hon. member for South Coast does not have the knowledge to discuss either of these aspects. The one is of an administrative nature and the other relates to a principle.

It is the position that the primary and the main problem which has arisen in connection with the application of the 1956 Act has flowed from the application of Section 62. This section deals with the declaration of Government water control areas in South Africa. Five such areas have been declared under Section 62. This gave the Minister control over the water within the areas concerned, control over the catchment areas and over the flow and the utilization of the water which flows or is stored in such an area. After a previous Minister had declared five such areas it became clear the administrative problems would arise in the application of the legislation. The principle underlying this section is that when the Minister declares an area as such, he undertakes either to store or to apportion all the water in the area concerned amongst the people on the banks of the river. The Minister therefore had to apportion the water in these five areas and amongst the people living along the banks of the rivers concerned. It is understandable that when the Minister has to carry out an apportionment which normally was undertaken in the past by the courts, it is possible that great problems can arise in such an apportionment and that there have been difficulties of an administrative nature. It seems to me that it is here that the knowledge of the hon. member for South Coast falls short. When the Minister takes it upon himself to apportion the water in such an area, he must do so according to a certain formula. The law requires him to apportion the water as a water court would have done if the court had been asked to do so. The Minister has tried to lay down a formula in accordance with which such water can be apportioned. He has already said what factors he takes into account when laying down the formula. The position is that in laying-down this formula the Department also first had to feel its way and hon. members can appreciate that, seeing that we in South Africa had for 100 years been accustomed to go to the court to ask the court to apportion our water and the Minister must now do so, it is possible that administrative difficulties could arise—as a matter of fact it is human to make mistakes. But from the experience which the Department had already acquired, the Department and the Minister soon learned where the potholes were which they had to avoid. Although the amending Bill does not refer to it, I want to mention that Section 68 of the 1956 Act provides that in such cases the Minister can appoint water advisory committees. The Minister and the Department soon found that if they wished to apportion the water on a sound basis which would be fair and which would comply with the requirements which such a stream had to meet and which would enjoy the general approval of the community, it meant that the co-operation of the community had to be obtained. Representations have been submitted to the Minister and the Minister has realized that he must appoint advisory committees. I can say that the Minister has already given instructions for the appointment of advisory committees in these areas and to my knowledge the names have already been submitted and a decision will be taken in the near future as to the appointment of the persons who will serve on these committees. The effect of this step will be favourable because when the Minister now takes it upon himself to declare an area and to apportion the water, this important element will play a part in future, an element which must act as a safety valve both for the Minister and the community concerned. This safety valve is represented by the advice given by the people living in such an area. For this reason it is important that in future, when such areas are declared, it must be borne in mind that advisory committees should be appointed immediately so that they can help from the outset in drawing up a formula which will satisfy all concerned. I consider that this is an administrative improvement, but as that promise has now been given I consider that we have every reason to believe that the Department with the assistance of such advisory committees will be able to avoid the potholes in the future and eliminate difficulties which have been experienced hitherto.

I can now tell the hon. member for South Coast that if he had been familiar with this legislation he would not have referred to Section 11. The hon. the Minister has not replied to this point to which the hon. member has referred, but he will probably still do so later. For the moment I want to say the following in that regard. The Department originally proposed that when control was taken over a stream in a controlled area and it was decided to use the water outside the riparian area, the Minister would have an arbitrary right to apportion such water. In other words, the Minister would have the right to decide that part of the water in any stream would be taken for use outside the riparian area. In the amending Bill as it stands at present the Department has decided to abandon this right. If water is to be taken outside a riparian area, the matter must be referred to a water court. This actually represents an improvement and a safeguarding of the position of riparian owners. It is more in line with the position which prevailed in the past, and not less. The safety valve is represented by the fact that if the Minister decides to declare an area and draws up a formula as to how the water is to be apportioned, in the same way as the water court would have done, and he brings in the following element and says: “I have declared this area and I shall try to the best of my ability to lay down a formula and to apportion the water as the water court would have done, but I am going to take part of the water outside the riparian area”, he must obtain the advice of the persons who live in the area through the medium of an advisory committee. In other words, this is a safety valve, so that this water will be apportioned not only as the water court would have done, but also in co-operation with the people living in the vicinity and an advisory committee will not lightly allocate water outside a riparian area. I therefore say that if the hon. member for South Coast had known that Section 68 contained this provision and that the Minister had already decided in the case of these five controlled areas to appoint these advisory committees, he would not have raised objections and seen the difficulties which he sees, because all the elements which are required for the implementation of this legislation, that is to say the Department plus the people who live in the area concerned as represented by the advisory committee, are present. This is the one aspect of the legislation which has caused difficulty in the administration of the legislation. It relates to the application of the legislation in the control areas, because the underlying principle in this case is the principle which we have abandoned in the past, namely that of riparian ownership, and in the place of that principle we have put State ownership or dominus fluminis, which means that the State must apportion the water.

