I move—

I need not explain that the subject of the motion has been debated on previous occasions in the House. This subject has been debated in every reputable democratic country in the world. As our capitalistic system has developed, especially in South Africa with our expansion into an industrialized capitalist state, it is inevitable that this problem will emerge of a possible conflict between Minister’s private interests and his duty as a member of the Cabinet. This has arisen in every country. This problem is confused because in the minds of some people there is a fundamental distinction between the nature of a public company and a private company. That confuses the problem. There should to-day be no such confusion if one considers the system of taxation of the hon. the Minister of Finance.

In introducing the motion I should like to anticipate an obvious criticism. I have not covered the whole field of this investigation. I have made no reference to a Minister’s participation in a partnership or a syndicate; I have made no reference to a Minister’s shareholdings. I have confined myself to a directorship, of a Minister holding directorship. When a Minister’s private interests clashes with his public duty, the problem is not nearly as serious as the question of holding a directorship. When the Minister’s private interest clashes with his public duty as a Minister, as a member of the Executive, his course is a comparatively simple one: He lays aside his private interest and considers only his public duty and I assume that Ministers do that. But when a Minister is a director of a company a moral issue is involved. The Minister as a director of a company acts as the trustee for the shareholders and where there is a difference of opinion between the company and the State or between the company and any other company which may have an interest in the State, the Minister has this conflict of loyalties: his public duty as a Minister and his duty to the shareholders who have elected him as their trustee. I have made up my mind in this discussion to confine myself to directorships, although it is quite possible that hon. members taking part in this debate will widen the scope of the discussion. A private member cannot possibly cover the whole field of the discussion. I said that this subject had been debated on previous occasions in this House. It was raised in 1944 by the hon. Minister of Finance who at that time was the member for Fauresmith. He raised it in a debate on the Prime Minister’s Vote. The Prime Minister of those days was, of course, General Smuts. I will not quote the whole speech although I must say that it is worthy of quotation because the tone and the tenor of the Minister’s speech on that occasion was very worthy indeed. He did not attack Ministers in the Cabinet who were possibly holding directorships, but he did mention them by way of illustration and I intend to do the same thing to-day, Sir. I intend to follow his very good example. This is what the hon. the Minister of Finance had to say on that occasion (Hansard Vol. 48 col. 3637)—

I think that is very important. It must be apparent to any person, to the most suspicious person, that there is no possibility of a conflict of duties. The Minister of Finance did make a suggestion at that time to the Prime Minister. I will deal with that suggestion at a later stage when I will give my own suggestions as well.

I raised the matter later in 1958. Before dealing with that I should like to say what General Smuts had to say in reply. Hon. members will notice that the position then was not clearly defined, although General Smuts put the position and, of course, commended the hon. the Minister of Finance on the manner in which he had presented his case. General Smuts said this (col. 3647)—

Well, I need not add, Mr. Speaker, that whatever I have to say or what hon. members may have to say, there will be no suggestion of impugning the honour and integrity of any Minister or imputing unworthy motives to any Minister. I am discussing the system as it exists today. When we debated this matter in 1958 I raised it because there had been a good deal of public criticism of the actions of Ministers. On that occasion the hon. the Minister of Lands replied on behalf of the Cabinet and in his reply he stated unequivocally what the position was in the Cabinet then, in the days of Mr. Strydom’s Government. The Minister of Lands said this—

I can expand that if necessary. The hon. Minister did. He referred to the historical background from the days of Mr. Merriman, and Mr. Sauer who were directors of companies. However, I do not think it is necessary for me to do that. What I am concerned with here is to state what the policy was four years ago. I assume that the policy is the same to-day although cases have been brought to my notice where that policy does not seem to be followed. I do not intend quoting those cases.

My argument is this, Sir, that the time has come for a clear statement of policy and the time has come for a change in policy. In order to illustrate what I have to say I am going to consider the operation of two newspaper companies and two mutual companies. They would, of course, fall under this rule of four years ago. The first of these companies I wish to discuss is Die Voortrekker Pers Bpk. As far as I am aware this company is not listed on the Johannesburg Stock Exchange. I cannot find any information about this company in the National Financial Year Book of South Africa and I had to depend upon the Annual Report of the chairman who is the hon. the Prime Minister. One can congratulate Die Voortrekker Pers on the great progress it has made. I am not going to discuss whether Die Voortrekker Pers has been successful or not. I am very glad it has been successful. But what I am discussing is whether it is desirable that the Prime Minister should be Chairman, whether it is apparent, as the hon. Minister of Finance said in 1944, that it is exactly what we want. Here are one or two extracts from that report. Die Voortrekker Pers is a large publishing and printing firm. It is not just a newspaper company. It has extended and expanded its activities and the business will be further expanded this year. It publishes school books. It has contractual relations with the Government and I will mention two of them. The first is the printing of the defence publication called Commando. The cost of printing the Commando was R23,400 last year. That was paid to Die Voortrekker Pers. In addition to that Die Voortrekker Pers printed Panorama at a cost of R151,000. Together these amounted to R175,000. This was paid by Government institutions—the Department of Information and the Department of Defence. Die Voortrekker Pers publishes books for schools used in Government schools; it has a very important printing section. In other words, it has expanded to-day into a publishing and printing firm far beyond the ordinary newspaper company. That is my first point.

Tell us something about the Cape Times.

As far as I know, none of the Ministers is a director of the Cape Times. [Interjections.]

The next company I wish to deal with is the Dagbreek group of companies. I am again depending on the annual report of the chairman of the group at the annual general meeting— not the newspaper company this time, but the chairman of the group, and the chairman of this group again is the hon. the Prime Minister. [Interjections.] I am not discussing the merits of Dagbreek-pers. I am depending on what I get from the annual speech of the chairman of the company at the annual meeting of the Dagbreek group of companies. I want to say a word about this company, because this company has many contractual relations with the Government. I want to mention some of them. It prints for us the Bantu Educational Journal. I should explain that it does not do so directly as Dagbreek-pers but through its subsidiaries. It has several subsidiary companies. There is Dagbreek-pers Bpk., T. W. Hayne Bpk., Dagbreek Boekhandel, Bona-pers Bpk., and then the new one created last year, Lex-Patria-uitgewers (Edms.) Bpk. So here we have a group of companies. I am not speaking now of a simple newspaper company, but of a financial group, a publishing and printing group. Here are some of the contractual relations with this Government. It printed the Bantu Education Journal, at a cost of R26,000. It prints the South African Railway News, again through Hayne & Gibson. There the cost was R9,350. It prints Farming in both languages, at a cost of R52,000 for the 224,000 copies printed. It prints the Digest of South African Affairs—that information publication which appears regularly every fortnight —and the fact papers. These are again printed by the Dagbreek subsidiary Hayne & Gibson. The printing of the Digest and the fact paper together was R29,000. In addition to that, the Bona-pers, a subsidiary, publishes a paper—I think it is monthly—in Xhosa, Zulu and Sesuto, and this paper is brought for our Native schools. [Interjection.] It is paid for out of the Bantu Education Account. I want to tell the House how many copies were bought last year. There is no secret about these things. Everybody knows it. In 1961 242,000 copies were bought and there was paid for it R14,500. So the printing by Dagbreek for Government institutions was R117,000, and of course bona was sold for R14,500. That gives a sketch in brief of the story of Dagbreek.

But there is another feature which appears from the annual meeting of Dagbreek, and I want to quote this extract from the Chairman’s speech, from the speech of the hon. the Prime Minister on that occasion. He was discussing the publication of a new Sunday newspaper and he had this to say. At the previous annual meeting he had discussed a new English language Sunday newspaper, but this time he discussed an Afrikaans Sunday newspaper, Sondagblad. This is what the Prime Minister had to say—

Here we have the situation that the hon. the Prime Minister in his capacity as chairman of Dagbreek is criticizing the establishment of a newspaper of which the hon. the Minister of Posts and Telegraphs is a director.

Is that not democracy?

Oh, I see, it is democracy. Now this speech was published and of course there was a reaction in the Press. There was. bound to be a reaction to it. We have this reaction from a fellow Sunday newspaper, in banner headlines. It said—

Order! Is that not going: beyond the scope of the motion?

My point in raising this is that it is not apparent, as the hon. the Minister of Finance said in 1944, that this is being carried out.

I am afraid the hon. member is going beyond his own motion.

I am trying to point out the reaction of the public, through the Press. Then the newspaper took the opportunity to discuss the situation that occurred some years ago, when the same Afrikaans publishing company wished to produce a newspaper and the Prime Minister of the day, Mr. Strydom, brought pressure to bear on them not to do so. I will quote now from a paper of some standing, the Financial Mail. I think the Financial Mail is a client of Dagbreek-pers, because according to a statement I saw in the Press recently, the Financial Mail is published by one of the Dagbreek-pers companies. This is the comment from a financial paper—

I propose now to deal with the two mutual insurance companies, and that will give me very great pleasure indeed.

I come first to the company that has had a remarkable record and which has now become a mutual company. I am going to speak about Sanlam, a company that every South African should be proud of. We should think of the great record of Sanlam. I was able to assist in a very modest capacity when Sanlam became a mutual company a few years ago.

Now for the poison. Go on.

About Sanlam? No, there is no poison about Sanlam. It is a magnificent company and it gives me the greatest pleasure to speak about Sanlam. My purpose in referring to Sanlam is to show that Sanlam over the years, after becoming an insurance company, has developed in a magnificent manner to become a great finance company, and they advertise it. There is no secret about it. It is advertised in a supplement to the Financial Mail. Sanlam and 11 other companies are associated in this. It is a great investment company for which the Minister of Finance should be very grateful after his experiences in June last year, because Sanlam played a magnificent part on that occasion. Sanlam has companies that do underwriting; there are investment companies; and I will say this for Sanlam, that when they have established a company they immediately have it listed on the stock exchange. The record of Sanlam is one of the finest this country has known. Referring to its most recent company, Samkor, Sanlam explains their method of operation, which is to encourage the public to invest in these companies and then float them off as independent, exactly as a mining group does. It is a great group of companies. I would like to be a director of it. I think it would be a very great honour indeed. I want to say how Sanlam invests its money through its associated companies and I want to give an example which was printed in the Press. Everything is printed in the Press and anyone who wants to read it may do so. They have invested money in the following companies: Bonusbeleggingskorporasie van Suid-Afrika Bpk.—and they give the amounts; I will not quote all the amounts. In this case it is R937,000. Then there are Federale Volksbeleggings Bpk., Federale Beleggingskorporasie Bpk., De Beers Consolidated Mines, Anglo American Corporation of South Africa, General Mining & Finance Corporation, Rand Mines Ltd. The spread is so great that in this chart, which hon. members will find on page 22 of this supplement to the Financial Mail, they give the whole framework of their company. They finish up with this sentence—

Well, no one can say that is a mutual company in the old sense of 50 years ago. As far as I am aware, no Minister has ever been a director of the company. Well, that is the record of Sanlam and a magnificent record it is.

I come now to the second of these companies, and of course it is the South African Mutual. Well, there is a great company! What a pair of twins they are in the financial development of South Africa. Where would South Africa have been in June last year if there two great institutions had not shown complete confidence in the future of South Africa? I want to say a word about the South African Mutual, because it also has a magnificent record. I quote again from the Financial Mail. It praises the chairman of the company for giving such a great deal of information. Mr. Speaker, the Stock Exchange Committee of Johannesburg is always urging upon chairmen of companies to give more information to the public. The South African Mutual puts all the cards on the table, and I have the greatest confidence in a company of that nature. This is their short comment on the annual speech at the annual general meeting of the company—

How true that is, and how much we owe to these two great companies!

Now I want to give some idea of the scope of the Old Mutual Company and I quote now from the annual report of the chairman—

Then he refers to taxation and says this. The chairman was discussing the taxation imposed last year by the Minister of Finance and he said this—

There is a conflict of loyalties. Should a Minister, a member of the Executive, be a director of that company, on which side would he be in making representations to the Minister? On which side is he when objections are made to taxation?

I now want to mention the associate companies. These are some of their subsidiary companies and associate companies: South African Mutual Fire and General Insurance Company Ltd., Old Mutual Fire and General Insurance Company of Rhodesia (Pty.) Ltd., South African Mutual Finance Corporation (Pty.) Ltd., The Old Mutual Investment Corporation of Rhodesia (Pty.) Ltd., The Old Mutual Building Societies in the Federation. Nothing pleases me more than to think that we are not only asking for foreign capital to come to us, but we are capitalizing new enterprises in Africa. It is a company of which we should be very proud.

Now that is the record I have. The question that arises is: What is the remedy? I want to quote, first of all, a statement which was made by the hon. the Leader of the Opposition, which is really my theme. It is a statement he made some years ago—I do not think it was in this House—giving what he considered was the right approach. He said this—

I now come to the recommendation made to the Prime Minister, General Smuts, when the subject was introduced by the present Minister of Finance, and this was his suggestion to General Smuts—

He took the British Government system as his model. He also gave us the background, the manner in which they arrived at their system in Britain. They did not arrive at it overnight; it was built up over the years. In the days of Palmerston a member of the Cabinet could do whatever he wished, but then there came Prime Ministers of the calibre of Disraeli and Rosebery and Gladstone, who tried to evolve a system whereby Cabinet Ministers could be bound. Then again we had those dark ten years of British Government, disastrous not only for Britain but for South Africa, from 1895 to 1905, when the Liberal Party persisted every day in pressing the Balfour Government and the Salisbury Government to give them a system similar to what they were working towards. Then with the change of government in 1906 Campbell-Bannerman took steps to define the duty of a Cabinet Minister, and from then they went on improving. I want to give their final decision and I am now quoting from the House of Commons Hansard, Vol. 496, page 702, in which Mr. Churchill, the Prime Minister of the day, laid down instructions and a new rule of conduct for Cabinet Ministers. Mr. Churchill covered the whole ground, shareholders, shareholdings, partnerships, etc. I am going to quote only his rule for directorships—

I think I should like to recommend to the hon. the Prime Minister that this system should be introduced into South Africa. I move.

