I move—

I second.

In connection with the acceptance of this proposal, I should like to make it perfectly clear that the Government has had the opportunity to note this proposal which the Select Committee submits for the consideration of this House, namely that any legislation which it may submit to the House in its final report will not be made applicable to the newspapers which are members of the Press Union. The Government would like to endorse the Select Committee’s decision with regard to this matter and give the assurance in advance that if the Select Committee excludes from this proposed legislation the aforementioned category of newspapers, namely those which are members of the Press Union, the Government will approve of it and accept it.

The Government welcomes the self-disciplinary code drawn up by the Press Union and believes that the code of conduct as published in the Press offers a means of combating the evils which the proposed legislation sought to combat. At this stage, therefore, it would probably be wrong on the part of the Government to duplicate steps which are taken to combat the same evils. It goes without saying that in taking this step the Press Union is taking very much greater responsibility on its shoulders, and this in turn brings with it greater obligations towards its readers and its supporters and towards the interests of the country and the nation, but the bona fides of the Press Union are accepted, and I should like to make use of this opportunity to wish its members every success with the application of the code of conduct which the Press Union itself has drawn up and accepted.

On behalf of this side of the House I wish to say that it is satisfactory to know that the Government has accepted the recommendations of the Select Committee as set forth in this report. Speaking for myself, I am sure that the Press Union is a responsible body. I think the Government has been wise in accepting the offer made to allow a body of that nature to apply a disciplinary code such as the one they have published. Acceptance by the Government of this report means that it will ease the burden originally placed upon the committee of this House and will now enable the committee to continue its inquiry into the further aspects of the scope of the Bill which has been referred to it.

This being an agreed measure and the rest of the business of the committee being in effect sub judice, it seems to me that this would be an appropriate time to move—

I second.

Agreed to.

Before calling upon the hon. the Minister of Transport to move the motion, I wish to remind hon. members that on the motion for the House to go into Committee on the Estimates of Additional Expenditure, as well as at later stages, the debate must be confined to the subjects contained in the Estimates and the reasons for the increase in expenditure. Discussion should not re-open the question of policy involved in the original grant.

I move—

As hon. members will note from the Second Estimates of Additional Expenditure from revenue funds, which I have already tabled, provision is being made for additional expenditure amounting to R4,333,552 which will have to be incurred during the current financial year. However, appreciable savings have been effected, so that the additional funds now being asked for will not increase the amount already voted in the Main Estimates and the First Additional Estimates for the present financial year.

The original Estimates provided for an amount of R419,396,200, the First Additional Estimates for R56,421,942, and these Additional Estimates for R4,333,552; i.e. a total amount of R480,151,694. It will be noted from the latest Estimates tabled that savings are estimated at R49,583,494, so that the total revised Estimates now amount to R430,568,200.

I want to inform the House that the salaries of Railway Commissioners have been increased from R6.000 to R6,800 per annum as from 1 April 1961. It will be noted that in the present Estimates under the head Miscellaneous Costs, against which their salaries are debited, additional funds are not being asked for because of savings which are expected to be made under this head as a whole. I intend, however, when the Finance Bill is introduced later this Session, including a paragraph which will make provision for the necessary approval to be granted by Parliament in this regard.

Hon. members will therefore be able to debate this matter during the Main Budget debate, if they so desire.

I briefly want to explain the factors which are responsible for the additional funds being asked for.

The most important item under Railways is the one under Head No. 2—Maintenance of Permanent Way and Works—which is due to increased Sunday time and overtime payments, the consolidation of cost-of-living allowances, salary concessions to clerical and related personnel, and also increased expenditure due to washaways and maintenance of the permanent way.

There is an increase of R761,984 under Head No. 4—Running Expenses—chiefly caused by increased Sunday time and overtime payments to trained staff and higher expenditure on coal and electrical power due to an increase in traffic and the increased price of coal.

I feel, Mr. Speaker, that I must come back for a moment to the amount I mentioned as being savings, because I am afraid that perhaps there may be a misconception. It is the amount of R49,583,494 which I mentioned. This may perhaps be understood to be a saving on the general running costs of the Railways. But this is mainly the savings effected on the payment of cost-of-living allowances as the result of consolidation. Originally in the Estimates provision was made for the payment of this amount as cost-of-living allowances; when consolidation took place the payment of cost-of-living allowances of course fell away. I would not like the country to be under a misapprehension that such a considerable amount was saved in other ways.

The increase of R697,042 under Head No. 5—Traffic Expenses—is also due to the improved salary scales of clerical and related personnel, additional Sunday time and overtime payments, consolidation of cost-of-living allowances, and also an increase in the cost of supplies and equipment, due to the increase in traffic.

The provision of R487,360 under Head No. 12—Subsidiary Services—is mainly due to increased repairs to road motor vehicles which have been in service for an appreciable time already.

The increase of R53,884 under Interest on Superannuation and other funds—Head No. 15—arises as the result of the increase in the Insurance Fund balance and the Elimination of Railway Crossings Fund.

The amount under Head No. 17—Miscellaneous Expenditure—represents a large number of smaller items arising from unforeseen circumstances. The first amount of R95,000 under this head is required to strengthen the Benevolent Fund in order to cover the payment of special allowances to the increased number of pensioners and the recipients of widows’ pensions.

Certain investments have been realized during the financial year and re-investment at appreciably higher rates of interest. It is true that the cost connected to this amounts to R177,548, but the transactions will in the long run be of considerable financial advantage to the Administration.

The amount of R30,248 under Bad Debts and Sundry Items represents a number of relatively minor items consisting mainly of under-charges in regard to railage.

In the Main Estimates provision has been made for a nominal amount of R12,000 in respect of the repayment of amounts retained as penalties for liquidated damages due to delayed deliveries by contractors, but the actual amount required for this is R90,000 more.

Under Head No. 24—Interest on Capital: Harbours—an amount of R76,201 is being asked for because the actual interest-bearing expenditure has amounted to a larger sum than was provided for in the original Estimates.

The increase of R208,826 under Head No. 28—Airways: Exploitation and Maintenance— was due to an increase in services with accompanying higher expenditure—mainly fuel.

An additional amount of R 100,424 is required for interest on capital, particularly as the result of increased working capital in respect of spare parts for Boeing aircraft.

The amount of R1,250 under Head No. 30 — Miscellaneous Expenditure — represents a number of smaller items, whilst the amount of R34,500 is required in respect of the S.A. Airways’ share of compensation which in terms of a pool agreement is paid by B.O.A.C. to Central African Airways for losses on regional traffic.

In regard to the Estimates of Expenditure on Capital and Betterment Works, I just want to say the following. In the Second Additional Estimates of Expenditure on Capital and Betterment Works provision is made for an amount of R2,517,000 which has to be voted to cover expenditure under various heads. It will, however, not be necessary to obtain additional loan funds to defray this expenditure, seeing that sufficient savings are available for that purpose.

Of the additional amount of R2,031,000 under Head No. 2—New Works on Open Lines—almost half is required to cover delayed debits of more than R2,000 for each work in respect of works which were expected to have been completed by the end of the previous financial years. That is in accordance with Resolution No. 6 in the Second Report of the Select Committee on Railways and Harbours, 1949.

I shall deal briefly with the most important items in the Estimates.

During the building of the railway line Ogies/Van Dyksdrif—as authorized by Construction Act No. 38 of 1946—an agreement was entered into with the mining company Transvaal Consolidated Land and Exploration Company Ltd., in terms of which the Railway Administration must compensate the company for loss of profits in respect of coal which cannot be developed as the result of the building of the railway line. Payment in terms of the agreement was to take place when the coal, during the normal working of the mine, would have been developed. This stage has already been reached and a claim for the amount of R650,000 must now be paid. A special power of attorney for payment of this amount has already been obtained from the State President.

As the result of the terrain conversion schemes necessary to provide for the quadrupling of the Natal main line between Durban and Booth, the terrain at Congella is being abandoned, and the activities shifted to the marshalling yard at Bayhead. It has, therefore, become necessary, in order to ensure the smooth flow of traffic, to provide staging roads at Churchill Road which will serve as receiving and despatch depots. This work is being carried out simultaneously with the doubling and electrification of the railway line between Alice Street and Duff’s Road. It is expected that the amount of R177,900 will be required for this purpose during the current financial year. A special power of attorney has already been received from the State President for this amount.

Further, an amount of R350.000 is required to defray betterment expenditure in respect of various relaying projects.

Of the additional amount of R182,300 provided for under Head No. 3—Rolling Stock— R109,600 is intended for the replacement of bell buffers on locomotives and coal trucks by automatic couplers. This is a safety measure, it speeds up shunting and to a large extent eliminates the high maintenance costs of the old type of couplings. The balance of R72,700 is required for delayed debits.