The other weakness in the legislation, the other important aspect which is now being rectified in this amending Bill, is a matter of principle. Unfortunately the House, with the assistance also of the hon. member for South Coast overlooked this important point when the legislation was before the House. I do not say that this was done deliberately. The Water Act is one of the most complicated pieces of legislation we have and I do not blame hon. members for overlooking this important point, but it happened, and the hon. member for South Coast must also accept co-responsibility. He as a member of the Opposition should have been on his toes; then it would not have happened. What has happened? To which weakness am I referring here? I am referring to the fact that in laying down the principle of dominus fluminis in terms of which the Minister replaces the court in the apportionment of the water, no provision was made for the right of appeal by the owners of undeveloped land against his decision. The law at present provides that the rights of persons who live in such a control area and who have acquired rights by utilizing land, in other words persons who have developed land, who have ploughed and sown and who have abstracted water from such a stream and who have put it to productive use, are recognized and entrenched under this legislation. They are the persons who can now claim a permit and they have the right in the first instance to approach the Minister and to ask that water should be apportioned amongst them and that it should be given to them by members of a permit. But the House will appreciate that a very large proportion of the irrigable land along South Africa’s rivers has not yet been developed, and this large area will only be developed in the future because the country is continually developing, particularly those parts of South Africa with large rivers which in reality are only on the threshold of their development. The House will appreciate that if it is laid down in principle that the State must decide who is to get water and how much, and such a decision is based on what the persons concerned used in the past, what the position will be of those persons who have land which is not yet developed. In other words, a large part of this land is land which has not yet been developed, but is land which will definitely require water in the future. The position is that under this legislation the only rights which are entrenched are the rights of those persons who have already developed their land; in other words, those persons who have already used water and who can show development, can approach the State and ask for the right to continue with this development in future by means of a permit. But the weakness which will now be rectified, as the Minister has announced and for which we are very thankful, and for which this side of the House has asked, is that this right which actually exists in the case of persons who have developed their land, should now also be granted to persons who have land, the potential of which has not yet been developed. What the Minister is now doing is this: By the amendment he is moving, the Minister is now entrenching in the legislation the claim which these people have.

Have you seen the amendment?

I know of the amendment. The Minister has indicated that he will introduce such an amendment and he has just said in general terms what it will provide. I do not know the details, but I am satisfied with what the Minister has said. It will provide that all persons who have riparian rights will be granted a right of appeal—allow me to say this first: There is no such thing as a water right belonging to any person. Such a person had the right to use the water and in the past he did not know what his rights were until he went to the courts. But there may be many persons who will come with claims and until the court has decided, there is no question of any right. But everyone had a claim to water and, because the Minister must act in a discretionary capacity, there was no unconditional right to claim water upon which such people could rely if they had not exercised their rights. I am therefore glad that the Minister has now stated clearly that in this amendment he is going to grant these unconditional rights to claim to which these people are entitled. It means that if such a person owns a farm which he has not yet developed but which will still be developed, or if he has not yet developed part of his farm because it takes a life-time to develop a farm, will now be given an unconditional right to claim. But the further step the Minister is taking in the amendment is the following. He is saying what the formula is and this is equally important because the Act had a second weakness, namely that such a person could not go to a water court. Section 62 (8) excluded that right. It provides that a person who had rights of riparian ownership can appeal, but it does not provide for appeals by persons who did not have such rights. If they had not developed their land, they could not appeal. I shall put it again. Subsection (8) provides that persons who had riparian rights, will have the right of appeal. [Interjection.] Allow me to put it conversely to the hon. member. As I have said, the Minister now takes it upon himself to apportion the water, but it may happen that certain persons are dissatisfied with the apportionment. Such a person can now go to the water court, provided he has land which has already been developed. In other words, if one owns a farm with land which one is irrigating, one can, if one is dissatisfied with the Minister’s formula, go to the water court on appeal but one cannot do so in respect of the forest land which one still wants to develop. That was the weakness. The Minister is now not only providing that there will be a formula in accordance with which undeveloped land will be allotted water, but he is also making provision for the other weakness which existed, namely that this person who did not have a right of appeal will not be granted that right. He is doing these two things. He is giving such persons the formula and he is giving them the right of appeal.