I second. Mr. Speaker, I do not think there can be much difference with regard to the principles on which this motion is based. I think we can at least start by agreeing on both sides of the House as to the principles which ought to govern this matter, and I cannot do better than to quote the principles laid down by Sir Winston Churchill in 1952. He laid down the basic principles as follows—

You will notice, Sir, that it is not only a question of a clash of interests; there must also be no semblance of a clash of interests. I am sure that everybody in this House will agree with that basic principle which ought to govern public life in all democratic countries. The difficulty arises, of course, with the application of that principle. That is where there might possibly be a difference of opinion. I may say that in 1944 when he also raised this matter, as I shall show later on, the hon. the Minister of Finance also accepted this principle which is set out very clearly here by Sir Winston Churchill. The question is how this principle should be applied; how it affects the position as it obtains in South Africa to-day. There again Sir Winston Churchill tried to define the practical results of the application of such a general principle, and I can do no better than to quote this to the House. He gave specific examples as to when such a clash may arise between the public duties of a Minister and his private interests. In paragraph 2 of his statement he goes on to say—

There we have one specific case where there may be a clash between one’s public duties and one’s private interests, if one actively takes part in any undertaking which may involve contractual relationships with the Government and particularly with one’s own Department. He goes on to say—

So the rule in England goes much further than this motion. It also includes philanthropic institutions. Then he goes on to say—

The rules laid down by Sir Winston Churchill are, of course, general hints as to conduct, and I think very few of us would differ from those principles. When it comes to the question of directorships, as the hon. member for Kensington (Mr. Moore) has already pointed out, directorship of any company which may possibly have contractual relations with the Government, at least in the opinion of the British Government, is covered by this general rule, because directorships are specifically singled out as the type of thing that may lead to a clash of interests or an apparent clash. And no wonder, because I think it is probably generally accepted that when one is a director of a company, one is supposed to take an active part in the activities of that company.

Are you speaking from experience?

I cannot speak from personal experience but I speak from the experience of other directors whom I know. I think we must assume that it automatically follows that a director takes an active part in the activities of his company, and that is why it was specifically laid down in England that is one of the activities in which a Minister may not take part. Apparently there is no exception to this rule there, and indeed that was also accepted by the present Minister of Finance in 1944 when he raised this matter. As I understand the position, the present practice—I am not sure of this but it looks as though that is the position judging by what was said in this House previously—is that only two types of directorships are excluded from this general rule that Ministers may not hold directorships, and those two cases are newspaper companies and mutual assurance companies. But I should like to hear from the Minister whether the rule is limited to those two types of companies, because it appears from the report of the committee which went into the remuneration of Members of Parliament that they are of the opinion that the scope of this rule has now been extended and that there is no longer a limitation to-day. It appears from this report, from which I propose to quote in a moment, that this rule that only newspaper and mutual assurance companies are excluded is no longer being observed strictly, but I take it that in that connection the Minister will give us an assurance. I want to confine my remarks to these two cases of newspaper companies and mutual companies.

These exceptions can only be reconciled with the rule if we accept that these two types of companies never have contractual relations with the Government or with Government Departments and that their interests never clash with those of the Government or with those of Government Departments. I do not know what the position was when this rule originated, but I think that the activities of these two types of companies have expanded so much over the past 40 or 50 years that there can be no doubt to-day that sooner or later cases must occur where their interests clash with the public interest or where they have contractual relations with the Government. The hon. member for Kensington has already pointed out that to-day these mutual companies are huge investors, that their investments extend over the entire economic life of South Africa, and that there is hardly any Government measure which does not affect the interests of these companies in some way or another. It almost looks as though the converse may also be true, and that is that some of these companies have developed to such an extent that their activities may have an effect on public life. The hon. member for Kensington has already given examples to show what a great role these insurance companies played last year in bolstering up share prices on the Exchange when there was a great danger of a collapse of share prices. I think that goes to show to what extent circumstances have changed; it goes to show that whereas perhaps 50 or 60 years ago mutual companies did not play a big role in the economic and national life and that perhaps there was no great possibility of a clash between their interests and the public interest, that state of affairs no longer exists to-day. Originally, to give just one example, mutual companies were not taxed, on the principle, of course, that the income and the assets of mutual companies belong to all the members; there was no reason therefore to subject them to taxation. But the State itself accepts that is no longer the position to-day, and at the present time mutual companies are subject to a certain amount of taxation. There again, when it comes to the question of taxing such a mutual company, the interests of the directors of that company must clash immediately with the interests of the State, or there is at least a possibility of a clash between private interests and the public interest.

Then I come to the question of newspapers. Many years ago newspaper companies may have confined their activities to the issuing of newspapers but, as the hon. member for Kensington has already indicated, they have considerably extended their economic activities; to-day they are big printing concerns which enter into contractual relations with the Government on a large scale. But it is not that development only which places newspaper companies in an entirely different position today from that occupied by them 50 years ago; there have also been other developments in the world as far as newspapers are concerned. Take the question of television. In England and in America and in Australia experience has shown that the advent of television has had far-reaching effects upon newspapers and magazines. In England the newspapers have found that the tremendous development of television has had a very detrimental effect upon the income that they derive from advertisements. In England and also in other countries the advent of television resulted in many magazines, some of which had been in existence for 50 years or longer, being ruined financially as the result of competition from television. In South Africa the decision as to whether or not we are going to have television rests entirely with the Cabinet and with certain Cabinet Ministers. How can they argue then that their private interests as directors of newspapers do not clash with the public interest when it comes to this question as to whether or not we should have television in South Africa? How can they possibly argue that they are able to give a completely independent decision in that regard? Humanly speaking it would be almost impossible for them to do so. But even if members of the Cabinet are so far above ordinary human beings that they are able to separate their private interests entirely from the public interests, there still remains the second part of this rule. The rule is not only that one’s private interests must not clash with the public interest, but that there must not even be a semblance of a clash of interests because, like Caesar’s wife, Cabinet Ministers must be above suspicion; that is obviously the rule and it is also a rule which the present Minister of Finance, as I shall indicate later on, himself affirmed and accepted in his speech in 1944. Here we have a blatant case of a possible clash between the interests of Ministers, if they are directors of newspaper companies, and the public interest, namely in connection with this question as to whether this country and the public should be allowed to have the benefits or the disadvantages of television.

I am trying to approach this matter as objectively as possible, but it may be said perhaps that we want to make political capital out of this matter.

Hear, hear! You are quite right there.

I have tried to confine myself to principles, and if the hon. member for Mossel Bay (Dr. van Nierop) does not agree with any of the principles that I have set out, then he can tell us so in a moment. I have confined myself so far entirely to principles.

The trouble is that you are hinting without making a direct attack.

He lacks the courage to make a direct attack.

Mr. Speaker, I expected that interjection because hon. members on that side have no other argument; all they are able to do is to make personal attacks upon me; in principle they cannot oppose this motion; that is the simple reason. The Minister will find it impossible to oppose this motion in principle.

All you do is to hint.

Let us assume then that I am hinting: I am going to quote now from a certain report and then I should like the hon. member to tell me whether these persons were also hinting. The hon. member for Standerton (Dr. Coertze) has no doubt heard of the committee which went into the question of the remuneration of Members of Parliament; I think he is aware of the finding of that committee that generally speaking Members of Parliament are not adequately remunerated and that their remuneration should be increased. As far as I know the hon. member also agreed with the recommendation of the committee; as a matter of fact, as far as I know the whole of the House agreed with the committee’s recommendation. What were the terms of reference of that committee? The committee’s terms of reference were—

As I have already said, we unanimously accepted the recommendation with regard to higher remuneration. Although there was no specific reference to the question of directorships, we nevertheless find this very interesting paragraph in the report, and I should like the hon. the Minister and the hon. member for Standerton to tell me now whether these hon. persons, Mr. Justice Ogilvie Thompson and Mr. Louw and Mr. Clive Corder were also reflecting upon the Cabinet—

The same principle was announced by Mr. Churchill in the British House of Commons namely, that in modern times a Cabinet post is such a full-time post that Cabinet Ministers ought not to take part in any other activities. Here we have a statement on the same lines. The committee goes on to say—

I should like the hon. the Minister and the hon. member for Standerton to tell me now whether the committee was hinting when it made that statement. Were they also casting reflections when they said just what I have said here—

It would appear from this that this rule is not being strictly observed at the present time. When we look at the composition of this committee we find that at least two of the members of the committee are persons who have an intimate and personal knowledge of the activities of newspapers and of insurance companies, and obviously they arrived at the same conclusion as that contained in this motion. I know, of course, that there is one argument which can be used by members who wish to oppose this motion. As I have already said, on the general principle as to what is sound in public life, this motion cannot be opposed; it can only be opposed on two grounds. The first ground we have already heard from hon. members on the other side and that is that we are making covert references to members of the Cabinet. Do hon. members not realize that if we reflect by innuendo on members of this Cabinet—and that is the last thing that I wanted to do—then we also reflect on every Cabinet that South Africa has had in the past, including our own United Party Cabinets of the past? Even though directorships of newspaper and mutual companies were the exceptions to the rule in the past, it might have been unsound even in those days, but in any event the position has changed such a great deal that to-day it is much more undesirable than it was in the past. That is the simple position. There is only one argument which can possibly be used and that is that this is a sort of vested right which members of the Cabinet always enjoyed in the past. But I think we have taken away so many vested rights in this House over the past ten years that here we have a case where we can accept that this is not a sacred, sacrosanct vested right, for the reason which I have already mentioned, and that is that the circumstances surrounding these two exceptions have changed to a very great extent in the past 50 years. On the other hand, surely nobody would deny that the duties of a Cabinet Minister to-day are much more onerous than they were in the past. A Cabinet post to-day is much more in the nature of a full-time post. That is why the remuneration of members of the Cabinet and Members of Parliament was increased considerably on the recommendation of this committee. New circumstances have come into the picture in the meantime.

The integrity of Cabinet Ministers and of Prime Ministers in South Africa has never been queried hitherto by anybody in the whole world. That has been one of the main factors which has inspired confidence in the Union of South Africa. In this regard I can testify from personal experience; overseas investors have said to me time and again that South Africa is almost unique amongst the young developing countries from the point of view of the absolute integrity of our Government and of our Public Service. If the hon. the Minister will look at this motion in the right spirit, instead of accusing this side of seeking to make covert references to Cabinet Ministers, and of seeking to make political capital out of this matter, then he ought to welcome this motion, because this is the trend of development in all democratic countries in the world to-day. The hon. member for Kensington has indicated how this principle has been extended in England, so much so that to-day Cabinet Ministers in England may no longer hold directorships. Other democratic countries have gone even further and said that Cabinet Ministers may not hold directorships and that they may not hold shares in companies which may have contractual relations with the Government. In England the rule even goes so far as to say that if you have a majority shareholding in a company, or a shareholding which gives you control of that company, you ought to resign as director of the company. This motion is simply designed to ensure the maintenance of this high level of integrity which all Prime Ministers and all members of the Cabinet have maintained up to the present time in South Africa. I can do no better than to quote what the hon. the Minister of Finance said in 1944. I hope that the hon. the Minister and the hon. member for Standerton are not going to tell me now that the Minister of Finance was also hinting in 1944, but the remarkable thing is that in 1944 the present Minister of Finance adopted the same attitude that we are adopting to-day.

That was because the then Government had no policy.

If the hon. the Minister reads the whole debate he will find that the traditional exceptions were those two cases.

The Minister of Finance simply wanted the then Government to lay down a firm policy.

I should like to try to convince the hon. the Minister by quoting from the speech of the present Minister of Finance. It was not a question of his wanting the Government to lay down a policy; his attitude was that no Minister ought to hold directorships.

No, his main object was to get the Government to declare its policy.

Let me quote what the present Minister of Finance said and then the hon. the Minister can judge for himself whether he is right or whether I am right. It will serve no purpose to argue as to what interpretation should be placed on the words of the Minister of Finance. Perhaps I should start by quoting the summing up which was given by the hon. the Minister of Finance at that time. He said—

That is our whole attitude. The hon. the Minister says that a definite policy has now been laid down; he must tell us what that policy is, because if one accepts what was written by the committee which went into the remuneration of Members of Parliament, then it would seem that this rule is no longer being observed, because the committee says—

Can the Minister tell us whether the rule that directorships of mutual companies and of newspaper companies are the only two exceptions is definitely being observed at the present time?

Yes, that is the rule.

The question is whether this rule is being observed, because apparently that was not the opinion of this committee.

If you agree with that view, mention the exceptions then.

There are certain insurance companies, of which Ministers were directors in the past and which are certainly not mutual companies.

There is not a single Minister who is a director of any insurance company which is not a mutual company.

Yes, at the present time, but are there no Ministers who a year or two ago were directors of insurance companies which are not mutual companies?

You are talking now about what happened under United Party rule.