The additional amount of R110,200 under Heads Nos. 5 and 7 represent delayed debits in respect of works not included in the Estimates of the current year, in view of the fact that it was expected that they would be completed before 31 March 1961.

Under Head No. 8—Working Capital (Recoverable Advances)—provision is made for an amount of R150,000 advanced to the Sick Fund of the S.A.R. & H. There are indications that the working results of the Sick Fund for the current financial year will show an appreciable deficit, which is mainly due to the increased expenditure on Sick Fund services, viz. the services of doctors and specialists, hospitalization, drugs and medicine. This increase in expenditure is firstly due to the abolition of free hospitalization in the Cape Province and the Transvaal, the increased hospital tariffs and the fact that more patients were admitted; secondly, the increased expenditure on drugs and medicine is due to the fact that new and more expensive preparations were used; thirdly, the increased utilization of auxiliary services and the services of specialists; and, fourthly, because it was found necessary to increase the salaries of Railway doctors and specialists in order to keep pace with the latest developments in this sphere. A special power of attorney has been obtained from the State President for this amount.

The balance of R43,500 under Head No. 8 is required to finance the building of a private branch line for Messrs. Ingeni Quarries (Pty.) Ltd., to whom the contract for the supply of ballast to the Railways on the north coast line has been awarded. The company is not able itself to finance the work connected with the building of the branch line and the Railway Administration is advancing the necessary funds on condition that the whole amount be repaid during the term of the contract which expires in September 1964. The conditions attaching to the agreement entered into afford sufficient protection of the interests of the Administration.

When the First Additional Estimates for the year 1961-2 were passed, it was the intention that the works for which provision was made in it would be financed from loan funds and the Betterment Fund, as set out in the Third Schedule to Act No. 63 of 1961. Sufficient savings, however, have now been effected under other heads to finance those works, as also those contained in these second additional Estimates. Therefore, there is no necessity to obtain additional loan funds, and a special paragraph in that regard has been included in the Additional Railways and Harbours Appropriation Bill.

I intend introducing my Budget for the financial year 1962-3 on 7 March 1962, and in the circumstances I trust that these Additional Estimates will not take up too much of the time of the House.

I want to thank the hon. the Minister for the almost minute detail in which he has dealt with the main items of these additional expenditures. I am thankful that he was able to pass me a copy of his speech just as he started to make it; but he will realize that even with that advantage it is difficult to follow all the reasons that he has given to justify these additional demands. As is usual we will leave the detailed examination of some of the items to those members on this side who feel they would like to raise them at a later stage in Committee.

From the copy of the speech which I have here. Sir, it seems that we have before us for consideration Estimates of Additional Expenditure for some R4.3 million to be defrayed from Railway and Harbour Revenue Funds for this financial year and the sum of some R2.5 million on capital and betterment works, bringing the revised total, in that respect, to some R106.3 million. If I might go back just temporarily, Sir, to the additional expenditure from Revenue Funds, it now adds up to a total of estimated expenditure of R480 million. There are so-called savings of R49½ million and the total revised figure now is some R430.5 million. I said “so-called” savings, because very often what is given off as savings is really the result brought about by optimistic over-estimation and not really actual savings at all. It is, in fact, overprovision. We have always asked the Minister to watch those tendencies carefully. We hope he will be more careful in future than he has been on all of these previous occasions. On capital and betterment works so-called savings that are not available to meet excess expenditure, amount to some R28.5 million, leaving a total of revised estimates there of some R77.7 million. I notice in the Minister’s explanation that in the matter of the increase in the salaries of Railway Commissioners, he will regularize the increase of R800 later in the Finance Bill. We are grateful for his explanation in that regard. I notice that he did not give any explanation in respect of the gratuitous payment to one of the members of the Commission. He was significantly silent and that item will be closely examined when we go into Committee.

I may say, Sir, that it is not easy for us, as “shareholders” in the Railways (as we have been described by the Minister), to have more than a vague idea of what the financial position of the Railways is, as of now. One of our functions, and a function which we are trying with difficulty to fulfil in this debate, is to exercise a financial check on the Government and on the Railway Administration. We find it extremely difficult to do so when the latest figures that we have available are those for October. And these are published in the South African Railway News for December which in turn was only made available to us on 6 February. It makes it extremely difficult, Sir. I did address a question to the hon. the Minister earlier this Session asking him to give us more up-to-date figures. He replied and said that he would make more recent figures known in the main Budget on 7 March. I had, of course, no alternative but to accept that unsatisfactory state of affairs, As I say, the Minister must be aware— and I hope his action is not deliberate—that this makes it exceedingly difficult for us to criticize his financial expenditure in a way that we would like to do. At on time, as the hon. the Minister knows, we used to get weekly statements of revenue earnings for all services but those have been discontinued. They are now published in the Gazette but the Gazette appears rather late for our purposes. The Minister discontinued this service to us because, as he claimed, they only gave one side of the picture and therefore gave a false and erroneous impression. Yet the Minister himself must get weekly figures. He must get a profit and loss account every week. So I beg of him to try to see if he cannot supply us with up-to-date information so that we can discuss the financial position of the Railways and criticize Additional Appropriations more intelligently than is now possible.

You cannot discuss those under the Appropriation Bill:

We would have a closer appreciation of the reasons for these additional sums.

I know, but the hon. member cannot discuss it here. I gave guidance to the House before I called upon the Minister. I hope the hon. member listened to the advice that I gave them.

I listened, as ever, with the greatest of attention. I assumed that, when you read out what you did, you had at the back of your mind the knowledge, as an old railwayman, that the little latitude that is offered in this House on these occasions is given both to the Minister and myself. I am allowed to debate, I presumed, in slightly greater detail and at somewhat greater length, any references or comments which the hon. the Minister himself makes. “Savings”, for example is something that we cannot discuss at length—but when the Minister seeks to explain them we can criticize his explanation.

I see that these expenditures contain, amongst other things, as the Minister has pointed out, a sum of some R45 million in “so-called” savings. I think the Minister said—I hope I heard him clearly—that this really was in relation to the non-payment of cost-of-living allowances …

It is really a book entry.

Certain cost-of-living allowances had no longer to be paid out simply because of the consolidation of C.O.L. with basic wages. Because of consolidation the necessity for this payment has disappeared …

Provision is made for additional wages.

But if I remember correctly, the hon. the Minister explained what was going to happen on 15 June last year.

I explained it but provision is still made in the Estimates.

I thought so. Thus what the Minister told us to-day is really an additional explanation, more than an additional appropriation and was probably out of order. Mr. Speaker …

It was out of order.

I thought so, but as I said, we too should be allowed a little bit of latitude in this matter. I am glad that the Minister has confirmed my thoughts.

We also have an item here which shows that on Loan Vote Capital Expenditure R20,000,000 was not called upon. I should like to ask the Minister if he realizes the possible serious consequences of that practice of over-provision for this country. When the Railways ask for these loan facilities and do not use them, it must of necessity crowd out the loan requirements of other Departments and it might in that way retard our economic progress.

Order! The hon. member cannot discuss that.

I merely wanted to make that point, Sir, and thank you for allowing me to do so. I notice that the Minister has made a note of my criticism and if you will allow him he will probably reply to me when the debate ends.

I have crossed my note out in view of Mr. Speaker’s ruling.

Because the Minister has no satisfactory answer. As I have said, we will in due course come to a more detailed discussion of all these matters in Committee. I hope that what I have been allowed to get past the Speaker has entered the Minister’s consciousness, if not his note book, and that he will take greater care in future to estimate his loan requirements more accurately so that we will not have these vast sums left unspent and in that way possibly hamper the progress of our country. I will reserve any further remarks for the Committee Stage …

If I had to reply to what the hon. member asked, I would be ruled out of order. I am afraid I cannot reply and will have to discuss those matters during the Budget debate.

House in Committee:

On Head No. 17.—“Miscellaneous Expenditure—Railways”, R407,718,

I mentioned when I was talking to the motion that we wanted further particulars on one item here. I refer the Minister to (g), payment of a gratuity to an ex-railway commissioner. This is a new item of some R4,280 and I would like the Minister to explain it. How is it arrived at? What is the reasons for this additional amount?

Under the provisions of Section 126 of the South Africa Act. 1909, a gratuity scheme for railway commissioners was approved by the Executive Council as a condition of their appointment and the additional funds are required to pay the gratuity to Dr. van Abo, the ex-railway commissioner. It is part of their contract.

Is this what it would have cost if he had continued in his service and had his contract not been prematurely ended?

No, it is calculated pro rata up to the date of his retirement.

Can the Minister tell us why Dr. van Abo’s contract was terminated? For what reason did this excellently qualified railway commissioner leave the service before his time?