This second important aspect of this legislation relates to a matter of principle, namely the failure to provide for a very important section of our water rights and the allocation thereof, as well as the failure to grant the right of appeal to persons who feel aggrieved. People who were riparian owners could go to the court prior to 1956, but thereafter they could not go to court, and that is being rectified. These are the two important elements in this legislation and I want to thank the Minister for having acceded to the representations which have been made not only by this side of the House but by the public, and for reacting to those representations in this fair way so that these two weaknesses will be removed. If there are further points which cause administrative problems, they can always be put right by future legislation. But the hon. member for South Coast announced last year that he was going to stage a great fight because of unfair treatment and the great weaknesses in the legislation. I have listened to the hon. member and he has not really mentioned any important points which are worth discussing, except the following one which I should like to mention. The hon. member has referred to one of the clauses, the provisions of which have the result that when the parties to a dispute have to go to court, they can be involved in great expense before the case is settled. The Minister has now made provision for that aspect by laying down that the Department which in the past was not entitled to do so, can in future make certain information available to the parties which will make them better able to settle the dispute outside the court at much lower cost. The hon. member has said that they should not even be allowed to reach the stage of a court case, but that when two parties feel that they differ, and want clarity, they should have the right at a much earlier stage to request basic information from the Department. The Minister has indicated that he has no objection and we on this side of the House also regard this as a positive contribution by the hon. member and I do not think that we shall have any objection. Accelerating the stage at which the Department must assist the parties by providing information in order to reduce the expenses still further—even the expense of consulting advocates because when one consults an advocate it already costs £100—reducing even this expenditure to a minimum can only be of assistance and I consider that this was a sound contribution by the hon. member and the Minister will probably accept his suggestion.

I am glad the hon. member for Soutpansberg (Mr. S. P. Botha) has dealt in some detail with Clause 12 of the Bill, which refers to Section 2 of the Act. In regard to this clause, the Minister has indicated that he will move an amendment in the Committee Stage, but we have not seen the amendment. It came upon us suddenly during the course of his speech and we are therefore glad that the hon. member has dealt with it more fully. Prima facie the amendment appears to be a reasonable one. We would naturally like to consider it in more detail, but it appears to be reasonable. The amendment which now appears in Clause 12, excluding the further amendment proposed by the Minister, was necessary. Subsequent to the passing of the 1956 Act, certain administrative difficulties were found; for example, where a riparian owner had a right to water but was not abstracting the water, the effect of the clause was to limit his use of water to the water he was actually using at the time, subject to his getting a permit from the Minister. Clause 12 of this Bill appears to cover that defect, but it did seem, reading through Clause 12, that there was a further omission, that the quantity allowed him should not be left entirely to the discretion of the Minister but that there should be a right of appeal. As I understand it, the effect of the further amendment which the Minister will move is two-fold: Firstly, that he will indicate the formula on which he will base the exercise of his discretion, and secondly, that after having exercised his discretion in terms of this section, it will now be subject to appeal to the water court. Is that correct?

Yes, and also the amount of water available for distribution amongst the riparian owners.

Then prima facie it appears that we can support this amendment. We should naturally like to see the details first, but I hope the Minister will give us ample opportunity to consider it. May I just ask the hon. the Minister one question. Does this right of appeal apply to both parts of Clause 12 of the Bill before us; i.e. the two places where the Minister may exercise his discretion?

Yes.

Then I will leave that clause. Then in regard to Clause 9 of the Bill which introduces the new Section 42 bis which will entitle the Minister to place evidence before the court if he is of opinion that it will be in the public interest, there too the Minister indicated that he was prepared to consider an amendment and I would like to support what the hon. member for South Coast said. Obviously it is desirable that the two parties should not be surprised during the course of litigation by evidence which was not available to them before. The Minister has indicated that he will make sure administratively that this information will be available to them. I think it is desirable that that should be written into the Act and that the duty should not be merely administrative. It is obviously desirable that the information should be given to them at the earliest possible stage. It is not only the trial itself which involves the litigants in expenditure; obviously the preparation for the trial is very expensive. In fact, once the trial begins most of your expenditure has already been incurred, and therefore it is desirable that this information should be given to the parties at the earliest possible stage. I am not sure at what stage the hon. the Minister gets notice that there will be litigation before the water court, but I assume that he gets it at the very earliest stage.

He need not get any notice at all.

I may not get any notice because I am not a party to the dispute.