No, I am talking about the Union Guarantee and Insurance Company. Is that a mutual company? Can the Minister give me a definite reply? I do not think that there was ever a Minister, while the United Party was in power, who was a director of a company which was not a mutual company. We do not say that the practice in the past was correct, and in any event circumstances have greatly altered. But the Minister of Finance even went so far that he was obviously not prepared to accept that newspaper companies and mutual companies should be excluded from this rule. That is clear from his speech because he makes no reference to these exceptions in the course of his speech. This is what the present Minister of Finance said in connection with the then Minister of Finance—

The hon. the Minister of Finance also mentioned the question of insurance companies here.

No, I do not think that is stated there.

I just want to find the reference.

I shall give you the reference when I reply.

There is no doubt that in his speech in 1944 the Minister of Finance had no intention of excluding newspaper and insurance companies.

But why did you refuse it then?

Perhaps that was a mistake, and as a matter of fact General Smuts did not refuse. It seems to me that whenever the United Party did something in the past which suits hon. members on that side, then it must have been a good thing; if it suits the present Government then everything that the United Party did in the past was good and proper, but if it does not suit them then it was a bad thing.

Heads I win, tails you lose.

I say again that this is a matter which the Minister should not tackle in the petty spirit which he revealed here a moment ago. This is an honest attempt to place the integrity of our public life on a higher level, and I hope that the Minister will accept this motion in that spirit and reply in that spirit.

I think it is just as well that I reply immediately to this debate otherwise it may develop into a totally unnecessary one. I want to start immediately with the hon. member for Jeppes (Dr. Cronje) who has just sat down. By way of interjection, I told him that the real and practically only reason why the Minister of Finance raised this matter in this House at that time, was because the then Government had no policy whatsoever in respect of this matter. One should perhaps not hold that against them because the then Government suffered from a lack of policy in respect of other matters as well. As far as this matter was concerned the then Government had no policy whatsoever, and all the hon. the Minister of Finance wanted at that time was that the Government should state its policy as to what it envisaged in this respect as far as members of the Cabinet were concerned. Hon. members denied it when I said by way of interjection that was the attitude which the hon. Minister had adopted at that time. I wish to refer the hon. member to the speech made by Dr. Dönges, the present Minister of Finance, in col. 3637 of Hansard. The hon. Minister said this—

A little further down he said this—

That was the whole basis of the attitude which the Minister adopted at the time. It is true that as far as this matter was concerned he did give certain policy directives but the main object of his speech was to get the Government to state its policy in respect of something where they did not have a policy at that time.

Nor do they have one to-day.

This becomes very clear later on from the reply given by General Smuts at the time; he said that he could not accede to the request of the present Minister of Finance and said this in col. 3647—

In other words, the then Government had no policy whatsoever—exactly what Dr. Dönges had said in his speech.

But Dr. Dönges went much further.

Yes, he did give certain policy directives in an attempt to get a Government which did not have a policy to formulate one in respect of such a subordinate matter as this.

You are now dragging in politics.

No, the hon. member should not accuse me of dragging in politics. I wish to say this to the hon. member and to the hon. member for Kensington (Mr. Moore)—and I wish to repeat what I said by way of interjection—that we have had nothing else than insinuations from them. There is a very apt expression in the English language which I want to remind the hon. member for Kensington of and it is this “Ever ready to hurt but afraid to strike”. That was the trend of the hon. member’s speech: “Ever ready to hurt but afraid to strike.” Hon. members did not have the courage to make any direct accusations or anything like that. Hence the attack we have just had on the hon. the Prime Minister, to which I shall return in a moment. It is very clear from General Smuts’ own words that the United Party had no policy. He goes on and says this—

That, of course, was a euphemism, because I never knew that if you did not have a policy, it was fixed policy not to have a policy! He goes on and says this—

It is very clear, therefore, that what Dr. Dönges wanted when he spoke—and it was well and good that he did so—was that the Government should adopt a stand and that they should for mulate a definite policy in that respect. General Smuts was not prepared to lay down a policy in this connection. But this Government has been prepared, however, to lay down a policy and there is not a single hon. member in this House or outside who does not know that the Government’s attitude has always been—and it is there for everybody to see clearly—that a Minister, in spite of the sacrifices which he may make otherwise to get into the Cabinet, should relinquish all directorships and that there are only two kinds of directorships which he may accept or retain if he has them, and those are in respect of mutual companies and newspaper companies. That is the traditional policy which has always been followed in South Africa, except, as I have said. in respect of the previous Government who did not have a definite policy in this regard. But as far as newspaper companies are concerned, the position has always been that Ministers could be directors of those companies and I think it is right and proper that Ministers should serve as directors on newspaper companies. To be honest, I want to go so far as to express the hope that members of the Opposition will be invited to service as directors on the English language Press. That may bring about a change in the attitude of that Press. I am very serious when I say that I am definitely in favour of it that members of Parliament and Ministers should be directors of newspaper companies. In my humble opinion it can have nothing but a beneficial effect on those newspaper companies.

As far as mutual insurance companies are concerned the position has always been, not only during the regime of the National Party Government, but also during the regime of the United Party Government, that Ministers have served as directors of mutual companies. Hon. members are aware of the fact that the Minister of Lands is serving on such a company just as the hon. member for Green Point (Maj. van der Byl) served on such a directorate during his time. I find nothing wrong with that at all. To be honest I think it was one of the wisest steps which the hon. member for Green Point took when he remained a director on becoming Minister at that time.

The hon. member for Kensington (Mr. Moore) tried in the first instance to drive in a wedge between the Dagbreek Press on the one hand and the Vaderland on the other hand. Let me tell the hon. member that better men than we have already tried to do so without success. Nor will the hon. member succeed in driving in that wedge the way he tried this morning. In the second instance I accuse the hon. member and say that the attack which he has launched on Dagbreek and on the Transvaler, that is the Voortrekker Press, has to some extent been inspired by jealousy, jealousy of the good progress which these newspaper companies are making under the ministerial directors which they have, because the hon. member remembers, of course, that during their regime there was also a newspaper company of which Ministers were directors. I refer to the Suiderstem. It went insolvent thanks to the two United Party Ministers who served on its board of directors. But what I resent particularly in the speech of the hon. member for Jeppes (Dr. Cronje) is that he went out of his way, very far out of his way in his characteristic manner, to tell us which contracts had been given to Dagbreek and the Voortrekker Press in respect of certain Government publications. Not only did he mention the names of the publications, but you will remember, Sir, that he also gave us the amounts connected with those contracts and that he eventually shouted out in this House what the various amounts were which were concerned. If the hon. member wishes to deny that my charge is correct that this is a question of “ever ready to hurt, but afraid to strike” why did the hon. member not tell the House that he wanted to state it quite clearly that those contracts were not given to them as a favour—because he knows it—but that they had obtained them by tender? The hon. member knows that, doesn’t he? Nor does he deny that is the position. He accepts that the position is that they went to those companies by way of tender. Am I correct?

I shall have an opportunity of replying.

Surely the hon. member can just tell me whether or not he denies my statement? But the whole argument of the hon. member—what I have against him is not so much what he said but what he did not say—in mentioning the publications was to mention the amounts which were paid for those publications, and then he simply left it in the air. What conclusions must you draw from that, Sir? The only conclusion you can come to is that a favour was done to those companies when they were asked to do the printing because the hon. the Prime Minister is the chairman of the board of directors. That was the only impression he wished to create. I lay this charge against him that was the only impression he wanted to create with his speech. While I agree wholeheartedly with General Smuts that our public life has always been beyond reproach, that it has been beyond reproach in the past and still is to-day, this is a mean insinuation to make by leaving it in the air like that. I make bold to say. and one is very grateful for it, Sir, that there have never been any complaints, not in the past nor to-day, that Ministers have in any way abused the positions they have occupied in respect of mutual companies or newspaper companies. Seeing that hon. members know that, seeing that hon. members have never yet levelled a definite accusation for the simple reason that no accusations can be levelled. why do they lower the standard of this debate, why do they make these insinuations, why do they leave things in the air as they have indeed done?

Why not treat all directorships alike as far as Ministers are concerned?

Surely it is obvious why all directorships cannot be made available to them, the reason being that other directorships have to do with the commercial world and other spheres in general and because Ministers may become involved. Surely the hon. member understands why we have had this development. The reason is that our newspaper industry is intimately concerned with politics and political developments. That is, the reason why a Minister may serve on the board of directors of a newspaper company. That was the position during the time of the United Party and that is the position in our time. They are flourishing during our time but they went insolvent during your time. That is not the fault of the system. You must seek the fault elsewhere.

The position in respect of mutual companies is also not something which has developed yesterday or the day before, but it has developed over the years. I listened attentively to the hon. member and he did not advance a single argument why it was necessary at this stage to depart from the policy as far as mutual companies were concerned.

Does the hon. the Minister not think there may be a clash between television and newspapers in future? That is something which we have never had in the past.

For the moment I definitely agree that there may be a clash. But I do not know what the future of television is going to be. But surely the time to consider that will be if and when television is introduced. Surely the hon. member does not expect me to believe that they are holding that up as the reason for their motion, namely that they are worried about television in the future? No, that is nothing but an ad hoc idea which has suddenly occurred to the hon. member, because they really had no other reason for introducing their motion. I want to call the hon. member for Green Point as witness. He was a director of a newspaper company and he will admit that a director of a newspaper company does not interfere with the administrative side of the newspaper as such. That is the position in respect of all newspaper matters and that is also the position in respect of the newspaper on which Ministers serve at the moment. The hon. member knows, because he has also been concerned with such a newspaper, that the Suiderstem had Government contracts at the time and that those contracts were not given to it as a favour or whatever the case may have been, but it got those contracts because the Tender Board had awarded the contract to it.

Reference has been made to the remarks made by the hon. the Prime Minister in respect of Sondagblad. Surely it is obvious from the whole speech of the Prime Minister that what he had in mind was not the business side of the matter. The hon. the Prime Minister said, and that was how it was understood, that what he had in mind was the political aspect, that it was a pity that two Afrikaans newspapers serving the same political cause appeared on the same day. Surely the hon. member knows that was why the hon. the Prime Minister made those remarks and that it had nothing whatsoever to do with the business aspect.

I think it is a good thing for Ministers to retain their directorships in respect of newspaper companies. To use the words of the hon. member for Jeppes, I believe that Ministers have acquired a vested right to be directors of mutual companies down the years, that has been the practice not only under this Government but under all previous governments which we have had in South Africa and that no case has been made out by the Opposition either in this debate or in a previous debate why we should change the position which has always existed. In the circumstances I am sorry in the first place that we have had this debate to-day and in the second place I am sorry that those insinuations have been made and left in mid-air. I am particularly sorry that we have ever had this whole discussion. This is not the type of discussion, no matter from what angle you view it, which benefits our public life in any respect.

What did the Minister of Finance say in 1944?

The hon. member simply cannot understand what I have stated very clearly. I have also read out to him that what the Minister of Finance had in mind at that time was to get a Government which did not have a policy, to lay down a policy in respect of this matter. I have gone out of my way to explain to the hon. member that we have laid down a policy in respect of this matter and I have told the hon. member what that policy was. However, I cannot hold it against the hon. member if he does not know what a policy is. For how many years has the hon. member been seeking a policy? If you will allow me, Mr. Speaker, the hon. member reminds me of a woman neighbour of ours some time ago who, in a perturbed state of mind, visited her neighbour and said to her “You know I am getting very worried about my old man; he is over 60 and he is still looking at young girls when they pass.” Her neighbour said: “Aunty, you should not worry about that, all men do that. They remind me of my dog. For years he has been running after every motor-car which he sees, and the day he catches one he will not know what to do with it.” That is the position with the hon. member. He has been looking for a policy for years, and one day when he catches one, he will not know what to do with it.

I have stated quite clearly—and we are not running away from it—that we raised the matter when we were in the Opposition for the simple reason that we wanted to get the Government to lay down a policy in regard to it, and I wish hon. members to realize that where we have laid down a policy, that policy is not only practicable but also reasonable. Why should we tamper with it? Why should we have this discussion on the subject? If they know of cases or if they feel that Ministers have gone beyond their powers in that respect, that they have abused their positions, I do not wish to deprive hon. members of their right to raise it. In that case hon. members will have the right to raise it and you would hold it against them, Sir, if they did not make use of that right. They will then be entitled to come to this House and criticize the Minister concerned. But where that is not the attitude which they adopt, where they do not have any such information at their disposal, where they know that nothing improper has happened or will happen, you ask yourself the question why this discussion has been started? In those circumstances I do not hesitate for a moment to say that this motion will not be accepted by the Government.

I am extremely sorry that the hon. the Minister has found it necessary to bring this debate down to the purely party political level. He dragged in party politics, which was completely unnecessary. It was obvious from the speech by the hon. member for Kensington (Mr. Moore) that he had no intention whatsoever to cast suspicion on anybody, and the hon. the Minister got down to even telling what might be after dinner speech jokes. Surely all of us who have read “Dear Abby” and her advice to young women, know the story of the dog chasing motor cars, and if the hon. the Minister has to tell a joke, he should tell us something new.

Then he went on to cast unwarranted suspicion against the hon. members for Kensington and Jeppes (Dr. Cronje), two hon. members who above all have in their speeches throughout their careers here shown themselves to be men right above any question of party spite or trying to besmirch another’s reputation or to do anything not in conformity with the highest dignity of the House. I think it was most unfortunate that he should have suggested that the hon. member for Kensington was, in an indirect way, trying to attack the honour of hon. Ministers. The hon. member for Kensington made it quite clear that was not at all his intention. I do not propose to bring this debate down to the same level as the hon. the Minister did and making this a party wrangle. I therefore need not deal further with the Minister’s speech, except in respect with certain other points I am coming to in a moment.