Dr. van Abo should have retired in June of this year— well, not retired, but that was the termination of his five-year contract, but he felt for different reasons that he wanted to retire earlier, so he decided to retire at that particular date.

For informative reasons?

The hon. member can write to him personally to find out what his reasons were, but he decided to retire at that particular date, and not to lose his services I appointed him in a consulting capacity to undertake some very important work. He is employed in that capacity until such time as the work is completed, or the Railway Administration does not require his services any more.

This is Gilbertian. It seems that this gentleman was prematurely retired at his own wish, but did not really want to retire. His services were so valuable that he was retained by the Administration in another responsible capacity. I realize that the Minister is not always his own master in his own house. In this case he had to obey another, bigger boss. I suggest that his explanation is rather superficial; that the real reason is something entirely different from what he tells us. I suggest further that it is a bad principle for railway commissioners to be drawn from the ranks of politicians. We have had Dr. van Abo as a railway commissioner for some time. He represented engineering interests and he knew his job thoroughly. He is now taken away from his semi-technical job to make way for yet another politician on the Railway Board. Using the Railways for political purposes is not correct. The Minister knows that the 1909 Act says that the railway commissioners should be nonpolitical. I am afraid all parties have erred in the past by making political appointments. But it is high time this practice ceased. I think the Minister should stop it. The Railways and Harbours Board was originally intended to protect the Railways and Harbours from political influences. It was intended to see that the administration of the Railways did not come under undue interference from the Government. This Minister has departed from that policy entirely. I am sure that in the interests of the Railways, the Minister should not allow this process to proceed any further. If Dr. van Abo had been replaced by an engineer I would have had nothing against it. But he merely had to make way as the result of a political manoeuvre. Dr. van Abo had to go to make way for Mr. de Villiers so that Mr. Waring could take his Vasco seat. That is not the right way to run a business, and the Railways should be run on business lines. I am sure the Minister in his heart of hearts disapproves as strongly as I do of this political manoeuvring to get a so-called English-speaking member into this House. It should not take place. I would like to know whether the Minister really approves of this whole sordid transaction?

I do not quite agree with the hon. member for Wynberg (Mr. Russell). He correctly stated that this was the practice of all previous Governments. I know that when we took over Mr. Louis Esselen was the General Secretary of the United Party, but he was a member of the Railway Board, and also Mr. Teichman. This was the usual practice in the past. But I think it is valuable to have politicians, or at least ex-politicians, on the Railway Board. It is necessary, particularly when you deal with staff matters, that you should have a man there who has concentrated on staff matters during his political career and who has come into contact with the staff and knows their requirements. So I certainly do not agree that there should be no politicians on the Railway Board. I think they serve a very useful purpose indeed.

Especially in Queenstown.

What has Queenstown got to do with it? The hon. member does not know what he is talking about. He is probably still regretting Queenstown. I might say also that the gentleman who was appointed, Mr. de Villiers, is a man whom I find fully competent to do the work and I think he is a valuable acquisition to the Railway Board. The Railway Board occupies quite a different position to-day from what it did just after 1910, as the hon. member knows. To-day, to a large extent, the Railway Board is merely an advisory body. It has no executive function, except that it is the final court of appeal in regard to appeals lodged by the staff. Apart from that, it of course has certain functions in regard to finances. I personally think that the Railway Board should be balanced. The chairman of the Board is an economist who has the respect of everybody who knows him. and the other two members, Mr. du Plessis and Mr. de Villiers, are known to hon. members of this House. Both of them were chairmen of the Select Committee on Railways and Harbours. I think the knowledge they have of railway matters in general and of staff matters in particular is very valuable to any member of the Railway Board. This has nothing to do with politics. It is quite incidental that a vacancy was created for Mr. de Villiers and as the result of his appointment Minister Waring was nominated in his seat, but although it was incidental I think it is a very good thing that it did happen.

Mr. Chairman, I think the hon. the Minister should be more frank and less warying about this situation. The hon. the Minister quoted Section 136 of the South Africa Act to justify the item which appears on the Estimates. Sir, Section 125 of the South Africa Act says that the salaries of the commissioners shall be fixed by Parliament and shall not be reduced during their term of office. Therefore, when Mr. van Abo was appointed, Parliament, in one way or another, fixed his terms of remuneration, and this is not within the provisions of Section 136 at all. It is something over and above what was fixed upon in terms of Section 136, and it is not a salary because that is what Section 136 says shall be fixed.

You mean Section 126.

I am sorry, I am quoting from Section 126, which says that the salary shall be fixed by Parliament, and presumably that was done in some way. There is, therefore, no justification for what the Minister originally explained, because this is a gratuity, and I think the Committee is entitled to fuller details as to why this gratuity is being granted, on what basis it is calculated and for what purpose it is being granted. Therefore, I think the Minister should be a little more frank.

May I just explain to the hon. member that Section 126 provides for the fixing of salaries, but this gratuity scheme was formulated in 1956. It is not a special gratuity scheme merely for the retiring commissioner, Dr. van Abo. As a matter of fact, the widow of Hr. Haywood, who died last year—Parliament agreed to it and she received a gratuity in terms of that scheme. So this is not a new thing. It was actually introduced in 1956. Similar gratuity schemes were introduced for members of different boards some years ago, and the Railway Commissioners were brought into line with the members of certain boards.

Mr. Chairman, I quite agree with the Minister that Railway Commissioners should have railway experience. Indeed, as he knows, the first three Railway Commissioners were ex-General Managers of Railways.

Order! I cannot allow the hon. member to discuss that. The hon. member asked the hon. the Minister for an explanation. A full explanation has been given and the matter cannot be discussed further.

On a point of order. Sir, do you yourself think that explanation was full enough?

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

Then I confine myself to saying just this that it is high time the Minister reconsidered the composition of the Board. The Railways should be run on better business lines. The Board should be balanced by appointing people with business experience as well as engineering experience, as it was in the past, and not have too many party politicians on it.

Mr. Chairman, I want to raise two matters with the hon. the Minister under (d) and (e). The Minister explained that the increase under (d), bad debts and sundry items including ex gratia refunds, was due to a large number of small items having been added. Sir, the increase here is in the nature of a 75 per cent increase and I think the Committee is entitled to a more explicit explanation as to why such a large increase has come about, because this certainly is not a case where a nominal amount was put on the original Estimates. The amount provided in the original Estimates was R40,000, whereas it has now been increased by 75 per cent.

Then I would also like the Minister to deal with (e), where the increase is from R12,000 to R90,000. There the Minister did explain that the R12,000 was merely a nominal provision. Will the Minister tell us what was the expenditure under this head the previous year, so that there may be some sort of comparison? R90,000 is being provided for the year 1961-2, but there is nothing to indicate what the comparative figure was in 1960-1. Will the Minister please give us that information?

In regard to Item (d), bad debts and sundry items including ex gratia refunds, the figure is as follows. The increase is due to provision being made for an anticipated net increase—an amount of R18,245 owing to the Administration by Messrs. Union Steel Corporation of South Africa Ltd. in respect of railage undercharged on traffic hauled locally between private sidings is being written off as a charge against bad debts and sundry items, the undercharge having arisen through the Administration’s error and unfortunately having become prescribed; and R20,446 represents portion of under-charges due to the wrong rate being charged on consignments of ammunition consigned during the period June 1956 to February 1958 by the British Admiralty from Jan Kemp Dorp to Simonstown. The amount is being written off as even on legal grounds it is doubtful whether the recovery could be made. The ex gratia refund of R518 was made to Clerk P. A. van Straten, being portion of the cost of repairs and renovations recovered from him on a property re-allocated under the house ownership scheme on his transfer for departmental reasons. The property was reallocated in error as it was defective and should have been disposed of. That accounts for the total amount R30,248.

With regard to Item (e), that is increased provision required in respect of refunds in justifiable circumstances of amounts claimed by contractors as damages for late deliveries. The hon. member knows that there is a penalty clause in all the contracts and a certain amount is retained for late deliveries, but when the contractor makes out a good case for a refund of the whole amount, or part of it, it is considered by the Administration and a refund is made.

What was the comparable figure last year?

I will get it and give it to the hon. member later.

Head put and agreed to.

Head No. 24.—“Interest on Capital—Harbours”, R76,201,

In regard to Item (b), the payment of R222,500, is that a payment up to the end of March 1962, or is it a continuing matter which will appear again?

In accordance with the pool arrangement between B.O.A.C., South African Airways and Central African Airways and East African Airways, there are arrangements with regard to the division of profits and the sharing of losses, and this is calculated at the end of every financial year. This is the amount still owing by the South African Railways in terms of that pool arrangement, and that has to be paid in the current year.

Head put and agreed to.

The Committee proceeded to consider the Second Estimates of Additional Expenditure on Capital and Betterment. Works.