I imagine that in practice, because of the inquiries which are made from his Department in relation to the facts, the hon. the Minister does get information at a very early stage. I think hon. members on both sides of the House are agreed on the principle that the parties to the litigation should have notice of that information at the earliest possible stage, and I am sure that after discussions a suitable amendment can be framed which will meet the case. Sir, the complaint has been made that the Department occasionally regards its information as confidential and that it is not always prepared to grant the information which people require. Obviously the Department is in possession of more information in regard to most areas than the ordinary litigant. May I ask the Minister whether he will try to ensure that when would-be litigants or people who want to know their water rights ask for information from the Department, the Department will give that information on every possible occasion and not regard the information as confidential. I have had complaints that the Department is inclined to say that their information is confidential, which is a great handicap to people who want to know what their rights are.

Moving on to Clause 11 of this Bill, which amends Section 60 of the Act, this clause deals with the right of expropriation of land for the purpose of making a road. The point has already been made by the hon. member for South Coast (Mr. Mitchell) that he hopes that the rights of the provincial authorities will not be interfered with and I hope that due regard will be paid to those rights. May I raise a further point which does not arise directly out of the amendment but which affects this section. It arises out of a case decided in 1958 in which Jackson was one of the parties and where the amount of compensation that was granted on expropriation was regarded by the owner of the land as insufficient. He contested the amount. He went on appeal, and one of the points at issue on appeal was whether interest was payable on the amount of compensation from the date of expropriation or only from the date on which the judgment of the Appeal Court was given. It was decided there that the interest on the compensation was only payable on the date of the Appeal Court judgment. In a case where the amount of compensation is contested and the matter goes to court and subsequently to the Appeal Court a period of two or even three years may elapse between the date of expropriation and the date on which the Appeal Court finally gives its judgment. In principle there seems to be no reason why interest should not be payable on the amount of compensation finally fixed from the date on which the expropriation took place. According to the law as it is at present such interest is not payable, and I shall be glad if the hon. the Minister could take the opportunity afforded by this amending Bill to put right what appears to be an omission in the Act at present.

Then in relation to Clause 5 of the Bill which relates to Section 12 of the Act: in terms of Section 12 of the Act any person “who desires to establish an industrial undertaking in respect of which any quantity of water is required to be used for industrial purposes …”. I then omit sub-paragraph (2): “if he desires to use for industrial purposes a quantity of public water exceeding 60,000 gallons on any one day or 50,000 gallons on an average per day during any month,” shall apply to the hon. the Minister for a permit. That section is being extended to include the expansion of any industrial undertaking which uses water. If such expansion takes place and the total quantity is more than the 50,000 gallons fixed, a permit is necessary. Will the hon. the Minister consider this proposal: If there is to be a small increase only in the consumption of water could there not be some provision to the affect that if the increase is less than a certain percentage it shall not be necessary to come to the Minister for a permit? As the Act reads at present, if there is to be expansion which requires further water and the total amount is above the figure of 50,000 gallons per day, then it will in every case be necessary to obtain a permit. I wonder whether some provision should not be made for a limited expansion in the region of say, 5,000 gallons a day, which is an increase of less than say, ten per cent on the original amount which the undertaking was allowed, without coming back to the Minister for a permit?

The Act lays down that all people who extract water from a stream, if they want to make any changes whatsoever, whether they are farmers or industrialists, have to apply to the Minister for a permit. We must have a full record of all the permits granted and the extraction rights of all consumers of waters.

And even where a small quantity is involved, is it still necessary for the Minister to have detailed information?

It is a principle that is involved here. If you allow the industrialist to extract water over and above the given quantity, what about the farmer? Then he should also be able to extract an additional quantity without applying to the Minister for approval. It is difficult administratively.

This is also a point that applies to the previous section, Section 11 of the principal Act, where too a permit has to be applied for or where the person has to go to court for an increase, and there too, if there is to be a very limited increase in the consumption of water, it would be an advantage if it was not necessary every time there was a small increase to come back to the hon. the Minister for a permit.

Lastly, in relation to Clause 17 of this Bill, which amends Section 157 of the principal Act. I want to say a word too about the proposed amendment in paragraph (b) which will introduce at the end of the proviso the following paragraph—

I understand that up till now wherever an irrigation loan has been granted in respect of a scheme the estimated cost of which was more than £30,000, a report has had to be laid on the Table of the House. Now the proposal is that it is only in relation to a scheme the total cost of which is over £100,000 that the report need be tabled. It appears to me that it would be much more desirable that the report should be laid on the Table of this House in relation to every scheme the estimated cost of which is over £30,000. Irrigation schemes can be of tremendous benefit to particular individuals, and when a loan is applied for, a great number of people may not have notice of the application. If it is an important matter—and I submit that any scheme which costs over £30,000 is an important matter …

It would be such a big scheme that everybody would know about it.