I first of all want to deal with the motion on its merits, except to say of the Minister’s speech that he never replied to the hon. member for Jeppes’ quotation from the Ogilvie Thompson Report on parliamentary emoluments. Surely the reason given there for raising the emoluments indicated this very thing, that was one of the points brought out in that report, but I noticed that the hon. the Minister never attempted to reply to that.

Because it was not relevant.

It was very relevant, but I do not propose to deal with interjections, because I do not want to bring this thing down to a party wrangle. There is one thing which all sides of this House I think will agree upon, and that is that South Africa has been extremely fortunate that she has never had any scandal or a suspicion of corruption in connection with any of our parliamentary leaders, right through from the start of Parliament in this country until to-day. That is a record which I think this honourable House can be justly proud of. The fact is, and I mention this in passing, that some of our leading men died comparatively poor men. In fact, I can think of one Prime Minister who for many years, with the wink of an eye, could have made a fortune, who had to be given a pension, or his widow had to be given a pension, when he died. I think that is something which this honourable House can be proud of.

I wish to say at the outset that I do not wish anything I say to be misconstrued into suggesting that the purpose of this motion is to create new safeguards to meet a new situation. The standard remains high as it always has been; but the conditions, as I will show later, have changed. My view is that the standard of financial integrity is as high to-day as it ever was, but the conditions have changed. In view of the quotation made by the hon. member for Kensington about General Smuts’ reply to the present Minister of Finance’s motion in those days that he did not compel hon. members to resign their directorships, and in view also of the Minister’s remarks that government had no policy and that the present Government now has set a policy, it might interest hon. members to know what the then Prime Minister’s policy in 1939 was. Sir, when I had the honour to be asked to join the Government, the Prime Minister asked me: What directorships have you got? I said that I was a director of a mutual insurance company, that I was a local director of one of the two main banks, that I was chairman of the then only South African hire-purchase organization from its inception, and of several other companies. He said to me: You must resign all your directorships, except the one of the mutual insurance company. The hon. Minister drew my name into this debate and referred to my directorship of a newspaper company. Let me tell him that I had resigned as a director of that newspaper company.

I only mentioned your directorship when I discussed the fact that Ministers as directors would not interfere with the ordinary administration of such newspaper companies.

He told me that I should hand in my resignation as a director of those companies bar the insurance society that same day, although I was Minister without portfolio and for 3½ years drew no ministerial salary, or allowances, although I had the same expenses as any other Minister, having to maintain residences in Pretoria and Cape Town as well as my own home.

Mr. Conroy remained a director.

I don’t know. I have not got the facts before me, but that is beside the point. I am sorry to bore the House giving these details but as my name has been dragged in I must state the facts. Because the Prime Minister in those days went on to say this, and I mention it because it has a bearing on what I am going to say later, he said a precedent had been created for Ministers to serve on mutual institutions, because in the first instance the Prime Minister of the old Cape Parliament had been a director the whole time he was Prime Minister, and another very highly respected Minister of his government was also a director of the same company at that time. He said that was a precedent that had been created, and further he went on to say: The fact is that those organizations are national institutions and you have no financial interest of a personal nature in that concern, and therefore any information you could give to such an organization could never be an advantage to it. But I must agree with the hon. member for Kensington that the position to-day has completely changed. To-day the mutual insurance societies—(a mutual society does not come under the Companies Act, but its wholly owned subsidiaries do come under the Companies Act)—differ largely from what they were in the old days. In the past they were merely straightforward life offices and any income they got was invested either in Government stocks, or in other preferred stocks, or in mortgages. Now the situation has changed, and I agree with the hon. member for Kensington that the mutual societies to-day have a very large number of subsidiaries. He mentioned some of them, and I need not go into that to-day. But some of those subsidiaries are purely investment institutions with a share and equity portfolio running in some cases into many tens of millions of rand. I can think of one which has a financial subsidiary wholly owned by the insurance company, and does come under the Companies Act, which has just increased its capital to R100,000.000. Now this is the point: The public can be misled into thinking that such an institution might get advance information from directors being Cabinet Ministers. That of course is not true. but using the Minister of Finance’s words when he was in the Opposition “to avoid the suspicion more than the actuality”, that is not desirable and he went on to say that they therefore should follow the British system. That is the point that I am anxious to make: To avoid suspicion. Of course there is no question of information leaking out from a Minister. I know of no case where information ever leaked out. I know for instance that in my days Cabinet colleagues would never attend a board meeting from the moment that the Cabinet started to discuss taxation proposals before the Budget. In fact, they went as far as this (and I am certain the same thing applies to-day) that they would not even allow their bankers or their stockbrokers to get into touch with them about their own personal affairs, during that period. They gave instructions to their private secretaries: If my stockbroker or my banker rings up from the moment the taxation proposals come before the Cabinet, you must not put them through to me. That was often for a period of three or four weeks before the Budget. That was the standard, and I am certain the same standard is maintained to-day. Nor would they buy or sell shares at any time during that period. A misunderstanding might so easily arise where the individual is completely innocent. Say for instance the Minister of Finance himself to-day were a director of an investment institution (and there is no reason why he should not be if his colleagues can, because, once taxation proposals are before the Cabinet, his colleagues know as much as he does) he would never, I am sure, attend board meetings during the period when such taxation proposals were being discussed by the Government. It may very easily happen however that during that same period the board found itself with a considerable sum of money for investment and entirely on its own initiative buys a large parcel of shares. Let us face the fact: Big national institutions to-day are not gambling concerns. They cannot play the market to see whether the market will fall or rise. It is their duty to meet the market day to day and invest money which is lying idle otherwise they would be gambling. It may be that the directors, on their own judgment or in intelligent anticipation, invest the money which their company has in, say, gold or brewery shares. I am using these two as an example. Say, shortly after that taxation is lowered on those two industries. That of course would “bull” the market. In that case would certain dirty-minded people not say: “Oh. of course, they must have known that there would be a lowering in taxation.” I am trying to put the case fairly as I see it. There is no question of us suspecting or trying to discredit anybody. You can have the position in the reverse. That same concern may shortly before (again in intelligent anticipation) sell a big parcel of, say, brewery shares and the taxation may be raised, which would “bear” the market and those shares will drop. The suspicion might arise in people’s minds that they must have had inside information. I again come back to the words of the present Minister of Finance to Gen. Smuts in those days—and I am sorry for the repetition—“avoid the suspicion rather than the actuality”. In such a case the public might not believe that it was a mere coincidence or intelligent anticipation. They would put it down to advance information. That is the danger. Such an event can unjustly strike a blow—I say unjustly and I mean just that—at the integrity of a completely innocent Cabinet Minister who happens to be a member of that board, although during the whole period when the taxation proposals were before the Cabinet he never attended a board meeting or gave a hint to any of the other members of the board.

Hon. members will remember that only a few years ago something like that happened in Britain, when by sheer coincidence an extraordinary situation arose. A director of the Bank of England (and as we all know the Bank of England set the bank rate) was also a director of a very big investment institution. He never attended the meeting of his investment institution when the decision was made to sell a large parcel of Government stock. The next day the bank rate rose by ½ or by 1 per cent. The result was, of course, that those stocks fell sharply to a point where they gave the same yield on the new interest rate pattern as created by the rise in the bank rate. He was party to the decision to increase the bank rate, but he had no idea that his investment company was going to sell that big parcel of Government stock. The fact is that it was nothing but intelligent anticipation on their part. They realized that if inflation goes on it is often necessary to raise the bank rate to try to curb speculation or over-expansion due to too much cheap money being available but that a rise in the bank rate would immediately “bear” Government stocks; so they sold a very big block. But what happened? There was a most frightly scandal in the city. Mud was flung at him. He was pilloried in many financial journals and in other newspapers with the result that a judicial commision was appointed, with a Judge in the chair. After careful investigation of all the records, it was found that gentleman was completely innocent, that he had not in any way given the slightest indication as to what was going to happen. But the mud stuck. It was not his fault at all. He had nothing to do with it. The question arose whether men who had any interest in any institution should sit on the Board of the Bank of England.

To show how coincidences such as this can affect completely innocent men may I just tell the House something which came to my own notice. It might interest them; it might even amuse them if they have a morbid sense of humour. I will call this financier Sir X Y and he told me this himself. He said that he was sitting next to a lady at dinner one evening whom he did not know. She inopportuned him by saying “Tell me, Sir X, in what should I invest my money?” At that time he thought diamonds were on the up so he said: “Madam, I should think you could not do better than buy De Beers ordinary shares.” He had misjudged the market, as he discovered two months later when De Beers shares to his horror started to drop and they steadily declined for the next few years. He told me that he avoided her like the plague after that whenever they happen to be at the same function. Then, he said, in the end she approached him at a cocktail party and said: “Sir X, why are you avoiding me? I have been trying to get hold of you to thank you for the wonderful information you gave me. You told me to buy beers and I put all my money into brewery shares and I have nearly doubled my capital.” Had she not misunderstood him and taken his advice he might have been blamed for something of which he was completely innocent.

I think the hon. member is getting very far from the motion.

Sir, with respect, I am coming to investment companies and Ministers serving on their boards as directors and I am trying to illustrate how, due to a coincidence or a misunderstanding, a Minister, without having in any way divulged any information, could be blamed for something with which he had nothing to do. That was what I was trying to show but I will drop the subject.

The hon. member for Kensington spoke about Ministers being directors of newspapers or newspaper companies. I have not the slightest doubt that such directors would not use their position as Minister to get the Government to place its advertising with those companies. I have not the slightest doubt that they never use their position in that way. But human nature being what it is, members of the public may try to curry favour by buying large blocks of advertising space in those newspapers out of all proportion to the value they will get for it.

Minister Stuttaford was a director of the Cape Times.

That was probably why the Minister of Finance, Dr. Dönges, asked that it should be done away with at the time. Anyhow, the position is this that circumstances have changed greatly since then. I am arguing the case on its merits to-day, I do not want to draw politics into this; I want to deal with the matter entirely on its merits. Human nature being what it is, as I have said, an advertising agent or an employee of a company might use his position (or in order to get the commission) suggest to a prospective client that he should advertise heavily in this newspaper because that would have a pull with the Government. In that way we reduce confidence in our public men. I started off by saying that South Africa was fortunate that the integrity of our public men has never been questioned. I know that hon. members opposite are as anxious as I am to see that standing is maintained. Therefore, in the interests of all concerned and on its merits, in the light of changed conditions, since the precedent was created by allowing Ministers to sit on investment institutions which were originally simply straightforward life insurance companies, the positions should be reconsidered. And again I come back to Dr. Dönges’ statement of avoiding the suspicion rather than the actuality.

In conclusion, Sir, let me say this. This was raised by the hon. member for Jeppes (Dr. Cronje) so I will not go into it at any length. In America, of course, they are very much more strict. I think they are going too far there. Not only have they to resign from all their directorships but they have to sell all their interests in any particular company. I think that would be wrong because to start with, if a man is dishonest he can quite easily get around it by hiding his holding in a nominee. So that would not help.

Can he sell to his wife?

His wife might bolt; you never know, so that might be dangerous! I do not think the law allows that. Anyhow, he can quite easily get around it. He can sell to his son, yes, so it does not help. On the other hand the man who is honest and refuses to do that might feel that it is not worth while, for the sake of being a Minister for four years, to sell all his interests in a big organization. After all he has a responsibility towards the shareholders; if another chairman had served on the board the shares may not have been of their present value. He may well say “Well, I cannot take on the job” and the country would then lose the benefit of a first-class financial brain. Therefore I think that is taking it too far. The position may then well arise, as you find in some places in America, where you get professional or hack politicians, or men who have no other interests, governing the affairs of the country, which may not be in the interests of the country itself. Coming back to the motion. Sir, I do hope that we will consider it entirely on its merits. This motion is not trying to throw mud at any Minister or anybody else. That is not the slightest intention. I think I have showed that in my speech.

You have not dealt with mutual insurance companies.

I have, Sir.

The Minister was not here.

I will just put It in a nutshell again. Mutual companies were originally purely life offices, doing no other business but life insurance. They consequently had no investments except gilt-edge or approved stocks or first mortgages. To-day, every one of those mutual organizations has got large subsidiaries, subsidiaries running into tens of millions of rand. As I said: I know of one subsidiary which raised its capital to R100,000,000 a short while ago. They are investing tens of millions of rand in equities, stocks and shares. It would be of the utmost importance to them if they could get inside information. Inside information could make them decide to sell or to buy a big parcel of shares. The whole position has therefore changed. Every one of these institutions which was formerly purely a life office, is to-day through its subsidiary an investment company, which is something totally different. I do not want to go further into that.

I merely want to say that I support this motion entirely on its merits. In the past the public have had respect for our public men. There has never been a charge for corruption or a breath of suspicion in respect of any of them, either in the past or to-day. I support the motion entirely for the reason that conditions have changed to-day, not the situation.