On Head No. 2.—“New Works on Open Lines”, R2,031,000,

On Item 72, will the hon. the Minister tell us what this extra amount is that was spent on the elimination of the Sweet Waters road level crossing, and can he tell us why there was some R9,000-odd spent extra, for what reason and how it was spent?

I am seeking some information from the Minister in regard to Item 93, under the heading “Durban, Equipment for Horticulturist”, where an additional amount of R3,923 is asked for. Will this equipment for the horticulturist in any way assist in the improvements at Durban station, which is out-dated and dilapidated?

Order!

Item 2, is this a final payment, or is it a payment which is likely to recur periodically?

In reply to the hon. member for Pietermaritzburg (Capt. Henwood), this amount is required for the following. It is to eliminate the level crossing, and this is the Administration’s 70 per cent share of the total cost. This is an additional amount of increased costs. The Administration is responsible for 70 per cent of the cost of the construction for the elimination of that crossing. This is an additional amount required by the Administration. It is the payment of a belated account from the municipality.

Is that for the subway? There are two level crossings.

The hon. member knows the area better than I do. This is at 77 miles one chain. Does the hon. member know where that is?

Yes.

The hon. member for Umbilo (Mr. Oldfield) wanted information about Item 93. This amount was required for the replacement of obsolete and worn-out machinery. It was authorized from the 1956-7 unforeseen Works Vote. Compliance with the amended provisions of the Motor Ordinance resulted in the actual cost being under-estimated. It is a belated debit.

The hon. member for Port Elizabeth (South) (Mr. Plewman)—this is the final amount to be paid for this financial year. It was a contract entered into in 1946 with this company. The Administration queried, inter alia, the validity of the claims but they took the Administration to court and judgment was given against us.

Duly authorized by the hon. member for Drakensburg (Mrs. S. M. van Niekerk), I should like to ask a question about Danskraal. It is in relation to Item 140, where an additional amount of R2,625 is requested. The hon. member would like to know what this additional amount represents, and she would probably have asked what an “electric running shed” is. Is it a shed which runs on electricity, or is it a running shed that does so because it is electrified?

I can understand the hon. member for Drakensberg asking that question, but I am surprised at the hon. member for Wynberg (Mr. Russell) for not knowing what an electric running shed is, and I suggest that he asks the hon. member for Drakensberg what it is.

What is it?

I am surprised that there is so much ignorance on the part of the Opposition in regard to railway matters. They do not even know what an electric running shed is. Do they know what a steam running shed is? It is the shed where the electric units are stabled. But this item is self-explanatory. It is to strengthen the crane tracks, and to give the reason for it, I can inform the House that it is to facilitate the handling of the heavy parts of electric locomotives under repair. The additional amount is for increased costs due to restricted working conditions which retarded the progress of work and prevented completion by 31 March 1961.

I would like to ask for information on Item 130, the Fish River water supply. What is the source of this augmented water supply?

I can inform the hon. member that unfortunately it has nothing to do with the Fish River Irrigation Scheme. This is merely to get additional water for the locomotives. It was really owing to the delay in the delivery of a control valve, a float and a float chamber that the work was not completed by 31 March last year. There is an existing water supply and certain repairs had to be done. A float chamber, a float and a valve had to be fitted to the pump. This should have been done before 31 March last year, but unfortunately it was not done and that is why the amount appears here.

If the Minister will refer to the speech he made when the motion was introduced, he referred to this item regarding Ogies, Head No. 2, Item No. 2, an additional amount of R670,000, for compensation for the exploitation of coal. In his speech he said this—

It sounds as if this legislation (Act 38 of 1946) authorized the entering into of an agreement. Now I do not think that can be so. I think it must be just the wording of the Minister’s speech which gives the wrong impression. Will the Minister tell me whether this is the final sum to be paid out, and how was the sum arrived at? Was it done by arbitration or agreement or did the matter go to court?

The Act referred to was the Construction Act, but there was no provision in the Act for this agreement. This was an agreement entered into by the Railway Administration and the company subsequently, and the terms of the agreement provided that when the company reached the stage where they would be in the position to mine the coal under the ground appropriated by the Railways, the potential coal available would be valued and the Railway Administration agreed to pay for the potential value of that particular coal. That was estimated by both the mining company and by the Railway Administration, and I think they also called in the assistance of the Department of Mines. There was a dispute in regard to, inter alia, the amount that was claimed. The company took the Administration to court and judgment was given against us so we are compelled to pay.

When was this?

That happened last year.

On page 16, item 141, provision is made for an extra amount of R2,010 for the “Bellville-Touwsrivier, including Stellenbosch loop; electrification of section”. I would like the Minister to give this Committee some information when this work will be completed.

Order! The hon. member can only ask for the reasons for the increase.

What are the reasons for this increase and when will the line be completed?

Order!

The second item to which I wish to refer is item 143, “Cape Town— Simonstown; replace 1,500-volt substations at Milnerton, False Bay, Diep River and Glen-cairn by 3,000-volt substations”. I take it that will prevent breakdowns in the future such as we have done in the past.

Order! The hon. member may not suggest reasons; he can only ask for the reasons.

I think the hon. member is being frivolous now. It has nothing to do with breakdowns. This item is merely for the conversion of 1,500-volt substation equipment to 3,000-volt substations.

And what about item 141?

The installation of supervisory equipment at Klapmuts station was delayed by yard remodelling. As an economy measure it has now been decided to install this equipment at Muldersvlei and funds are necessary to complete the work. The electrification, of course, has been completed.

Head put and agreed to.

On Head No. 5.—“Harbours”, R10,600,

I shall be pleased if the hon. the Minister could give the Committee some information in regard to item 159 concerning dredging in the Durban harbour, for which an additional amount of R3,600 is required. This item is described as “dredging access channel at boat-building and repair sites at fish wharf”. I should like to know the reasons of the additional amount which requires to be voted.

The work was done to provide access to sites leased for building and repairing boats. The work was delayed by a shortage of staff and was not completed by 31 March of last year. It was completed after 31 March last year and that is why provision has to be made in these Estimates.

Can the hon. the Minister tell us what has been the delay in the Table Bay Docks in altering the wheel-carriage of crane No. 81.I refer to item 160. Is this amount being re-voted or is this an additional amount?

This was to obviate difficulties in weight distribution of the crane and to enable cranes to work the full length of the quay from E to L berths. The manufacture of the altered crane bogies took longer than anticipated and could not be completed by 31 March last year. That is why the item appears in this year’s additional Estimates.

Head put and agreed to.

On Head No. 8.—“Working Capital”, R193,500,

I would like to refer to item 168, a new item, which refers to the S.A.R. & H. Sick Fund, where an additional amount of R150,000 requires to be voted. Will the Minister give us some indication as to why it is necessary for this deficit to be made good at this time? Is this the total amount that will make the Fund solvent for the year, or is this an amount calculated up to some date since March of last year

This is the anticipated deficit at the end of the financial year, and a State-President’s special warrant was obtained for this purpose. As I indicated in my opening remarks, the Sick Fund Boards have taken certain measures to increase the revenue of the Sick Fund so as to enable them to balance their accounts in future. The Administration cannot, of course, allow this deficit to continue and this money is to be voted to finance the deficit.

May I ask the Minister whether this estimate is to the end of the financial year?

Yes, to the end of the financial year.

Head put and agreed to.

House Resumed:

Second Estimates of Additional Expenditure to be defrayed from Railways and Harbours Revenue Funds reported without amendment, and the Second Estimates of Additional Expenditure on Capital and Betterment Works reported, without amendment.

Report considered, and the Second Estimates of Additional Expenditure from Railways and Harbours Revenue Funds and the Second Estimates of Additional Expenditure on Capital and Betterment Works adopted.

The MINISTER OF TRANSPORT brought up a Bill to give effect to the Estimates of Additional Expenditure adopted by the House.

I move as an unopposed motion—

I just want to say that what has happened here to-day shows how, when everyone is sweetly reasonable, the business of this House can be speedily managed. The little bit of liberty you gave, Mr. Speaker, did not prove to be a dangerous thing.

I move—

Mr. Speaker, we have only just seen the Bill.

Order! Order!

I move—

I second.

Agreed to.

Amendments in Clauses 2, 16, 17, 18, 21, 25 and 26, put and agreed to, and the Bill, as amended, adopted.

I should like to move the amendment standing in my name on the Order Paper—

In line 6, to omit “an act or omission in conflict with a” and to substitute “a breach of”.