At any rate, this is public money which is to be expended, and public money of some magnitude. I think it is desirable before public money is expended that the details of any such scheme should be known. It is well known that considerable pressure may be brought to bear on the Department by individuals to obtain approval for a particular loan, and this is a safeguard which I think is most desirable. I am very much in favour of the section remaining as it is, that is to say that where the estimated cost of the scheme is more than £30,000, a report should be laid on the Table of this House. I submit that it is a most essential safeguard. The Hall Commission which sat on the proposed Water Bill makes mention of the pressures which are exerted in these applications for loans for water schemes, and I am sure that if this matter had been considered by the commission they too would have recommended that the provision should remain that where a loan is applied for in relation to any scheme, the estimated cost of which is more than £30,000, the report should be laid on the Table. Sir, there are further matters which we would like to discuss at the Committee Stage. I do not feel that all of them can be discussed during the second reading debate. At this stage, however, I wished to raise these points.

From the nature of things, the Water Act or any amendment thereof, is very technical and in the circumstances this is not a discussion where you would expect political implications or where it is necessary to raise matters of a sentimental nature. That is probably also the reason why it is evident that this discussion has attracted comparatively little interest this afternoon in spite of the fact that, in my humble opinion, water is the most important natural resource in South Africa, particularly because the major portion of our country suffers from a shortage of water and that being the position we have to see to it that our water legislation is as effective as it can possibly be. I do not intend defending this Bill. I think the Minister is more than capable enough to do that himself. I should like to analyse a few of the principles contained in this Bill and arising from those principles I should like to make a few suggestions to the hon. the Minister.

In the first place I want to express certain doubts as to Clause 4 and I should be grateful if the hon. the Minister would listen to what I have to say and if possible reply to me at a later stage. At the moment Section 11 (2) of the principal Act provides that a water court may “on the application of a person who is entitled in terms of this Act to use public water for agricultural purposes or who has acquired a right to the use of such water, authorize the applicant to use the share of such water to which he is so entitled or to the use of which he has acquired such a right or any part of such share, for agricultural, industrial or urban purposes or such other purposes as the water court may determine, either on riparian land or elsewhere. I want to emphasize the fact that Section 11 (2), as it stands at the moment, talks about public water; that the court may authorize a person who, as the owner of land, is entitled to public water, to use that water anywhere else for industrial purposes or for any other purpose. In this explanatory memorandum that has been issued to us we are told that paragraph (a) of sub-section (2) of Section 11, as it reads at the moment, “deals only with the normal flow and to enable a local authority or any person to use surplus water on non-riparian ground or for any purpose it is considered necessary to make this amendment”. I wish to say that I am not satisfied that the statement in this memorandum is absolutely correct. I read the relevant section a moment ago to show that reference is made to “public water” and “public water” is definitely not only normal flow. Public water is the water that is found in a public stream and the water that is found in a normal flow is either normal flow or surplus water or both. I feel therefore that the section as it reads at the moment already makes provision for it that the normal flow as well as the surplus water can, with the approval of the court, be diverted from riparian land and used for secondary or tertiary purposes somewhere else, on land that is not riparian to the stream. We know that “normal flow” is defined as water that can be abstracted directly on to the land without storing it; and surplus water is water that is not the normal flow. That is why I have said that you can have normal and surplus water in the same stream. The normal flow is usually determined either by the court or by the use to which it is put by the riparian owners. It may be said that it is not practically possible to determine which portion of the surplus water in a particular stream belongs to a particular owner of ground, but that is not so. In the case of Barnard and Coetzee v. de Villiers, as reported in the 1958 law reports, the court ruled that a certain piece of land was entitled to a certain amount of surplus water. It is not difficult to divide a normal flow, because if there is no allocation, the parties may go to court and the court can be asked to determine to what portion of the normal flow each one is entitled. That person uses a certain given quantity of the normal flow and the court decides that it should be diverted or taken somewhere else. In the case of surplus water the area of irrigable land is determined, and a certain amount is allocated to that irrigable surface. Let us assume that it is 30 inches per annum. The volume of that 30 inches is measured over the area of that irrigable land—say it is 100 morgen—and you find that that land is entitled to, say, 300 morgen feet of water per annum. In that case the court may rule that that amount of surplus water to which the land is entitled can be abstracted. As I see the position—and I should like the hon. the Minister to go into this—the section already provides that not only the normal flow but also the surplus water can in such a case be controlled by the court.