I want to express surprise at the hon. the Minister’s reply to the debate which had taken place up to that time. He must surely admit, as has been stressed by every speaker on this side, that conditions have changed and that they have changed a great deal. In addition he has not answered the question asked by the hon. member for Jeppe (Dr. Cronje) as to whether or not he agreed with what was said in paragraph 46 of the report of the committee on the emoluments of Members of Parliament. In fact, by way of an interjection he said it was irrelevant. I do not think he meant that. In order to refresh his memory—I do not think he has this in front of him—I want to read out what that report said in regard to Cabinet Ministers—

The members of that committee, as we all know, were Justice Ogilvie Thompson, Mr. M. S. Louw and Mr. C. S. Corder. We could not have had a more eminent committee. They have quite definitely in those words expressed what I am sure is the view of the public outside. I cannot even gather from the Minister’s reply so far whether he accepts that it is essential to remove from the public mind the possibility of a suspicion that a conflict of interests can arise between a Minister’s duty as a Cabinet Minister and his interests as a director of a company. That suspicion must be removed as far as possible. Nor has he accepted in his reply that what was considered to be a Press company in the old days was a company publishing a newspaper whereas today the activities of certain of these companies have spread far and wide, in the same way as the mutual companies have developed. I propose to devote much of what I have to say really to the position of mutual companies.

Mr. Speaker, directors often, I can almost say usually, are not appointed on account of their business capabilities or their business acumen or for their general usefulness, but because they are well known and are expected to use all their power and influence to turn business to the companies which they are serving. One could in many instances say that the use of this influence is the prime consideration in their being appointed to these boards. What has happened in the last few years? The powers of members of the Cabinet are getting greater and greater all the time. Their word carries more and more weight in wider and wider spheres of business. There is no argument about that. In every activity, as has been pointed out before, in this country and all over the world, Government interference or influence, call it what you will, plays a more and more prominent part in our lives. It is essential that the Government take every possible step to remove the possibility of a finger of suspicion being pointed at them. Obviously in this instance the normal rules of conduct apply, but they are not nearly sufficient. It is not enough for a Cabinet Minister to disclose any private interests which he may have or not to take part in the discussion which deals with such an interest. He must be placed above suspicion. As everybody has said so far we have a record second to none in regard to public probity in this country. But the fact remains that this danger has been recognized all over the world. They ruled in 1906 in Britain—

That, of course, as has been said before, has since been extended and extended to a very great degree. I believe in 1931 the Nationalist Government relaxed the rule to an extent which allows retention of directorships provided no fees were paid. They themselves realized that was probably an unsound policy and it was changed to the present position.

As the present Minister of Finance said—I know this has been read before, Sir, but this is the essence of the matter—

He said that in 1944 and could not agree more. I suggest that the doctrine of uberrimae fides applies to the greatest degree in regard to any Cabinet position. The public honour, the honour of the whole of South Africa rests in the hands of the Cabinet and no stone must be left unturned to help them to uphold that honour. Mr. Speaker, since the Minister of Finance brought this matter up in 1944 there has been a tremendous change in the whole position. As I have said before, the Government’s influence has spread wider and wider in finance and industry, in fact, in every walk of life. Throughout the whole country you find Government influence getting deeper and deeper and wider and wider. One has only got to look at the Budget figures given to us on Wednesday together with the Railway figures to realize the enormous amount of expenditure which is controlled by this Government and its influence on the daily lives of the people. That influence is obviously regarded every day of greater and greater importance by business men. I accept completely that our protections in regard to this matter are as good as they are anywhere in the world. I think that the protection of the Tender Board is something of which we can be very proud, very proud indeed. That is all right, but the question of the influence of Cabinet Ministers is something which is on a different basis entirely. They must be helped to remain above reproach as they are now. As has been said before, human nature being what it is, a Cabinet Minister does not have to do much, as my hon. friend the member for Green Point (Maj. van der Byl) has said, to find himself in very hot water.

I want to get back to the mutual life insurance companies and point out how positions have changed in that direction. I think the reason behind the acceptance of the fact that directorships of mutual life insurance companies should be exempted was the thought that apart from the fees for services rendered they were rendering no additional service bringing any benefit to themselves. A distinction was drawn between that and the position of a director of a public trading company. Quite frankly I think that was a distinction that was wrongly drawn. In our Companies Act, under Table A, which is a pro forma set of articles which applies to every company unless they are specifically exempted, there is a clause setting out the qualifications of a director. And the qualification of a director is to hold one share. Now if he holds one share in the capital of a public company I cannot agree that his interests in that public company are any greater than the interests of a director of a mutual insurance company in the general running of that business. Particularly since the activities of mutual companies have extended to the degree that they have, it is essential. I think, that they should be removed from the exemption that is at present in existence.

I want to give you an instance, Mr. Speaker. It is a bit of imagination and after having read something in the Financial Mail. This is just to indicate how conditions have changed. Last year new financial restrictions were introduced in regard to oversea holdings. Our big mutual companies, of course, were affected by it. The Treasury in turn obviously had to make arrangements or agreements in certain instances that big insurance companies could retain assets outside the country because they in turn had liabilities outside the country. But it is not a blanket exemption, according to the article which I read, but they can apply and in certain circumstances get relief. I can imagine this happening at a board meeting where the chairman says: “I have explained the difficulties to you, gentlemen. We cannot get any further with the officials; they won’t see the justice of our cause. Cannot you, Mr. So and So (who happens to be a Cabinet Minister), do something about this?” You cannot hold that against the chairman of a public company, Sir. He is there to serve the interests of his shareholders or his policyholders. I do not think the Cabinet Minister should be put in such a position. I think it is absolutely incorrect. One could go on giving instances. The hon. member for Green Point gave many other instances in which Cabinet Ministers were put in invidious positions because of their interests in mutual companies.

Mr. Speaker, I do not think there is any difference between the position of a Cabinet Minister holding a seat on a board of a mutual insurance company and a Cabinet Minister holding a seat on a board of an ordinary public trading company. None whatsoever. He is sitting on the two boards as a private individual and as a Cabinet Minister his duty is to hold the scales equally for all. Surely it is not—I am using the words of the hon. the Minister of Finance now—in the interest of the prestige and dignity of the Cabinet that he should even be allowed to be put into that position.

There is no room for any exceptions in this matter, when you realize that in America the President himself disposed of his family holdings in his companies when he was elected President. I personally would go as far as that in this country. I have heard the arguments against it but I personally would go as far as that. I think it is becoming more and more difficult to maintain the prestige and dignity of the men who are leading us. Tongues are not getting any shorter. They are just as malignant as ever. The more the Government interferes with ordinary activities the more malignant tongues become. I think this motion must have the support of all right-minded men. Our Cabinet Ministers must be protected to the greatest possible degree from the tongues which I mentioned just now. It is the easiest thing in the world to spread slander and suspicion, but the unfortunate part is that whether it is justified or not, it reflects on the country as a whole and we want to maintain the proud position we hold in regard to this matter at present.

In conclusion I want to say that our Cabinet Ministers should have the fullest possible protection. Unless this motion is accepted they have not got it. They cannot be fully protected. Their own protection lies in their own own consciences and nowhere else, but at least, Mr. Speaker, if this motion is accepted it will be an additional shield and safeguard for their good name and incidentally the good name of our country.

It will not take me long to reply to this debate because there is very little to reply to. The Minister of Justice entered the debate as an apologist for the hon. the Prime Minister, but his colleagues, the men who have an interest in the government of this country, have not responded. They are told what they have to do, as they are told in their caucus. They have no opportunity of coming out with an independent view. We on this side have an opportunity of taking part in a private members’ debate as private members.

The hon. the Minister of Justice does not think that any change is necessary in the position of directors of mutual companies and of newspaper companies. Is it necessary for me to explain again that the newspaper companies have ceased to be newspaper companies in the sense that they were when that rule was accepted as the general rule? They have to-day become big publishing companies. I will mention another subsidiary of the Voortrekker Pers. Here is another extract that brings out the point I wanted to make. The Prime Minister, as chairman of the company, said this. He is speaking now of the new company—

They have a subsidiary company that is providing audio-visual education. They are providing books for the schools. They have ceased to be what they were in years gone by, newspaper companies.

The Nasionale Pers has been printing books since 1920.

The hon. the Minister does not think it necessary to make a change, but in what way do they differ from any other big publishing companies? I can see no difference.

Mutual companies the hon. the Minister studiously avoided—he did not make any mention of mutual companies. After I had mentioned the ramifications of Dagbreek, I took Sanlam as a perfect example, because there is no Minister who is a director. Therefore I quoted it as a perfect example of a company where a Minister could not be a director without being the director of a big finance company, a holding company. Dagbreek is a large holding company to-day. It is not an ordinary newspaper company, but the Minister of Justice does not seem to see any difference. He makes a big fuss in his speech about the fact that I left the contracts in the air because I did not say they were obtained by tender. I do not know how they were obtained. I presume they were obtained by tender. It would be monstrous if they had that work given to them without a tender. A contract must be entered into in that way because it is a Government contract. Surely that is the manner in which Government contracts are entered into and it is not necessary to labour that point. But that is beside the point. The point is this: Here we have the Prime Minister as chairman of a company which is in a contractual relationship with the Government, and that is undesirable.

Now, I did not attack Dagbreek and Voortrekker Pers any more than the Minister of Finance did in 1944. The Minister of Finance did not just introduce this motion, as the Minister of Justice has said to-day, to obtain a policy from General Smuts. He introduced his motion pleading with General Smuts to adopt the British system.

It was not a motion. He raised it under the Prime Minister’s Vote, in passing.

Quite, and he pleaded with him to introduce the British system introduced in 1906. Of course the hon. the Minister of Finance didn’t know about the British system introduced later, in 1952. It is quite clear that it was a constructive suggestion to General Smuts, whose reply was that he was going to carry on with the position as it was. He agreed with the Minister of Finance that something of the sort should be done and he said he would discuss it again with his colleagues. This has been a burning question for at least 20 years.

Now I want to say this in conclusion. No one has been accused. I am not accusing the Prime Minister or any other Ministers. There are other Ministers who are probably directors of these companies, but I am not mentioning their names. No one has made any accusation to-day, but what I am asking is that we should have a new rule of conduct in South Africa which would protect Ministers and make it impossible for them to be associated with companies in the capacity of director.

Motion put and the House divided:

AYES—33: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Cadman, R. M.; Cronje, F. J. C.; Dodds, P. R.; Durrant, R. B.; Field, A. N.; Fisher, E. L.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Lewis, H.; Malan, E. G.; Mitchell, M. L.; Moore, P. A.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Steenkamp, L. S.; Steyn, S. J. M.; Swart, H. G.; Taurog, L. B.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; van der Byl, P.; Weiss, U. M.

Tellers: H. C. de Kock and A. Hopewell.

NOES—69: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, H. J.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coertze, L. I.; Cruywagen, W. A.; de Villiers, J. D.; de Wet, C.; Dönges, T. E.; Fouché, J. J. (Jr.); Frank, S.; Greyling, J. C; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Jurgens, J. C.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Loots, J. J.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, G. de K.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Sadie, N. C. van R.; Smit, H. H.; Steyn, J. H.; van den Berg, G. P.; van den Berg, M. J.; van den Heever, D. J. G.; van der Merwe, J. A.; van der Spuy, J. P.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, H. J.; van Zyl, J. J. B.; Venter, M. J. de la R.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.

Tellers: D. J. Potgieter and P. S. van der Merwe.

Motion accordingly negatived.

I move—

Let me say at the outset that my motion is the logical corolary to the motion moved in this House on 1 August 1958 by the hon. member for Wynberg (Mr. Russell). That motion reads as follows—

The 1958 motion was concerned with preserving the legislative sovereignty of Parliament. It was designed to draw attention to the growing inroads being made on the authority of Parliament, as the legislative limb of the constitution, by granting delegated law-making powers to executive government and to other subordinate bodies such as local authorities, boards and councils of various kinds. My motion to-day is concerned with preserving what is known as the rule of law. It is designed to highlight the growing extent to which delegated judicial powers are being conferred on executive government, i.e. on Ministers and public officials, and also on subordinate authorities and even, in some cases, on the officials of subordinate authorities. My motion accordingly excludes those tribunals which are established and known as the ordinary courts of law, but it includes all special statutory tribunals which are part of the machinery of executive government and from which no right of recourse to the ordinary courts is granted or recognized by law.

Now, the rule of law is a convenient term for expressing that great principle of democratic government that no one is above the law and that everyone is subject to the ordinary laws of the land and to the jurisdiction of the ordinary courts of law. Expressed slightly differently, the rule of law means, in simple terms, that no one shall be deprived of his rights or his liberty without the opportunity of a fair hearing before a court presided over by skilled, independent and impartial judges. Just as the 1958 motion was not designed to bring to an end or to do away with the system of law-making known as delegated legislation or subordinate legislation, but rather with keeping it under control, so my motion to-day does not aim at ending or doing away with what has become known as the process of administrative justice, but rather with keeping it in check and under the control of Parliament in its capacity as the ultimate arbiter in all matters of government.

As regards the authority of Parliament in that connection, I wish to state two propositions. I think they are both self-evident and need no argument in support of them. My first proposition is this: It is a prime duty of Parliament to ensure that the exercise of governmental powers it grants must not be arbitrary, capricious or unrestricted, whether the powers that are granted be legislative, executive or judicial powers. If that is to happen, there is a duty on Parliament to remain master of the situation of its own creation.

My second proposition is equally wide in application, but I will narrow it down to the subject of delegated powers to special tribunals. So narrowed down, the second proposition is this: The potential danger of our system of administrative justice of administrative law arises from the failure of Parliament in having designed effective machinery of its own to control the system it has created. Because what is happening now is that once Parliament has created such a special tribunal, it loses all authority to exercise control over the actions of such a body. I submit that both these propositions are valid in principle. The problem is to translate principle into practice. That therefore is the reason why it has become necessary, as my motion says, (a) that the establishment and working of all these specially established tribunals which are part of the machinery of executive government should be examined, and (b) that the system of administrative law which has come into operation in South Africa should be subject to the ultimate control of Parliament.