The amendment is a very simple one and it logically follows on the contention advanced on this side of the House during the second reading debate. The intention of the Bill is to restore the Roman Dutch law principle dealing with penalties and liquidated damages. That being so I think it would be wise to adhere as closely as possible to the language which is used by the courts and their interpretation of the original principle in giving effect to it. I know that it might be argued that the words “an act or omission in conflict with a contractual obligation” is in fact a breach. If that argument is to be used, then all I can say is that it seems to me to be an argument in favour of the adoption of the simpler term “a breach of”, because that is the language which is well known in the judicial world, and significantly enough, it would then also bring the section into line with the marginal note. The marginal note to this clause says, “stipulations for penalties in case of breach of contract to be enforceable”, and since the marginal note uses what I consider the correct terminology I cannot see any justification for leaving it out of the clause itself. We have no conflict with the hon. the Minister in regard to the provisions of the Bill, and the purpose of my amendment is rather to avoid confusion and not to add an additional difficulty in the interpretation of a principle which is now going to be set out by statute instead of being part of our common law. I hope the hon. the Minister will give consideration to this suggestion because I do not think it does anything to harm the provision which is contained in the clause, but I do think it makes its interpretation simpler.

I had the opportunity of discussing the hon. member’s amendment with the law advisers, and my information in this connection is that the Law Revision Committee considered this matter very thoroughly and that the text of this Bill is the responsibility of this Committee generally. It is just possible—at this stage I do not want to say that is so—that if we accept the words proposed by the hon. member for Port Elizabeth (South) (Mr. Plewman) we shall be accepting something with a narrower meaning than the words actually contained in this clause. I have already said that the Law Revision Committee as a whole accepted responsibility for the drafting of this Bill as far back as 1950. The then chairman of the Law Revision Committee is a person who is not unknown to my hon. friends on the other side. I refer to His Honour Mr. H. A. Fagan. Who am I to quarrel with his words in a Bill of this kind? These words were chosen with great circumspection, and since the dispute here is not on a matter of principle but purely a matter of wording and since my information from the law advisers is that this correctly sets out what the entire Law Revision Committee decided, I do not think we should split hairs about words —we should rather leave the wording as it stands here. I do not say that because I do not want to meet the hon. member; I say it because I want to guard myself against the possibility that a different interpretation may then be placed upon this text. In those circumstances I am sorry that I cannot accept the hon. member’s amendment.

As the hon. the Minister knows, there were many aspects of this Bill with which we were not happy, but the hon. the Minister has indicated that the Law Revision Committee wanted this to remain exactly as it is. I wonder if the hon. the Minister can tell us whether or not this Bill as it appears here in this particular form is what was approved by the Law Revision Committee.

Yes, that is my information, and it was published in that way, way back in July of last year.

It is interesting to note that the marginal note to this clause says, “stipulations for penalties in cases of breach of contract to be enforceable”. Those words “breach of contract” are used in the marginal note.

That is so, but in the context it might have another meaning.

It might, but we fail on this side of the House to see what other meaning and act or omission in contract with a contractual obligation can have but a breach of contract.

But if according to you it has the same meaning why must we quarrel with the Law Revision Committee?

No, I do not say that it has the same meaning. I say that I know what “breach of contract” means; the courts know what “breach of contract” means; practitioners know what “breach of contract” means, and, more important than that, the public know what “breach of contract” means. It is a well-known term. When they go and see their lawyers they can advise them what that means, and it just may mean something different, and if it does mean something different then I think some explanation other than that the Law Revision Committee wants it to remain should be given. I believe that we are entitled to an explanation as to why it is that they want this particular expression to remain.

To give it as wide as possible a meaning.

I certainly recognize the Law Revision Committee as a very distinguished body, and I have no comment to make on their ability, but the fact is that they are not the law-making body whereas this House is. It would be quite wrong for either this House or the Minister to shield behind a body such as the Law Revision Committee.

I am not trying to shield behind them. I am giving you their explanation.

The Minister’s explanation in effect is this: “These men have done it; who are we to question it?” In that regard I am very sorry that the hon. the Minister should have brought in the name of a very distinguished jurist and that he should have tried to belittle him in the way he did.

You are being silly.

If I am wrong, I will be only too happy to admit it, but that was certainly how I understood the hon. the Minister when he brought in the name of a very distinguished jurist and referred to him as though we on this side of the House had some special favour to bestow. I mentioned that in passing. I am sorry I did so; I was provoked into it. I think it is wrong that this House should deal with a matter merely on the ground that the Law Revision Committee chose certain words. I do not know whether the Law Revision Committee was responsible for the marginal note as well.

No.

Well, then, someone along the line, presumably the law adviser, has seen the advisability of choosing what I believe and what my hon. friends over here and what I believe the Minister believes is the correct term and that is “breach of contract”. I think it is a pity that we should not deal with the matter as I believe we ought to deal with it. I think we should use the language that we are all agreed upon. I do not think that we should use different language merely for the reason that a different body, not the legislative body, has chosen different words. I have little doubt, knowing the stature and the ability of the men in question, that if the argument had been put to them, they might well have said, “yes, we believe that is the best language to use”. It is quite evident that the law advisers regard the term “breach of contract” as the better term because that is the term that they have introduced into the marginal note. I agree with the hon. the Minister that there is no principle involved here, except the principle that legislation passed by this House should be couched in the best form in which we can put it.

Is there any difference in meaning?

I think there is great difficulty in the question of interpretation. I have conceded from the beginning that it might be argued that the one set of words has the same meaning as the other, but why then should we adopt words which have never yet been interpreted? Why should we add to the burden of the litigant and of the courts by bringing in some fresh terminology?

But surely the words “acts or omissions” are not unknown to our law; they are used every day.

Acts or omissions in conflict with contractual obligations …

Or the stipulations of the contract.

I think they are; we talk of that as a “breach of contract”. I frankly feel that we are not doing our duty. I would therefore appeal to the hon. the Minister to give this matter further consideration. My only motive is that we should get our legislation in the best form in which we can get it as it leaves this House.

I should like to make it clear at the very outset, for the sake of the record, that the hon. the Minister mentioned the name of a prominent jurist here simply to show the House and hon. members on the other side that the members of the Law Revision Committe, who asked for this Bill and for the wording in this clause, are enlightened and well-read people. They are people with legal experience, and I resent the fact that the hon. member for Port Elizabeth (South) (Mr. Plewman) sought to attribute to the Minister an attitude which the Minister did not adopt. Then I want to say that I agree with the hon. member for Port Elizabeth (South) that as far as possible we should try to draft our legislation in the correct words. I would also say to the hon. member that as I see this matter I would say that the term “breach of contract” as proposed by him would be the most convenient term to use in this clause. But the point is that the Law Revision Committee asked for this Bill, and the people who serve on that Law Revision Committee are people who have to do with the practical working of this measure from day to day. They are the people who asked for this wording. The hon. the Minister has told us that these are the words for which they asked. I want to appeal to hon. members not to come along and say that the hon. the Minister is shielding behind the Law Revision Committee. The point is that the Law Commission asked for these words. Let me say, as the hon. the Minister also stated, that we can see no objection to the words proposed by the hon. member for Port Elizabeth (South) (Mr. Plewman) but the Law Revision Committee asked for these words with a specific purpose and. as the hon. the Minister has said, it is possible that having accepted this amendment and having amended the Bill as proposed by the hon. member, we may then find that the words accepted by us do not have the same scope as the words for which the Law Revision Committee specifically asked. If anything then goes wrong the responsibility would be on the shoulders of the hon. the Minister and on the shoulders of this whole House. I would therefore appeal to hon. members to accept this wording.

The hon. member for Smithfield (Mr. J. J. Fouché) has justified the point of view put by the hon. member for Port Elizabeth (South) (Mr. Plewman). I want to repeat that this is not a political issue.

I know.

The hon. member for Smithfield has now repeated what the hon. the Minister said, namely, that the Revision Commission has asked for this clause to be passed and that the Revision Commission drafted the Bill which they presented to us. We on this side of the House, as also the hon. member for Smithfield, agree that the words “breach of contract” are preferable. It is a term which we all understand. But the Minister says, and so does the hon. member for Smithfield, that we must accept the wording as drafted by the Revision Commission because the term “breach of contract” may not cover what they intended. Now I submit that if that is so, we should rather find out from the Revision Commission what the objection is against the term “breach of contract” because if they intended these words that they use “act or omission” to mean something else than a breach of contract, we should know, Sir. We are passing the law. The Revision Commission is not passing the law and if those words mean something else than “breach of contract”, we in this House should know exactly what they do mean. On the other hand, if they do mean nothing else but “breach of contract” then we appeal to the hon. the Minister to accept the accepted phrase, the words we have all become accustomed to using. We know exactly what “breach of contract” means. If there is a chance of these words “act or omission” meaning something more than “breach of contract”, as the hon. the Minister himself said, then we have no right to pass this Bill. We must know exactly what it means. My difficulty is this: Some of the members of the Law Revision Committee may sit in judgment on this Act, and the ordinary interpretation by the laymen and by the lawyers may be one thing, but when the matter is taken before a court on which may be sitting some of the members of the Law Revision Committee, they will interpret it as they intended it to be. It may not be what the Legislature intended it to be. The Legislature, as far as I can make out from what the hon. member for Smithfield said and what the Minister said, intends that it should merely cover a breach of contract. If that is our intention, we should say so, and we should not then use words which may have some other meaning, as was submitted by the Minister himself.