Everybody does not see it that way; we want to state it more clearly.

I have no objection to the hon. the Minister stating it more clearly, but he is going much further than that and in my humble opinion the hon. the Minister is infringing on the rights of a private individual with which I do not agree. As the Act is now being amended, provision is made that not only can the court rule that the public water to which the person is entitled can be abstracted—as the section is worded at the moment—but we are now providing that the court can order any quantity of water, provided it is surplus flow, to be diverted to a place other than riparian ground. I must admit that I do not believe any court will ever do such a thing because our courts are very careful not to interfere with the rights of private individuals, but the hon. the Minister presumes that in this amendment, because he says that it will be competent for a court, as far as the surplus flow is concerned, to rule that any amount may be diverted, in other words, not only that quantity to which that person is entitled as owner of the land, but any amount as determined by the court. That “any quantity” may be far in excess of the quantity to which the land concerned is entitled to get. The rules in regard to surplus flow are as follows: The normal flow is usually divided by means of leading turns or the court may allocate it, but in the case of surplus water the rule is that the highest owner may take everything if he can use it and only when his requirements have been met, he can let the rest run down to the next man and then to the following owner. If the highest owner now goes to court and he is only entitled to, say, 300 morgen feet of the surplus flow per annum, and, because he is the highest and all the water has to pass him, he applies that 1,000 morgen feet of water per annum should be diverted to a municipal area or non-riparian ground, it will mean that 1,000 morgen feet of water will first be abstracted from the flow before it reaches the next owner, and as a result, from the nature of things, the lower riparian owners must suffer under this proposed amendment. That is how I see the position. I doubt whether the court will ever infringe on to the rights of people to that extent but I do not think it is a sound principle even to presume in our legislation that it can be done.

I want to say something else arising from this idea of controlling the surplus flow. I said a moment ago that to-day no control was being exercised over the surplus flow, except of course that it may be laid down to what quantity of the surplus flow a particular owner is entitled, but otherwise there is no provision in our law whereby the surplus flow, in connection with which the Minister now wishes to give certain powers to the court as regards abstraction, can be divided, and I want to ask the hon. the Minister to consider the question of exercising better control over the surplus flow. As far as the division of the normal flow is concerned, that is done by way of agreement between the parties or as it has been allocated to the land from time to time according to circumstances, and as water rights have been acquired by owners, or the normal flow may be allocated by court. As I said a moment ago, the surplus water is abstracted from the top downwards. The highest owner takes as much water as he wants to satisfy his own requirements and he then lets it run down to the second owner who takes as much as he wants for his requirements and so it carries on. There is one proviso, however, that anyone who abstracts surplus water should not waste it; he has to use it beneficially. He is not allowed to abstract more than he can use beneficially on his land. As a result of that we find that in many parts of the country water is being wasted or used uneconomically to-day. There are many rivers in this country, particularly in the Karoo areas, that do not have a normal flow. The only flow that you find in them is when it rains heavily and there is a flood and the court has interpreted that to be purely surplus water, because according to the definition of “normal flow” it cannot be used for irrigation purposes directly without storing it. In those circumstances we find that with the financial assistance they receive from the Government people construct huge dams and reservoirs to-day and that they dam up vleis as part of soil conservation schemes and you find that during a normal rainy season the owners higher up the river store all the water and there has to be a very big flood before the lower riparian owners derive any benefit from it. I said a moment ago that this position has lead to water being wasted and being used uneconomically.

What is the solution? I want to offer a few solutions. I should like to see better control over surplus water as in the case of the normal flow. The normal flow has to be led directly on to the land and it is understandable, Sir, that as you go further down the river, more and more furrows can be constructed in the river; more and more land can be irrigated and the lower you go down the river, the higher becomes the normal flow in that river. Every drop that is not normal flow is surplus water. I think the solution is to be found in this that we should make provision, as in the case of the normal flow, that surplus water should also be allocated by a court. There may be problems and difficulties attached to that, it may be a difficult thing for the court to decide and it may also be very costly to ask the court to allocate such water. The other solution that I have to offer—and I think this is a simpler solution—is that the Minister should consider widening the definition of “normal flow The definition of “normal flow” is very limited to-day. The normal flow of a river is very small. It consists of only that portion that you can lead directly on to your land by means of furrows or otherwise, without storing it. In other words you cannot dam it; you have to lead it directly from the river, and that quantity that you can abstract from the river and lead directly on to your land constitutes the normal flow. That is the portion of the flow that can be divided. But if we widen the definition of “normal flow” it will go a long way towards making it possible for us to exercise more control over surplus water, and it will be more fair towards the land owners, particularly in the drier areas of the country. It is very difficult to suggest how “normal flow” should be defined, but I suggest that it may perhaps be possible to determine that according to the irrigable land along a river, to determine your normal flow by means of the use to which it is put—assume for instance one cusec per 10 morgen—on the irrigable land and that the normal flow in that river should be determined by the area of irrigable land along that river. If we do that I think we shall be meeting a serious defect in the water control system of this country.