There is really no need to quote examples of statutory tribunals of that kind in this country. In any case they are far too numerous and too varied to try to tabulate. In fact, it can fairly be said that the vesting of arbitrary powers in boards and bodies to give decisions has now become a “legislative habit”. One of the legal draughtsmen a few years ago expressed that same view to me in these words. He said—

I think that states the position very accurately. If we look through the Statute Book we will find many examples of what I am talking about but I think it will suffice for purposes of my argument to refer to just one statute. The Group Areas Act, about which this House has heard so much in recent weeks, established the Group Areas Board and that is a good example of a statutory body empowered by Act of Parliament to inquire into matters of fact, or matters of fact and law, and then to make decisions which affect the rights of individuals, or which involve civil consequences affecting the rights of the citizen. Prior to the coming into existence of the system of administrative justice, the ordinary courts were available to protect the individual against arbitrary action by the executive. That is one of the prime functions of a court of law. The courts of law therefore provided an effective restraint upon the exercise of executive powers. But it needs no demonstration by me that in legislation of this kind it has also now become legislative habit to exclude the jurisdiction of courts when tribunals of this nature are set up. But where, however, recourse to the courts is subject to no restraint, either expressly or by implication, in the law setting-up a statutory body clothed with powers of decision, no further remedy is called for. In those cases the traditional trinity of powers of democratic government then operates and the separation of the powers amongst the legislature, the executive and the judiciary is an adequate and effective protection against the invasion of the rights and liberties of the subject. That is why I also exclude tribunals which are established and known to be courts of law. But it is specifically to those instances where judicial review of administrative action is ruled out by the operation of the law that my motion applies.

Sir, one often reads in the Press about cases of hardship caused to the individual where arbitrary powers are misused by statutory bodies or authorities. Those cases usually arise where arbitrary power really becomes “arbitrary officialism”, and sometimes it also arises in a manner that was never intended by Parliament when it conferred delegated powers of administrative adjudication on bodies of that kind. As I say, there are many instances reported in the Press of cases of hardship, but I would prefer quoting from the judgments in two fairly recent cases to demonstrate what does arise in practice. I do so because, firstly, it obviates any dispute about the facts and, secondly, I think it also obviates any dispute about what had happened in those cases to the individuals concerned. I would like to stress at this stage however that for every one case that reaches the courts it is fair to say that there must be literally hundreds of cases that never come to court where the individual has to suffer in silence because he or she has neither the means or the courage to take the matter further nor the opportunity to protest effectively against any administrative injustice. It is therefore really a small number of cases which come to the courts; the bulk of administrative law affects the masses.

But they have the right to go to court.

No, they have no right to go to court. They are excluded from the right to go to court, except on a question of review, because so many of these tribunals are set up where there is a restraint on recourse to the court either impliedly or expressly in the statute itself.

You have it all wrong. They can always go to court.

My first reference is to a decision of the Appellate Division of the Supreme Court in the case of Welkom Village Management Board vs. Letema, 1958, (1) S.A. 490. In that case the individual had sought to protect his right to a trading stand which he had acquired by inheritance from a deceased brother in November 1954. The date, November 1954, has some significance. His applications to the Village Management Board for the grant of a trading permit were repeatedly and persistently refused. Action was ultimately taken against him and the matter ultimately reached the court in the case that I am now going to refer to. The history of that case is one which makes shocking reading. It is a bad case of “arbitrary officialism”. The applicant’s rights were finally protected by the Court of Appeal in December 1957, that is to say, after three long years of struggling against officialism and what I can only call bureaucratic tyranny.

The judgment is a long one and I do not intend to read it in full. I shall merely quote two salient portions of it. The first portion is on page 499 where the judge said this on behalf of the Appellate Division—

The Judge then goes on to say—

I will just quote one other short extract from page 505 where the Judge concludes his judgment and says—

Here we have a case which obviously could not easily reach the courts, and when it did reach the court, it reached the court because action was taken against the respondent to eject him from the two stands to which he claimed, and had a right to claim, according to the Appeal Court, a right.

He could have initiated proceedings himself, there was nothing against it.

I submit that the hon. the Minister is trifling with the situation, because the judges would have made a statement to that effect if it had been as easy as that.

Surely it is trite law that he could have gone to the court.

May I ask in what form.

He could have asked for a declaration of rights, for instance.

Very well, I will accept that is the position, that he could have asked for a declaration of rights after three years.

Surely he could have gone long before that. The courts are always open.

Yes, the courts are always open. I have indicated to the Minister and to this House that cases of this nature affect the masses and that only in relatively few cases has the individual concerned either the courage or the means to go to court.

Then you must have a Government attorney for the masses.

It does not affect the principle.

That might partially be a remedy, but do not let us anticipate my argument. Let me first proceed with my argument and let the Minister listen to my representations before making conjectures as to some aspect which I think might have some bearing, but very little bearing, on the subject of my motion.

The second case to which I wish to refer is the case of Sundarjee Investments v. De Vos Hugo, N.O. and Another, 1959, S.A. (2), page 367. In that case the respondents were, firstly, the chairman of the committee of the Group Areas Board and, secondly, the Minister of the Interior. In that case too the judgment is a lengthy one and I do not propose to quote it in full, but the headnote says this—

Here too a subject of dispute which had arisen in January 1956 reached the court, the Transvaal Provincial Division, in May 1958; judgment was given in March 1959, and as the matter was then referred back to the Group Areas Board, the applicant had to set in motion the proceedings all over again. So much for the Minister’s interjection that you have recourse to the courts. That is not the only remedy. Here the applicant had recourse to the court but because of the nature of the subject it had to go right back again to the very tribunal which was set up originally, and against which the applicant had to struggle from 1956 to 1959. The aim of my motion is to investigate this problem and to see whether we can provide a better remedy. It is not good enough for the hon. the Minister simply to retort that the applicant can go to court. I think I have made it abundantly clear that to go to court in any circumstances such as these is a difficult and a protracted matter; it is a matter in which a very heavy onus rests upon an applicant who wishes to preserve and to protect his rights.

Throughout this whole process of the establishment of administrative law, attempts have been made from time to time to try to distinguish between what are known as judicial, quasi-judicial, or administrative functions, but it has now become trite law that distinction is not valid. The court in the case of Hoek v. Venterspost Municipality, 1950 (1), S.A. 190, set out the law very clearly; it said—

I come back then to this question: What are the remedies? I want to make it quite clear that the problem is not one which is confined to South Africa alone. I think a striking feature of public law in most Western countries during the 20th century has been this development of administrative adjudication to give it its high-sounding name, or arbitrary officialism, to be a little bit more colloquial. But what is unique to South Africa is that this type of administrative justice usually affects the masses. What is unique in our case therefore is that the masses will invariably consist of those persons who have no representation in this House and who, I think, can therefore be described as the unenfranchised. I mention this not to make a political issue of the matter but merely to stress this important fact that it behoves Parliament in those circumstances to be extremely cautious in ensuring that justice can really prevail, that the Rule of Law can be preserved in the best possible way. As I have indicated, my motion is designed to achieve that because it is concerned primarily with preserving what is known as the Rule of Law.

Suggestions or remedies will arise in the minds of different people in different ways. One has been the suggestion that there should be created a special Administrative Division of the Supreme Court to which there can be recourse from these special tribunals on administrative action.

Is it a sort of equity court that you are visualizing?

No, I am not visualizing it myself; I am just indicating that is a suggestion which has been made both in this country and in the United Kingdom that there should be an administrative division. It is, of course, a suggestion which is based very much on the French law because the French law has dealt with this problem better and longer than any other country as far as I am aware. There it has built up a specific system of administrative justice and has provided a whole range of tribunals which can settle the issue certainly more expeditiously and presumably at less cost than in the two cases to which I have referred here. The Scandinavian Countries have dealt with the matter in their own particular way. The Scandinavian countries —Sweden in about 1909, Finland in about 1919 and Denmark in 1954—set up what they call an Ombudesmand. The 1953 revision of the Danish Constitution which came into effect in 1954 makes special provision for the institution of what they call the Folketingets Ombudesmand, which may be translated as “State Controller” or “parliamentary commissioner for civil administration”. The reason for setting it up there, which is also the problem which I pose to this House, was this—

This official, this Ombudesmand, has been given very wide powers of investigation. He is entitled on the receipt of a complaint or on his own initiative to examine any civil or State activity that may have emanated from any body of this type. Let me quote from a Hansard Society report on “Parliamentary affairs”, No. 2 of 1959, at page 201—

Then at page 203—

The Scandinavian countries, as I say, have set about dealing with the matter in their own particular way, and the system there is one which, from my slight knowledge of Denmark, works. That is the most important factor— the fact that it works. Serious consideration has been given to the question as to whether a similar sort of system should not be adopted in Great Britain. Great Britain, on the other hand, has dealt with the matter in its own particular way. I think that for the purpose of the record I should say that there was the “Donoughmore Commission on Ministerial Powers” in the United Kingdom which sat from 1929 to 1932 and then reported. Following on that there was what is known as the “Frank Commission of Inquiry on Administrative Tribunals”, which covered the period 1955 to 1957. Let me again quote from Hansard Society “Parliamentary Affairs”, vol. 12, Nos. 3 and 4, at page 323—

I have read this to indicate that this is precisely what I am asking in my motion should happen here. The Frank Commission did firstly inquire into a prevailing system of administrative law, and it carried out that inquiry with a view to bringing about uniformity of procedure and to safeguard the rights of citizens. In consequence of that Commission of Inquiry legislation was passed in the United Kingdom, known as the “Tribunals and Inquiry Act of 1958”, which incorporates provision for this sort of appeal tribunal, but it was particularly designed to keep the constitution and the working of tribunals under continuous review and to exercise certain specific functions in relation to statutory enquiries.

Sir, the problem that I have posed is, I think, a serious one. I think it is serious in any circumstances but it is made more serious for the reasons given by me, namely that in a country such as ours where the masses who are affected by tribunals of this nature have no representation in Parliament, a very special duty is cast upon this House to ensure that administrative justice does not develope into arbitrary officialism or, worse still, into administrative injustice. I therefore commend to the hon. the Minister the various suggestions that I have made, or that emanate from the documents which I have quoted. I hope the hon. the Minister and the Government will agree the time has come when there should be an examination into the establishment and working of tribunals with a view to introducing legislation to bring about uniformity in procedure and to safeguard the rights of citizens under a system of administrative law which I say has grown, is still growing and ought to be controlled by Parliament as the ultimate arbiter in all matters of government. I move.

I second the motion. In deaing with this motion, I hope that I will be forgiven if I start with certain basic principles which are known to certain hon. members and perhaps not known to others. I think one must bear in mind in considering the merits of the motion moved by the hon. member for Port Elizabeth (South) (Mr. Plewman) that traditionally and basically our Constitution is modelled on the thought that there is a separation of powers between the Legislature, the Judiciary and the Executive. I think it is fundamental to our Constitution …

This is not America.

That is so, but I would remind the hon. member for Standerton (Dr. Coertze) that the American constitution has more defined units of Executive, Legislature and Judiciary than any other country in the world, because at that time their appreciation of the English Constitution was that it was in fact so defined. But it is basic to the Constitution of England, upon which our Constitution is based. It is basic to our Constitution. The Legislature’s function is to legislate, to make laws; the Executive’s function is to administer the laws, and the Judiciary’s function is to construe the laws and to determine the rights and duties of individuals and of the state under the law. That is the principle, one of the principles which is involved in the motion now before the House. There are exceptions of course. The Legislature does have judicial powers under the Powers and Privileges of Parliament Act of 1912; Parliament may sit as a court, may hear evidence and generally behave as a court in respect of offences under that Act. Likewise courts have a legislative function when the Judges of the court make rules of court. But it is when one considers the branches of the Executive having judicial functions that one has cause to have a certain amount of alarm. It is this category which has got out of hand, this category of directed, delegated, diverted authority to make legal decisions and to put them into effect.

Now I don’t think there is one individual in South Africa who is not at one stage of his life or another, or perhaps all the time, governed by decisions which are made by members of the Executive staff, if I may call it that, members of the Civil Service. And one appreciates that it is necessary that this should be the position, one appreciates that the complexities of modern life, of a modern state, necessitates a certain amount of authority being delegated to officials; one appreciates that there must be a measure of control in all the activities of the State, of the Commonwealth for the common good. But Sir, the issue which is raised in this motion is not whether that should be or should not be. I accept that it is so and that it must be so, and that in any event, whether it must or must not be so, it is here and there is no way of getting rid of it. The issue is whether or not some sort of control, some sort of inquiry should not be made into the exercise by the Executive of judicial functions. Sir, on speaks of judicial, quasi judicial, administrative, executive, and so on. I think one should bear in mind what the distinction is between these expressions, and I think one should appreciate that the decisions which are made by these officials or by the Ministers of the State, are in fact decisions of a judicial nature. Now a true judicial decision contemplates five things, I think. It contemplates a lish or an issue, it contemplates a hearing afforded to the parties, in order that they may put forward the facts relating to the issue to be decided, and the right of course to debate the law relating to those facts, the right to contravert the facts, and so on; thirdly, I think, a decision involved is based upon leading principles, involving argument on the law, which principle is so strong that if the decision is wrong in law, there must be a right of appeal; fourthly, that reasons must be given for the decision which is given, and fifthly there must be some sort of finality, subject to an appeal.