I understood the hon. the Minister to say in an interjection to the hon. member for Port Elizabeth (South) (Mr. Plewman) that the marginal note was not part of the text agreed to by the Law Revision Committee.

It is not part of the Bill either.

What I want to know is whether or not they have seen that marginal note and have accepted that reflects the object of the contents of the clause. This is very important for the reason mentioned by the hon. member for Transkeian Territories (Mr. Hughes). We are the Legislature and our function, as I understand it, is. to make laws for the good government of the Republic.

Order! That argument has been used and the hon. member should not repeat arguments.

Sir, I mention it merely to come to the point I want to make and that is that the people whom this will affect are not the members of the Law Revision Committee. It is true that they are concerned with the law, but the members of the public would like to know what the law is, and that they can only find out from their legal advisers. I don’t know that there is no difference between these two terms “breach of contract” and “act or omission in conflict The one that we know should remain if there is no difference.

But surely we know both.

The hon. Minister may say that we know them both. That is correct. We know both expressions, but this is intended to apply in the event of a breach of contract. Now if they are the same thing, then why is a different expression used from the one which is known to all lawyers, to all laymen, to all businessmen, to all the Judges? If they are in fact synonymous it is very odd that different expressions are being used, and it makes one think that in fact the meaning of “an act or omission in conflict” is something different. Prima facie it is something different. You can have an act or omission which is in conflict with a contractual obligation but is not necessarily a breach of that contractual duty. I mention that here because it is something that occurs to one by just looking at it. The words don’t mean the same thing, and I must remind the hon. the Minister that when provision was made in the Act of 1935, when this matter came up the last time in this House, provision was made for precisely the same principle as is involved in this Bill and that Bill also went to the Law Revision Committee, and the members of that Law Revision Committee were also very distinguished people, possibly even more distinguished people, and the expression which they used in the 1935 Act was “breach of contract”. Now here is an expression used which our law does not know, and I am surprised at the hon. member for Smithfield adopting the attitude he has adopted. He knows that this expression is not to be found in the Roman-Dutch Law, let alone in our case law. I appeal again to the hon. the Minister to accept the amendment in the interest of the ordinary business people who will be called upon to make contracts.

I honestly feel that we are simply splitting hairs now. If the allegation of my hon. friends on the other side is correct that their words and my words have the same meaning, then I do not know what we are quarrelling about. After all, at the second reading we agreed to give the widest possible interpretation to this matter so as to make it perfectly clear that what we are doing here is to restore the Roman-Dutch legal position. On that point we were entirely ad idem. I have told hon. members that the reason why I do not want to accept the words proposed by them is that there is a possibility that the term “breach of contract” may be capable of a narrower interpretation than the words “act or omission in conflict with a contractual obligation”. I concede at once that if I had had to draft the Bill, I would have used precisely the words which the hon. member for Port Elizabeth (South) (Mr. Plewman) wants to use.

Then we ought to do so.

What hon. members cannot understand is that I am not an expert, nor is the hon. member an expert.

That is why we are here.

No, we are here to agree or to differ on principles. That is our cardinal function. But when the experts, the people who ought to know, come along and say, “This principle on which you are entirely ad idem should be expressed in these particular words”, then it is not for me to go and quarrel with them. It would be stupid on my part unless I knew more about this subject than they do. I cannot allow the remarks made by the hon. member for Port Elizabeth (South), when he became annoyed, to go unchallenged. He became annoyed because I referred in passing to the hon. Senator Fagan.

He is not a Senator.

Oh, I beg your pardon, Mr. Fagan was not elected. But in saying that I had no ulterior motive; I simply stated the fact that Mr. Fagan was the chairman of the Law Revision Committee which had to decide this issue. To sum up, therefore, I repeat that according to hon. members on the other side, and in my lay opinion too, these words have the same meaning, but I must allow myself to be guided by these people who have superior knowledge of drafting, and if they tell me that this is the way to formulate this particular principle which we all accept, then I must accept that. If I did not do so I would simply make their task and our task an impossible one. I am sorry therefore that I cannot accept it.

Amendment put and negatived.

Clause, as printed, put and agreed to.

On Clause 3.

Here is another instance where I certainly am not happy about the phraseology which is being used in the clause, and significantly again, it is the marginal note which I think gives correct expression to the law as we always have understood it. Here again there has been introduced into this legislation the words “out of proportion to the prejudice suffered”. Sir, the legal textbooks that one has reference to and also the decided cases used the word “excessive”. Here again when the law adviser came into the matter apparently, he used what I believe is the correct term “excessive penalty”, something which has been interpreted in our courts. I do not want to repeat the arguments we used in regard to the previous clause and I move no amendment, but I would like to have this assurance from the hon. the Minister that the phrasing that is being used will place the onus upon the party seeking to avoid payment to establish these words “out of proportion to the prejudice suffered”. I want to have the assurance from the hon. the Minister that the law advisers are convinced that is the position. Then I would also like to know whether the adoption of this new phraseology is going to put a different onus on either party to litigation than what exists under the Common Law as it has always been applied? It seems to me that we are possibly putting a heavier onus on one or other of the litigants than would otherwise have been the case had we simply used the straightforward language “that the penalty was excessive”. During the second reading debate, I quoted to the hon. the Minister the terms of the judgment in the case of the Pearl Assurance Company in 1933, where it was, I thought, very clearly put that where a fixed amount has been stipulated to be paid by one party to a contract, in the event of a breach, such an amount is prima facie recoverable and the onus is on the party seeking to avoid payment of the penalty to prove that the penalty is excessive. That seems to me very straightforward and simple language, and I would like to have an explanation of the hon. the Minister on these two points.

The hon. member raised this matter in the course of the second reading debate. There are two issues to bear in mind in this connection. In the one case you have to deal with a default judgment and in the other case you have a contested claim. In the case of a contested claim, naturally, the onus will be on the applicant or the plaintiff—in any case the man who avers must prove his case. That is the general law. So there we will have no difficulty. The only case where we can have a difficulty at all is on the question of a default judgment. There the general rule would be that where the other party is in default, the court will automatically give judgment in favour of the party asking for it and the fact that the other party is in default will bring about that the court will not query the statements in the pleadings of the plaintiff. But as in every default judgment, the court has the right to refuse default judgment under certain circumstances, and so in this matter, in the case of a default judgment if on the fact of it the amount asked, is absurd to such an extent that it is out of all proportion to the damage suffered, the court will have the right to go into the matter and to ask further proof.

The hon. the Minister uses the words “out of all proportion”. But those words do not appear in the clause.

Surely the court will be guided by that.

As I understood him, the hon. the Minister said that in the case of a default judgment, being a case where the “guilty party” does not come to court to contest the matter, the matter will not be raised by the court of its own motion. I wonder whether the hon. the Minister there bears in mind that certainly under the Cape rules of court, and I think also under the Transvaal rules, where it is a question of damages on a default judgment, it is necessary for the applicant for such judgment to prove his damages. And as the hon. the Minister will know, it is essential for the applicants to file pleadings setting out the damages and so forth, and it is necessary for those damages to be proved in the ordinary course.

That is the English law which we are trying to avoid.

With respect, where the claim made is for damages, and there is no appearance entered, it is still essential for a declaration to be filed, (which is not so in the case of the ordinary liquidated claim) and for the plaintiff or applicant, as the case may be, to prove his damages. And the hon. the Minister will know in default judgments you do in fact get the applicant or the plaintiff leading evidence where in fact damages are being claimed, and I am wondering what the position will be under this particular provision.

It is not necessary because it is stipulated in the contract. You are just enforcing your contract. You are not asking for damages.

That is the point. The fact remains that this is a claim for damages; it is not a liquidated claim …

It is not a claim for damages. It is enforcing a penalty stipulated in the contract.

Well, that is just the point.

That is the whole point.

It may be a penalty, but it is a penalty in the nature of damages, and I wonder therefore whether in fact the Minister’s interjection is a reply to it. If it is not, certain consequential points may follow. As the hon. the Minister will know, with the Hire-Purchase Act, you have a similar sort of situation. There it is left to the courts of their own motion to consider whether the damages are excessive. As the hon. the Minister will know, in that case it is the practice of applicants seeking default judgment to file an affidavit setting out what in fact they have suffered by way of damages, and a court will not grant judgment in the absence of such an affidavit. They insist upon such an affidavit, and I am wondering whether that will be the position here.