A great deal has been said about the principles contained in Section 12, and I do not intend saying much about that. I would just like to refer to the remark made by the hon. member for South Coast in connection with the first amendment in Clause 12 namely “by the substitution in paragraph (b) of sub-section (1) for the words ‘has been’ of the word ‘was’ and by the addition at the end of the said paragraph of the words ‘at the date of publication of the relevant proclamation under Section 59’”. As the section reads at the moment provision is made that in a Government water control area the water rights of a person may be registered as he has exercised them from time to time before it was declared a Government water control area. In terms of the amendment which we are now effecting a definite date is laid down namely the date of publication. The hon. member for South Coast says that it may be one of the rivers which does not flow the whole year round and it may be that on that particular day the river is dry and no water can be abstracted out of it. I think that is a very theoretical argument and I do not for one moment think that the courts who have to interpret our laws, will ever give that interpretation to the section. However, the Minister can very easily solve that problem which the hon. member for South Coast foresees. He need only make it before the date of publication instead of on the date of publication, because this clause only provides for a specific day and in future a person will be entitled to the water which he has abstracted from the river prior to that date and he can have that registered. We do not want it to be stipulated that it will be the quantity that he abstracted on the specific day, but the amount which he abstracted long before that date, the greatest amount of water that he had abstracted before the specific day. It will probably be interpreted like that and that is why I think that is the solution and I think it is a good solution to make it “before the date” of publication instead of “on the date” of publication.

Clause 12, about which a great deal has been said, contains two provisions. The first deals with persons—I shall try to put it as clearly as possible, and I think we should once again deal briefly with this—who prior to the date of publication had abstracted water from the river, in other words the riparian owners who have actually exercised their rights as far as the river is concerned, and those riparian owners will in future be entitled to exercise those same rights provided those rights are recognized by the Minister. That does not mean to say that those rights will be recognized just as they are. The Minister has to lay down certain conditions which are provided for in this Bill; in other words he has to allocate that water as the court would have allocated it to a person who had exercised his water rights and he may issue a permit accordingly. The hon. member for East London (North) (Mr. van Ryneveld) asked whether on the basis of an allocation in accordance with a court prescription, there would also be a right of appeal. My reply is definitely yes. There is a right of appeal because the clause provides the following:

In other words, this clause circumscribes paragraph (b), it explains what it actually means. It simply prescribes more clearly how paragraph (b) is to be applied, and there is a right of appeal in paragraph (b) of sub-section (8) of Section 62. I think the hon. member will agree with me that in the circumstances there is indeed a right of appeal.

That is the one type of person for whom Section 62 provides. The other type of person is the one who has never previously exercised his rights, the person who did indeed own riparian land along the river but who had never previously abstracted water from that river. Because a certain amount of water is still available in that river, water which the Minister wants to allocate to the irrigators, this Bill provides that the balance of the water in the river shall vest exclusively in the Minister. I am pleased to hear that the hon. the Minister is considering making certain amendments to this, because I do not think it is a sound principle to leave that water exclusively in the hands of the Minister, irrespective of the high regard we have for his integrity in exercising his rights in that connection. Those people have certain rights to that river and if you place those rights in the hands of somebody else without the right of objection, you are looking for trouble. We usually abide by the decision of a court but we are not prepared to abide by any other decision. That is why I welcome the fact that such water, if it is available, is to be allocated by the Minister on a certain basis, as in the first case, and that there will also be a right of appeal in this case. If that is done I have no objection to Section 62 as it is now being amended.