As important as that is the fact that the persons who exercise judicial authority are completely independent of the State and completely independent of the Executive, and they therefore can afford to as they always have done, and no doubt always will do, exercise their functions completely impartially. The decisions which are made, Sir, by Ministers and their staff (if I may use that category of persons) are either quasi-judicial or they are administrative. A quasi judicial decision is one in which the elements of a hearing are present, in which a lish or issue is present, but which otherwise bears no relation necessarily to a judicial decision. In other words, what it never includes is an obligation to give reasons, an obligation to give a decision based upon judicial grounds, but rather a decision which is based upon discretion; not upon truth necessarily which can be contraverted by an examination as to whether the decision arrived at was correct or not correct. In other words, Sir, although there are the outwards trappings of a judicial decision, the essence of a judicial decision is missing, and there is nothing that the individual can do who is adversely affected by such a decision so far as his normal right to relief from the ordinary courts of the land is concerned. Nothing he can do about it except to say that the decision was not in accordance with the principles of natural justice. So long as it can be shown that the official who made the decision, who weighted up the facts, presumably, who weighed all the evidence, and who makes a decision which perhaps affects one’s livelihood, exercised his discretion, there is nothing that can be done. The courts will not interfere, unless of course the statute provides that there is a right of appeal. But in the nature of things in fact that never happens. Now, Sir, there are of course other decisions which are made, decisions have been defined in May’s “South African Constitution”, page 320—

Then he gives an example—

We are not concerned with purely administrative acts. We are concerned with these quasi-judicial acts, acts and powers. I must say, which are becoming alarmingly on the increase. Sir, I draw the distinction between quasi-judicial and administrative acts for the reason that you can invoke the court’s protection if the decision is a quasi-judicial one; you cannot invoke the court’s protection if the decision is a purely administrative one. And of course it is in the field of discretion that one has all the difficulties.

The powers are granted by Parliament.

That is true, but what Parliament does is in fact to give to officials, or give to the Minister a quasi-judicial power.

That is your safeguard.

No, here I can’t agree with the hon. the Minister that it is any safeguard that Parliament has given the power and that all those people are in theory responsible to Parliament, for the same reason (as I shall indicate) that administrative law as such was rejected by Dicey in 1870 or whenever it was, when he said that it was against the principle of the rule of law. Now in theory he is quite right, in practice I doubt very much if one can defend the attitude of Dicey in respect of administrative law of the droit administrative which existed in France. Sir, Parliament in fact has no control at all over these decisions. They are ad hoc decisions made in respect of each individual case, they are decisions of which there is no notice to the public; there is no publication of their decisions, although there is publication of course of their auxiliary powers to make regulations. I shall deal with those. But in the field of discretions one has one’s difficulties, and one appreciates that even in a quasi-judicial decision there is a discretion vested in the official or in the Minister himself. Sir, “discretion” has been defined by our courts, as an adaptation of a judgment of an English court—

Why complain about it?

What I am complaining about is that is the definition, but there is no guarantee, or any provision whatsoever that definition will in fact be adhered to. It may be a very good definition and if the discretions are all exercised in this way, one would have no cause for complaint. Sir, this is not a political motion and I am not intending to cast any sort of slur on anyone at all, but with every good intention in the world, no official, no Minister can give a decision in his discretion in accordance with that definition if he has not had the opportunity to be properly appraised of the facts, and fi he has not been given the opportunity that a normal judicial officer would be given of all the machinery which a normal judicial officer has for having the facts put before him, and of having the benefit of argument on those facts and on the law.

But that would be impossible to carry out.

I shall suggest to the hon. the Minister that it is possible and that these difficulties can be met. But that is the point of this motion that the difficulties cannot be met by the law. The law has found itself to be incapable of dealing with the complex development of myriad departments, of myriad controls, and so on, which are the scourge but nevertheless the trade mark of every society in the world to-day. And the law, the common law, is incapable of dealing with the situation, and it is now necessary for the Government, it is necessary for Parliament to do something about it; it is necessary for Parliament to set into operation machinery to deal with the situation which has now arisen because of the Act of Parliament, because Parliament has given to these people the powers which they have, and Parliament has not provided machinery within which decisions, discretions of a judicial nature, or be it quasi-judicial, can properly be exercised. That is our problem in South Africa, and it is the problem in England and in all Western countries, and as I shall indicate this problem has been solved to a large extent in America, where they have taken a realistic approach to the subject; they have appreciated the dangers and have taken the bold step of dealing through Congress with the difficulties which Congress itself has created.

Sir, the extent of the bodies, or people, officials, or Ministers who have these powers to make quasi-judicial decisions to-day are numerous. The list of those bodies is inexhaustible. I suppose that if I started now and reeled off the many boards that there are in South Africa to-day, I don’t think I could finish without drawing breath again. One would start with the Banana Board, the Mealie Board, the Wheat Board, the Citrus Board, the Transportation Board, the Rent Board …

That is democracy.

Yes, perhaps this is a necessary adjunct of parliamentary government, but I would not say that it necessarily means democracy, as I hope I shall indicate to the hon. member. As these boards operate without any sort of guidance, without any instruction from Parliament they are in fact not very democratic. Inasmuch as democracy means that there shall be a sovereign independent Parliament, which will make the laws and that there shall be an independent judiciary which shall interpret those laws, and decide for each individual what his rights are under the law, and also so far as the rule of law is concerned, I would say to the hon. member that they are very, very undemocratic, not intentionally, but because they have so developed.

What is the rule of law?

I remember spending almost three mornings a week telling students what the rule of law was and I am sure at the end of it they still did not know. I don’t intend to give this House this afternoon a lecture, however edifying, instructive and satisfying it might be to the hon. member.

A handy political argument.

Yes. I do not want to call it the rule of law necessarily, but the hon. Minister knows what I mean and I know the hon. the Minister appreciates that those three things are important: Supremacy of the Legislature, that the courts should decide what the individual’s rights are under the law and no one else, and the Executive, so far as possible, should be confined to its executive functions. There are a lot of advantages, as I have said, in these various boards and bodies: An inexpensive procedure, expedition of hearing, experts with local knowledge of the subject, with some knowledge of the technicalities of the subject, etc. It is not certain whether these qualities really endure, as I think is the experience of everyone. One mistake made by one of these boards as to procedure or whatever it may be (they may be all laymen) can result in very lengthy and very expensive litigation, as is very often the case. There is another aspect of this power, and that is the tendency to-day to give to the Minister, and not to the State President (the Governor-General as it was), the power to deal with various aspects of the general administrative law.

There is no difference whatever.

The hon. member for Standerton himself is a constitutional lawyer, and I think he will appreciate that a decision by the State President would mean in fact a decision for which the whole Cabinet would be responsible.

There is always Cabinet responsibility, whether it is one Minister or all the Ministers together.

Of course there is, but a decision made by the State President is a decision taken by the Cabinet in law and a decision made by the Minister is a decision made by the Minister in law, for which the Cabinet may be collectively responsible. But they are two different things.

De jure, yes, but not de facto.

In law there certainly is a difference and in practice there could be a difference. But no Minister can ever escape his responsibilities and no Government can escape its responsibilities by saying that this was a decision taken by the Minister in terms of powers which you, Parliament, granted to him, that is the point. The whole tendency has been towards departmentalization of all state activities, and one finds that Ministers and department officials become not only the makers of laws, but they also become the administrators of those laws and the judges of the rights of the persons who are affected by those laws, as to what their rights are under those laws. The unfortunate thing is that it is necessary in these modern days to exercise these discretions, to give these powers to various officials, and it affects every person and it affects very important rights. The decisions which are being made are being made by these persons and they are of a quasi-judicial nature. They are required to look at certain facts and to decide upon them what an individual’s rights are under the law which their department is controlling.

But one of the most important principles which is involved in the motion which has been moved is the question of justice so far as the public is concerned. If there is one principle, which is as important as the principle that justice shall be done, it is the principle that justice shall be seen to be done, and one of the most unfortunate characteristics of these quasi-judicial decisions is that they are made in private, anonymously. Although in fact like the State President’s decision in law, it might be the Minister’s decision, the fact is that in most cases it is a decision of a senior official applying his mind properly. But nevertheless the public does not know with whom it is dealing, it does not see justice done, it does not have the opportunity itself to see its case or its rights being determined by the person concerned.

The safeguard is that it can be ripped wide open in Parliament.

It can be ripped wide open in Parliament if every case is brought to the attention of every Member of Parliament.

It depends on a wide-wake Opposition.

The hon. Minister forgets that for the same reason that he himself cannot make all those decisions, the members of the Opposition also cannot deal with every single case which falls to be determined by a quasi-judicial decision of one of the authorities. That is important, it is one of the things that affects the public as far as these tribunals are concerned, and I want to say at once that I accept that these bodies are necessary. I accept that it is necessary that these powers should be extended to members of the Executive and members of the Civil Service. But what this motion says is that something must be done about it. You have to try to find a way in which these powers can be exercised in a more democratic way. We know, and the hon. the member for Standerton will correct me if I am wrong, our history books have told us that the Court of Star Chamber was a court of politicians enforcing a policy—it was not a court of Judges enforcing the law. I do not want to draw any analysis between what the history books tell us about the institution of the Star Chamber and the present system of executive government. But one must not forget that in its day even the Court of Star Chamber was a very good court, for the reason that no other court, in view of the peculiar circumstances which existed, could be found to enforce the law in those days. And when one looks at what happened in England in those days, when the Star Chamber was abolished by the Star Chamber Abolition Act, and we went back to Magna Charta and all that sort of thing, back to “the due process of law”, one wonders what would have happened if in fact Star Chamber had remained. I do believe that we would have had in England, and in South Africa in the result, a system of administrative law and not the system that we have to-day of ministerial responsibility to Parliament. I do believe that would have happened, just as it happened in France. I believe, Sir, that in the result it would probably have been a very good thing because the system which the hon. the Minister is apparently defending, that of responsibility to Parliament, or that every individual has his remedy because the Executive is responsible to Parliament, means no more to-day, I think, than the sort of responsibility that executive committees have in provincial councils. In law they are different things but in fact they come to precisely the same thing.

I believe that the common law of to-day has found—and I think the courts have admitted as much—that it is unable from its own resources to meet the requirements of the modern bureaucratic age. And it is a bureaucratic age, Sir, for better or for worse. I believe that we can make it for the better. I would like to make some suggestions to the Minister. I would like to suggest certain things which I believe should be done and which I believe, at least merit an inquiry by the Government.

I believe in the first place that all boards and tribunals should be made to give the reasons for their decisions. That has three or four very good effects. In the first place it provides an encouragement to those boards, those institutions, to reason out their decisions. Secondly, it makes known in general the policy of such a tribunal; and thirdly it will create far less divergence in the type of decision that is given by different tribunals in respect of the same subject. I might say, Sir, that in England there are examples in legislation where boards—one is in respect of the Road Ribbon Development Act, a similar Act to the one which we have—have to give their reasons and publish all the facts which it had before it when it considered what its recommendations ought to be.

Another suggestion is that representation of the parties concerned by counsel, legal advisers or by any other agent ought also to be allowed, particularly in the case of officials who have to make quasi-judicial decisions. Amongst other things it is said that the proceedings are very informal and it is not necessary for legal or other representatives to appear. I think the experience of all legal practitioners is that they feel less at home before informal boards than they do in formal courts. Another factor is the question of evidence. This is a very important matter. Another very good reason why representation should be allowed because the decision has to be made upon facts. Those facts have to be presented and legal representatives are able to sift out the evidence, are able to guide the tribunal as to what sort of evidence they should allow and should not allow, what sort of evidence is admissible and not admissible. I think this is important, Sir, because the whole of our system of evidence, all our rules of evidence, have been developed over the centuries in relation to jury trials. In other words, they have all been crystallized, especially as far as the exclusionary rules are concerned, with a view to not letting the jury, lay people, hear things which are not in fact facts, or things which might be more prejudicial than probative, and which might influence them unnecessarily. One must remember that all members of these lay tribunals are laymen. Another factor is that if there is argument then no prima facie view is reached. I want to draw the hon. the Minister’s attention to Section 16 of the Rents Act. Sub-section (1) says—

It is that sort of thing which makes it very difficult for these tribunals themselves to give a proper verdict, no matter how well-intentioned they may be. In this regard in England, in the Rushcliffe Report in 1934, it was recommended that legal assistance provided by the State should be provided in respect of administrative tribunals. Although when the Act was passed in England, the Legal Aid and Advice Act of 1949, it was not provided that this should be done provision was made there for representation to be allowed.

I have very little time left. This is a very complicated subject and I shall endeavour to be very brief with the last two or three most important matters. The most important matter perhaps is the right of appeal. The conservatism of the English and South African lawyers has always precluded such an appeal. It has even precluded it in criminal law until about 1947. You could not appeal on the facts in a criminal case. In the very first case, the case of Carr, which came before the courts—this is now an appeal from a judicial tribunal—the Appellate Division found that on the facts there was no evidence upon which this man could have been convicted.

He was a lucky man.