As far as this matter is concerned we have nothing to do at all with damages which have to be proved, because there is nothing to prove in view of the fact that it has already been stipulated in the contract that in the case of an act or omission you will be bound by what is contained in the contract. When it comes to an application for judgment by default therefore, you do not have to prove anything. You would proceed in precisely the same way that you would have proceeded if, for example, you had claimed the delivery of a motor-car. The question of proof plays no role at all there. After all, the basic difference between the English legal principle and the Roman Dutch legal principle, which we are restoring here, is that I am no longer called upon to come to court to prove that the amount specified in the contract is the predetermined damage I suffered, but that is the amount on which we agreed. That is the only question with which the court is concerned. In other words, where judgment is given by default the court does not want to know whether that is the amount of damage I suffered or whether it is not the amount of damage that I suffered. The court is only concerned with the fact that it is stipulated in my contract that I undertake to pay this or to do that. That is the only issue with which the court is concerned at that stage and consequently there is no question of proving any other item except the fact that is what the contract stipulated. I cannot therefore share the hon. member’s objection.

Clause put and agreed to

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

House Resumed:

Bill reported without amendment.

Order of the Day No. V standing over.

I move—

This is a small Bill to amend the principal Act of 1928 and is being introduced at the request of the Pharmacy Board. The Bill consists of only four clauses of any real significance: Clause 2 amends Section 22 of the principal Act; Clause 3 amends Section 32 of the principal Act; Clause 7 amends Section 65bis of the principal Act and Clause 8 amends Section 82 of the principal Act. All the others are mainly consequently amendments.

The first section that is being amended is Section 22 of the principal Act which deals with registration and reciprocity between countries. According to the existing Section 22 the State President has the right to prescribe what degrees, whether they have been obtained in South Africa or overseas, a doctor or a dentist or a chemist should have in order to practise in South Africa. The law provides, inter alia, that three requirements should be complied with before a degree obtained overseas can be recognized in South Africa. In the first place, the person who holds such an overseas degree must be entitled to practise in that country. In other words, a person holding a degree of another country must also be able to practise in that country. The second requirements is that a South African should also be able to practise in that country. Thirdly, the overseas degree should not be of a lower standard than the equivalent South African degree entitling a doctor or a dentist or a chemist to practise in South Africa.

The principal Act provides for the State President to make certain exceptions in the case of doctors and dentists but there is no provision entitling the State President to make exceptions in the case of chemists and the Pharmacy Board have now asked for this amendment so that the State President will be entitled to make exception in their case as well, in other words, to allow chemists from overseas to practise their profession here in South Africa, but only if they practise that profession at university institutions or at scientific research institutions.

Clause 3 of the amending Bill amends Section 32 of the principal Act. In other words, the provisions in connection with auxiliary services. The S.A. Medical Council has the right to register health personnel, medical auxiliary personnel, such as, for example, masseurs, physiotherapists, speechtherapists, dieticians etc., to let them write examinations and to lay down rules to control them. The chemists now want the same kind of right in connection with auxiliary services as far as their profession is concerned, namely, in the case of pharmaceutical technicians, that is to say technicians who make up pills and capsules etc. and also in the case of unqualified assistants. An unqualified assistant is a person who has already served his apprenticeship as a chemist but who has not as yet written his final examination. The chemists now want the same rights in respect of these people as the Medical Council have in respect to their auxiliary services.

Clause 7 amends Section 65bis of the principal Act and deals with medicines that may be harmful. In 1954 the Medical Council and the Pharmacy Council realized that certain abuses may result from the handling of certain types of medicines.

On a point of order, Mr. Speaker, is the hon. the Minister aware that this Bill on which he is addressing the House, is not before us?

Mr. Speaker, the idea is that I should only set out and explain the principles so as to make it easier for members opposite to understand the Bill. I am only setting out the principles and we will not have a debate immediately afterwards. Further discussion will be postponed so as to give hon. members opposite an opportunity of going through the Bill.

May I ask the hon. the Minister how it is possible for us to follow his arguments when we do not even have the Bill before us? Mr. Speaker, we certainly require your guidance in this matter. How can we be expected to understand what the hon. the Minister is trying to say if we do not have the document before us.

Hon. members were quite entitled to raise this matter immediately after the Order was read. Now that the Order has been read and the Minister addressing the House, he must be allowed to continue.

Mr. Speaker, I understood that it had been arranged between the two sides that the House should follow the procedure as I have explained it.

Has the Minister seen the Bill?

The hon. member is being frivolous. I shall just repeat what the position is as far as this clause is concerned and I shall try to be as clear as possible so that hon. members may follow the position even though the Bill is not before them. I return to Section 65bis and Clause 7 which amends that section. It refers to medicines which may possibly be harmful. The Medical Council and the Pharmacy Board approached the Government in 1954 because they were concerned about the position that was developing in the country. They were worried that certain abuses might develop in respect of certain classes of medicine; antibiotics. sedatives and the use of hormones, for example. That was why they came to the Government and asked that the law be changed according to amendments which they themselves suggested and which they themselves thought would be good. The principle that they suggested should apply was that not one of these possible harmful drugs should be sold, unless they were sold on a doctor’s prescription. In other words, a chemist should not sell these medicines unless a doctor has prescribed them. And they suggested that in order to prevent any abuse the prescription should comply with certain requirements. This was a provision which the Pharmacy Board themselves asked for. They asked that the following should appear on a prescription, and if you look at the existing Act, Sir, you will see that these requirements are stipulated there: On the prescription must appear, in the doctor’s own handwriting, the date, the name of the patient, the address of the patient, the name of the medicine, the quantity of the medicine, how often it should be taken, how often the chemist may renew it, the doctor’s address, the doctor’s qualifications and the doctor’s signature. Those were the requirements which had to appear on a prescription in terms of the law. The reason was that the chemists realized that in the best of professions there were always people who contravened the law, and that it should be possible to determine when such contraventions had taken place and to confront the guilty persons with such contravention. That was the reason why they said these requirements were essential. As time went on, however, Mr. Speaker, it was found that certain of those requirements were unnecessary. As a result of that various chemists have made representation to us to amend this section in the Act somewhat. I discussed the matter with members of the Pharmacy Board and after detailed dicussion it was decided that most of those requirements should remain on the prescription but that concession could nonetheless be made.

That is why the following amendments are suggested in the Bill. In the first place it is still necessary to show the patient’s address. It is essential to know who the patient is for whom the prescription was given so as to determine whether the prescription is genuine. But whereas the original Act provides that the doctor himself should fill in the patient’s address, that will no longer be necessary. The patient’s address may be typed in by the doctor’s typiste, or the chemist may even fill it in, but the patient’s address must at some time or other be filled in on the prescription. In the second place, it provides that if the doctor does not indicate on the prescription how often the chemist may renew the prescription for the patient, he may only make it up once. In other words, it makes the position of the chemist easier. He knows that if it does not state on the prescription how often, he may only make it up once. In the third place, it has been decided that it will no longer be necessary for the doctor to fill in his address and professional qualifications in his own handwriting on the prescription. That was necessary under the original Act.

Mr. Speaker, these are the amendments which are being effected to the principal Act as far as prescriptions are concerned. It is unfortunately not possible to make further concessions because if you were to make further concessions it would not be possible to protect the public against the abuse of these various medicines.

May I ask the hon. the Minister a question? Has Clause 20 anything to do with television?

The hon. member is now trying to make the House look ridiculous. Clause 8 amends Section 82 of the principal Act. It is a very small amendment. Section 82 of the principal Act provides that when methylated spirits is sold in small quantities—that is quantities of less than 30 ounces—it may only be sold in bottles marked “poison” and in bottles with a rough surface. As against that the Liquor Act provides that methylated spirits may only be sold in clear-coloured bottles. In other words, the position is that there are two conflicting laws, and in order to do away with this conflict we are effecting this amendment which lays down that in future methylated spirits may also be sold in small quantities in ordinary coloured bottles.

These, Mr. Speaker, are actually the only material amendments which are contained in this small Bill and I hope the House will approve of it.

When I discussed this matter yesterday with the Leader of the House and with the Minister I was under the impression as was the hon. the Minister, I think, that we would have the Bill before us to-day. Unfortunately none of us have seen this Bill and therefore it is not possible for us to discuss it in any way. As far as I could judge from what the Minister has said, there are three completely new principles in this Bill. The one is the introduction of unqualified assistants to chemists; the other is the absence of the doctor’s qualifications and so on. I feel that we cannot possibly debate this matter without more time at our disposal and I move—

I second.

Agreed to; debate adjourned until 23 February.

I move—

I second.

Agreed to.

House in Committee:

Clause 1 put and agreed to.