There was another aspect of Section 62 that worried me a little and that was the fact that this second right of appeal to which I have just referred, was only in respect of riparian land. In other words, the Minister will be entitled to allocate water in respect of non-riparian land without the court being able to interfee and without the riparian owners having a right of appeal. I think there is a certain amount of justification for that, and in a moment or two I shall say something about the use of water on non-riparian land. But I think that where you are dealing with a State water control area and where there is such water available for further allocation, more water will, in those circumstances, be made available by the State and from the nature of things more water will be available to riparian ground than before and if the State does make more water available to riparian ground than before, riparian owners should really have no objection and it is not necessary for them to have a right of appeal, because the State is already giving them more rights than they had previously.

I want to say something about Clause 9, the clause which deals with the Minister’s right to give evidence in a water allocation case. This is indeed a happy day as far as I am concerned because I agree with the hon. member for South Coast. When I read this clause I immediately realized that this could create very big problems for litigants and I do not know whether the hon. the Minister has definitely made up his mind about this provision; if he has not, I should like to ask the hon. the Minister that where the Department suddenly submits evidence to the court, the litigants should also be taken into account. I as a litigant go to court and submit all the data at my disposal and have no knowledge of the information available to the Department; the Department suddenly comes to court with a mass of information which I did not have; and had I had it I would perhaps not have gone to court. Because of that information I lose the case which I would otherwise have won. Who is to pay the costs? The Department is responsible for the fact that I have lost the case. I think this explanatory memorandum makes provision for that; the explanatory memorandum presumes that in such cases that information should be made available to the litigants beforehand. But I am not quite satisfied with that. Seeing that the explanatory memorandum and the Department envisage that, it may just as well be incorporated in the law. There may be practical difficulties, but as somebody who has had a great deal to do with water problems knows that it is exceedingly difficult to obtain any information from the Department of Water Affairs. I do not blame them for wanting to keep the information that they have for their personal use. Generally speaking they are fairly stingy with their information.

Consequently I feel that provision should be made in the law that if I want to go to court in a water case. I should have the right to go to the Department of Water Affairs and to say to them: “I intend applying to court for an allocation of water from a certain river.” Is it the intention of the Department to give evidence before the court?” If that is the intention of the Department those particular facts must be made available to me at once. If that is not the intention of the Department I can carry on with my case but in that case the Department should not be allowed to submit evidence to the court at a later stage. I think if the Minister can meet us in this respect all the problems will probably be solved.

That in brief, Sir, is what I want to say. I have grave doubts about Clause 4 and I trust the Minister will consider it; I have a few objections to Clause 9 in connection with which the Minister has already promised to meet us and then I have an objection as far as Clause 12 is concerned.

In conclusion I want to say something about the use of water on non-riparian land—how that can be made easier. Clause 12 provides that the Minister, without any interference by the court may use water on non-riparian land, and I really think that the time is long overdue that we evolve a procedure whereby it will be made easier to use water on non-riparian land. You know, Sir, great development is taking place to-day, and it often happens that non-riparian land is close to a river, but because that land is non-riparian it has no right to the water in that river. Apart from that, it is understandable that as more and more land is irrigated, irrigation will be practised further and further away from the banks of the rivers. In every case where private individuals (this is where the area is not a State water control area) can bring water on to non-riparian land, they have to go to court and apply for permission to do so. At the moment I am handling an application to court in which we are asking for permission to abstract water from a particular river for, a small area of 70 morgen of non-riparian land and I am convinced that by the time the engineers have prepared their plans for submission to the court, by the time all the legal costs, the advocates, etc. have been paid, the costs of that case will amount to approximately £1,000. I think the time has arrived for us to devise some procedure whereby it will be made easier to use water on non-riparian land. On the other hand I realize that we have to continue to be careful that where water is used on non-riparian land the riparian owners further along the river do not suffer in consequence. That is why in the past the courts have always treated such applications with great circumspection. It is very difficult to suggest what should be done. I think in the first place the Minister should consider some measure whereby court procedure can be facilitated. Whenever you apply to court for permission to use water on non-riparian land, you have in the first instance to apply to the Supreme Court for substituted service because from the nature of things the documents cannot be served on all the hundreds and thousands of riparian owners along the river right down to the sea. There are two processes at the moment. You first have to apply to the Supreme Court for substituted service and thereafter you have to apply to the Water Court. [Time limit.]

When introducing this Bill, the hon. the Minister read out the amendments to Clause 12 which he said he would move in the Committee Stage. I have only just managed to get a copy of it, and I see it covers three foolscap pages and the amendments have a very wide application on the original Act. So I think the hon. the Minister ought to consider giving us an opportunity to study this amendment as we on this side of the House have not seen it, and therefore I move—

That the debate be now adjourned.

I second.