House Resumed:

Bill reported with an amendment made by the Select Committee in Clause 1.

Amendment in Clause 1 (Afrikaans), put and agreed to and the Bill, as amended, adopted.

Bill read a third time.

Adjournment

I move—

I second.

Mr. Speaker, we wish to record our objection to the adjournment of the House. We feel that this is no way in which to conduct the business of Parliament. We saw what took place a short while ago when we were expected to discuss a Bill which was not before us. Mr. Speaker, I want to make it quite clear to the Leader of the House that as far as it has been possible he has met us when we have gone to him from time to time and asked him to give us some time. In respect of the Medical, Dental and Pharmacy Amendment Bill the Leader of the House agreed that the hon. the Minister would give his second reading speech and that the debate would then be adjourned. But it was generally understood that the Bill would be available first thing this morning. The position is this, Sir, that to-day is the 24th sitting day of this Session. In 1960 we had had eight evening sittings at this stage; in 1961 we had ten evenings sittings at this stage. And here in 1962, at this stage of the session, we have only had two evening sittings. During this Session so far 32 Bills have been released of which 11 have been passed, 10 have been referred to Select Committees and there are four private Bills. The remainder of the Bills are on the Order Paper and have been disposed of as far as possible this afternoon. In terms of Rule 25 of our Standing Rules and Orders evening sittings should commence after the sixth sitting day. As the Leader of the House indicated earlier during this Session, under the old Rules evening sittings started after the 11th sitting day and he quite rightly suggested that we should revert to the old Rule. But even then, as I have shown already, we have only had two evening sittings at this the 24th day stage of the session. We have never yet had that experience. As I have said, the Leader of the House has accommodated us as far as possible. I suggest, Sir, that Parliament is not functioning properly. Either the number of law advisers must be increased or it will become necessary to publish proposed legislation during the recess so that Parliament will have the legislation introduced at an earlier stage. The Leader of the House has given me a long list of legislation that will come before us this Session and as far as possible the workings between the Whips and the Leader of the House have gone off very smoothly this Session.

You agreed to it.

We have no complaint as far as the notification of the proposed legislation is concerned. But notification is not enough, Mr. Speaker. What is essential is that the House should see that legislation. The Prime Minister indicated certain Bills that would be introduced in the Senate and even all of those have not been introduced in the Senate. The danger exists that there will be a cluttering up of the Order Paper, particularly as the session advances, when the House will not have adequate time to consider that legislation and where outside interests will not have adequate time to consider it. We have an example of the Group Areas Amendment Bill which the Leader of the House has agreed should be considered next Tuesday. The Leader of the House has given us time before that Bill comes under discussion. But there will be no opportunity for that Bill to be considered at length by people outside who are interested. Local authorities and other people all over the country are interested in the legislation that we pass here and I suggest that the duty of this Parliament is to pass legislation after mature and careful consideration. We have seen the effect of rushed legislation time after time. I think the Leader of the House who has probably had more experience than anybody else in the House of the arrangement of the Order Paper, will be the first to agree with me when I say that there has never before been such a shambles when it came to arranging the Order Paper. It may be due to lack of staff or to a variety of other reasons, but I think it is essential that at this stage we should place our objections on record. This is no way to treat people who come from all parts of the Republic to Parliament. Parliament should sit for its full time and dispose of its business as soon as possible. Officials are brought down from various parts of the country; members of Parliament travel great distances; the country pays for that expense but it does not pay for people to remain idle. We do want evening sittings to discharge our business, to discharge the work of Parliament as speedily as possible in the interests of the country. We also want adequate time to consider the legislation which is being introduced into this House in the interests of the country. We cannot conduct Parliament in this way Mr. Speaker. Legislation is dealt with in a rushed manner and later on in the session we shall have a cluttered-up Order Paper, with Ministers running to and fro between this Chamber and the Other Place; Ministers arriving breathless from duties in the Other Place as happened this afternoon to the Minister of Justice. He rushed in post-haste from the Other Place to attend to business here. I suggest, Mr. Speaker, that this is the right and proper time to record our protest in the interests of Parliament and in the interests of the country

I wish to confirm what the hon. member has said, namely, that there has been very good co-operation between the two parties this year. I think I have always done my best to accommodate them. The hon. member has not yet been a member of a Government, and if were to be one day, he would know that you always have trouble with the legal draughtsmen at the beginning of a session to get them to have the necessary legislation ready in time. I have given his Party a list of the legislation which we intend to introduce this Session. From time to time I have given him supplementary lists of the legislation which we will probably introduce this year. I just want to say that the first occasion on which I notified them of the legislation that would be introduced, namely, at a meeting of the Whips, a whistle of surprise went up and I think the hon. member for Pinetown (Mr. Hopewell) whistled the loudest because of the volume of the legislation. I think he and I and everybody present at that meeting doubted whether we would have time to pass all that legislation.

Where is it?

Well, we have already disposed of ten or 11, and we passed six to-day. That brings the total to 16 Bills. I just want to say this, Mr. Speaker, that I would have thought than an Opposition that was worth its salt would have compelled us to sit every evening in order to dispose of the 17 Bills which have been introduced. But apparently they are so dumbfounded after the general election of last year, and so dumbfounded to-day about of the results of the Aliwal-North election …

The hon. the Minister is out of order.

Mr. Speaker, I am giving you the reasons why the Opposition cannot speak. Had we had their assistance because they were doing their duty, as we feel they ought to do their duty, namely, to study the legislation and to voice their opinion, the legislation which was before Parliament would have been quite enough. We would have had too much legislation as a matter of fact. I think the fact that we cannot sit the whole afternoon or in the evenings, is largely due, I am tempted to say, to their disinterest in the legislation which has been before Parliament. I remember, for example, the Additional Estimates of the Railways which were passed this afternoon. When we were in opposition, we did not allow that to go through within 1½ hours, and we must remember that at that time many millions of rand less were involved than to-day. If we have to reproach one another, we can equally reproach them. I want to add that I can introduce the Bill on the Group Areas Act to-morrow. But they asked me in heaven’s name to wait with that till Tuesday. That is an important matter and I hope they will have something to say about it. I wanted to place it on the Order Paper to-day, but it was to accommodate them that we have not got it before us to-day. They should, therefore, not complain so much.

We cannot allow the hon. the Minister of Lands to get away with that. As far as the Group Areas Act is concerned, I believe we only received the Bill this morning.

You received the White Paper yesterday afternoon.

It is needless for the hon. the Minister to say that we could have gone on with that Bill this afternoon or tomorrow. It is just trifling with this House to talk like that, apart from the fact that tomorrow is private members’ day. I think the hon. member for Pinetown (Mr. Hopewell) has raised a perfectly valid point and I am sorry the Minister of Lands has not dealt with it on its merits. He is just being facetious about it. We are not burning to sit here at night, just for the sake of sitting at night. But we do believe this, that unless we do some night sittings we shall never finish this Session, or else we shall have, as my hon. friend has said, a cluttered-up Order Paper with everyone in a state of distress and unable to do the work properly. The hon. the Minister complains that we have not talked enough this Session, and he boasts about the quite irresponsible and obstructive way in which he behaved when he was a member of the Opposition. We do not take that view. It just happens that most of the Bills that have been introduced this Session …

Order! I do not think the hon. member is entitled to call it obstructive.

I was really referring to the hon. member’s disreputable past. [Laughter.] But the fact remains that it is no argument for the Government to say that the Order Paper is as it is at present because the Opposition has not talked enough. If the Opposition exercises its discretion in a responsible manner, when a Bill is introduced in this House, it is judged on its merits, and if it is a good Bill or is desirable, we support it, as the hon. member knows very well. So that is no argument at all. The fact remains that if legislation can be prepared in good time I would not be surprised if it was possible to get through the Session without sitting in the evenings. In fact, it might be a good thing; if Bills were prepared in good time and the House was given adequate notice of those Bills, members might very well sit at home at night and study those Bills to facilitate their passing through the House. But sitting at night itself is not in issue; what is in issue is the working of this House, and I think the hon. the Minister of Lands very tactfully, as well as my colleague here, put his finger on the spot, and that is that there are not sufficient legal draughtsmen available to enable these Bills to be drafted. I do think that if the hon. the Minister of Lands would take our protest in the spirit in which it is uttered, it is not in any way aimed at him or his Whips. The co-operation has been very good this Session, and last session too. If he takes it in the spirit in which it is intended, which is to facilitate the work of the House so that it will work smoothly right throughout the Session, without having the appalling mess-up we often do have towards the end of the session, and if he agrees that the real difficulty lies in getting Bills drafted in order to publish them and introduce them in the House in good time—if he takes steps to see that is remedied I think the work of the House will be facilitated and there will be no need for the Opposition to protest now or in the future.

Motion put and agreed to.