He might have been a lucky man. But the Judges of the Anneal Court decided that in law that man should not have been convicted. But for that provision of appeal that man would have been hanged. He had been sentenced to death. I think the right of appeal is a necessity especially from a lay tribunal which decides, without any direction as a jury would have from a Judge, without any legal directive at all, the facts: a lay tribunal which decides upon the facts whether an individual has certain rights or has not got certain rights. I believe that there should always be an appeal from such a tribunal to another tribunal which has legal people on it, either to the court or to another legal tribunal. After much pressure on the part of the American Bar Association they passed in America the Federal Administrative Procedure Act which provided for appeals from judicial tribunals in circumstances where it was not expressly forbidden by the statute in question. In South Africa, certainly as far as our Native population are concerned where they are ruled from the cradle to the grave, where their liberty, their livelihood, everything that concerns them, is determined by officials, they especially should have the right of appeal in the case of a deportment or banishment order or something of that sort, which is not of a criminal nature. [Time limit.]

Mr. Speaker, we again have here to-day the old bogy which the United Party has now been trying for seven years already to frighten us with, viz. the grievance they have against the powers entrusted by Parliament to an official or to a board or to a Minister. But we are making progress. I want to congratulate the hon. members for Port Elizabeth (South) (Mr. Plewman) and Durban (North) (Mr. M. L. Mitchell)—they are evidently poles apart as far as this is concerned—on having narrowed down the point of difference somewhat so that we can at least discuss it with each other. You will remember, Mr. Speaker, that when the hon. member for Wynberg (Mr. Russell) moved this motion a few years ago—and I think the hon. member for Port Elizabeth (South), at that time the hon. member for Johannesburg (North), still seconded him—they objected to any delegation of legislative power by Parliament to an official. We convinced them that was the correct thing to do in the government of a state.

We are not convinced.

Perhaps the hon. member does not remember so well any more, but that was the great argument between me and the hon. member for Wynberg on that occasion. with reference to delegated legislation. Now they have accepted that it is an essential method of government at least to have delegated powers. Well, I am glad of it. To-day their grievance is simply against a judicial or quasi-judicial exercise of powers by an official or by the Minister or a board, and they consider that those powers are not being properly exercised and that their exercise leads to injustice in administration. Let us regard that as being the point of difference.

Before I do so, I first want to direct the attention of the hon. member for Port Elizabeth (South) to this, that if he thinks that an injustice is suffered because the people have no means of redress to the place where they should have it, or if they have not the courage, or if there is a reason subjective to themselves, he must not ask that the system be changed, but then he should remedy the incapacity of those people.

The hon. member for Durban (North) has already said that there should be a process of legal aid. I agree with him. If that is the defect he should ask. in his motion that the State should provide legal aid in order that these people may obtain legal opinion, and remedy the injustice in that way. He should not try to amend the system, which in my opinion is inherently sound.

Let me add that the continual reference to the French system and to the Scandinavian system gets us nowhere. Because the French system did not develop from this problem we have. It emanated from the fact that when any person felt aggrieved by the actions of an official of the State, he could not sue the official, because the executive authority was not subject to the administration of justice. They established a council which they called the Council of State which had to settle the dispute a plaintiff had with an official qua official or when the plaintiff had a dispute with him in regard to a matter affecting private law. The rules developed there are known as the Droit Administrative. But that has nothing to do with this case.

That is the problem.

Mr. Speaker, the best of all is that we are the only country in the world which has developed a system of administrative law which is a very useful system; our system is better than the one they have in England, and I reproach hon. members opposite for the fact that, because the system in England is not as good as ours and because they read only English literature on the subject, therefore they do not know about the system of administrative law and the system of administrative judicial functions which exist in this country. I see the hon. member for Durban (North) looking at me as if he is hearing something he has never heard before. I am sure he has never heard it before.

Yes, I have heard it.

But then he should not say that there is something wrong with us. There is something wrong with him and with his studies. I want to tell him that our Supreme Court is in fact a court of administrative instance.

No.

The hon. member for Port Elizabeth (South) may sneer, but the facts remain as they are, and the hon. member for Durban (North) may think that he is now listening to the greatest nonsense, but he is hearing something which he should consider and which might be of great advantage in his practice.

Where can I read it?

I will tell you where you can read it. The joke is that it is all available to the hon. member, and this is the position. Our writers and our courts have developed a large number of rules as the result of legal interpretation and the principles of agency, i.e. the contract of agency, as to how a body or a Minister or an official exercising a judicial or quasi-judicial function has to apply that discretion.

Why did they not give reasons for the cases I mentioned?

If the hon. member looks carefully he will see that in every one of those cases the applicant won his case, or at least the person who felt that an injustice had been done to him, even though it was the defendant in the one case and the plaintiff in the other case. The point is that in the final result he ended up in the Supreme Court. But it is not Parliament’s fault or that of the hon. member for Port Elizabeth (South), or mine or yours, Sir, that person did not go to court when he should have gone. The hon. member for Port Elizabeth (South) now asks the Minister of Justice what the aggrieved person should have done. There were all kinds of legal remedies available to him. He could have asked for a declaration of rights; he could have applied for a mandamus; he could have sued them in the ordinary way to give him his rights, the two interdicta mentioned. But I am busy telling the hon. member for Durban (North) what the rules of administrative law are which the courts have applied here. Now I must say this, Mr. Speaker: If we do not have a separate administrative court that does not mean that we do not have separate rules of administrative law. It is a question of functions. And there are two things we should keep separate, namely the function of the Supreme Court and the function of the administrator. The function of the administrator is to apply the law, but the function of the Supreme Court is to settle a dispute. But it is not the function of the Supreme Court to substitute its judgment for the judgment of the administrator. These are two quite separate functions. But what the Supreme Court can in fact do is that it can tell the administrator, i.e. the administrative authority: You did not do your work as you should have done it; go and do it over again. And all the decisions in our administrative law, apart from particular legal provisions, end on that note. Now the hon. member asks me where he can read it. He will not find it in a separate brochure, but he will find it in a place where he probably will not expect to find it because he does not read his literature with the analytical eye that is necessary. He will find it, peculiarly enough, in the book by Dr. L. C. Steyn, now Chief Justice, called “Die Uitleg van Wette”, in Chapter VII, under the heading of legal interpretation. I will read it to him.

That is not necessary; I have read it.

I will point out two things to him on every point he raised. The one is how they adapted the rules of agency, the rules of our common law, and how our courts gave effect to it. The first rule is—and I read from page 214 of the second edition of Dr. Steyn’s book—

That is the elementary rule of administrative law. Now the question arises: When are these rules violated? I may say this—I shall not have time to tell the hon. members for Port Elizabeth (South) and Durban (North) everything—that there is only one rule of administrative law which is derived from French and Scandinavian law, which is not included here, and if next year they move a motion I would like them to consider this. It is, namely, the rule that the State is an honest man; it does not deceive and it does not allow itself to be deceived. The Frenchman says “1’état c’est un homme honeste”. The State is an honest man. In other words, it does not make misuse of the process or of the law of procedure. In all the cases where people have grievances, they are cases where the State did not act as an honest man. But whilst I am now continuing with my lecture I come to this question: When is the elementary principle of justice derogated from? The first is when the person who has to take the decision does not give the parties concerned the opportunity to submit their case. And that was one of the hon. member’s main points, that the case is not submitted. But that is one of the elementary rules of administrative law, namely that the person concerned, the person whose rights are affected, should state his case. If the hon. member looks at page 216, he will find a multitude of decisions of the Appeal Court to support this argument or point I have made.

But the hon. member’s difficulty is that he wants the Appeal Court to give the decision which the administrative official should have given. That is where he makes a mistake. If he wants the Appeal Court to be used as part of the administrative machinery, he should move a motion to that effect. I go on to the next rule: The person entrusted with the task of exercising a discretion must inform the persons in regard to whom he is giving judgment, or whose rights will be affected, of all the objections advanced against them, so that they may have the opportunity of controverting those facts and those objections and to show that they are unfounded. In other words, the administrative officer or the Minister or the board must inform the party concerned of all the facts it has to consider. If the hon. member in his practice did not know this and if he has already sent a large number of opinions back to the attorneys saying that he does not think that they can continue with those cases, he should go and read this chapter with a different eye, even from the one with which the Chief Justice wrote it. One has the feeling that the Chief Justice, with all due respect to him, himself did not realize that he was dealing here with a part of the positive common law in a form different from what is customary. He viewed it from the angle of legal interpretation. He had to do so. Because he had to find authority for these rules. Nowhere in the common law is it stated that this will be so in the case of an administrative officer. He must also have a foundation on which to base these adapted rules, and his foundation is the rules of legal interpretation. That is why we see it in this chapter.

Then I come to the next rule when the elementary rules of justice are violated, namely that the person authorized must be free from prejudice. He is a selectus persona. It is the same rule as the rule of agency. When I have selected a particular person to carry out a mandate or instruction, whatever his mandate might be, then I have selected him and nobody else. To me he is a selected person. He must do it. Therefore we have the rule that when you have a mandate you must execute that mandate yourself. Therefore we have the rule that when the administrative officer or the Minister or a quasi judicial body is entrusted with a duty, then none of them may delegate it—delegatus non delegare. That is the rule of agency and that is the rule of constitutional law introduced by our courts, acting in their capacity as an administrative judicial entity.

At 3.55 p.m. the business under consideration was interrupted by Mr. Speaker in accordance with Standing Order No. 41 (3) and the debate was adjourned until Friday, 13 April.

The House proceeded to the consideration of Orders of the Day.

Mr. Speaker, when the House convened for the first time on 19 January, I had a motion ready which read as follows—

The hon. member for Houghton (Mrs. Suzman), however, gave notice immediately before me of her intention to introduce a Bill with precisely the same tendency, namely the Bill now before us. Consequently I withheld my motion. But it is therefore obvious that I fully support the crux of this Bill, which seeks to repeal Section 16 of the Immorality Act.

My attitude is the same in respect of the amendment moved by the hon. member for South Coast (Mr. D. E. Mitchell). The hon. member moved that the Bill should first be referred to a Select Committee for investigation. His motion is, in my opinion, aimed at opening the way for the Government to escape without loss of face from the ugly consequences of its own legislation. In other words, to make it easier for the Government to make the necessary amendment which it surely knows must be made sooner or later. I shall therefore support the amendment and, if it is rejected, I shall vote in favour of the second reading of the Bill.

When Section 16 of the Immorality Act as it stands now was piloted through Parliament in 1950, shortly after the present Government came into power, I was not yet a member of this House. I became a member of the House only in August of that year. It is, however, common knowledge that the debates were then mainly concerned with the Government’s motivation of this step.

We are now faced with a completely different situation. Since then we have had a long period of years in which we have seen how harmful the effect of the racial provisions of the Act are. I believe that if, out of all the racial laws of the Government, there is one which in its effect has contributed nothing to the social prestige of our country, and has not solved a single problem but on the contrary has created a whole series of new ones, and which has been a source of unprecedented humiliation for thousands of men, women and children, it is the racial provisions of the Immorality Act. Whatever good intentions some of the Government members might have had in the beginning, after the experience we have now gained of the effects of the relative section of the Act, I can think of no single good reason why this Act should not be amended, and amended soon, in the way suggested by the hon. member for Houghton (Mrs. Suzman). In fact, the agitation to have the Immorality Act amended did not start with the hon. member for Houghton or with the United Party or with me. It came in the first place from high officers in the Department of the Minister of Justice himself; it came from lawyers; it came from judges and magistrates, from people who were the innocent victims of the Act; and it comes from leading organs of the National Party itself. The Burger, the chief mouthpiece of the Government party, has for the last three years regularly expressed its dissatisfaction with the Act as it now stands, and pleaded in the most candid language for a drastic modification of it. The Sunday newspaper of the Vaderland, which is the organ of a staunch party man like the hon. the Minister of Posts and Telegraphs, is waging a crusade against the dangers and the terrible consequences of the Act, and in a leading article frankly stated that “the Immorality Act, as it stands at present, is not quite right, and we would like to do our share to prevent the unnecessary human suffering”. It emphasizes the unnecessary human suffering. (Sondagblad, 19 November 1961.)

Of all newspapers, the shining light in this case, however, is the Transvaler, the organ of the hon. the Prime Minister himself. In a leading article “The Problem of Immorality” on 21 October 1959 the Transvaler said that we should be prepared “to view the problem in its full scope, namely that it is a biological problem in which human nature comes to the fore”. And further—

Mr. Speaker, it is a memorable occasion to see the Transvaler so fully in harmony with the attitude of the Opposition, and so directly opposed to the spirit revealed by the Minister of Justice. But it shows how leading circles in the Government party are beginning to realize the blunders of the Government, and how the Minister of Justice, when he replied to the first part of the debate, had to pretend to be callous in order to conceal it. Finally, the Transvaler referred to—

This is clear and definite language which is not susceptible to two interpretations.

The evidence of growing repugnance to the Act on the part of the Government itself can be stacked up, and in my opinion it would be a serious accusation against the Government if it were to allow another session to pass without amending this measure, which it must know is wrong, which its own public organs tell it is wrong, and which in the words of its own party organs causes “unnecessary human suffering”—I am quoting directly from its own organs—“has already created so much unhappiness”; “causes tension and suspicion in ordinary human relations between the races”; “has not redounded to the honour of our public life and South Africa’s good name”; “causes continual unrest and consternation on the part of the public”; and “causes indescribable misery to innocent women and children”;

I do not believe there is an Act on our Statute Book against which so many well-founded objections can be raised as against this Act. Where I refer in general terms to “the Immorality Act”, I obviously mean that section of the Act which imposes heavy compulsory sentences of imprisonment on intimacy, or even the semblance of intimacy, between White and non-White. I want to mention as briefly as I can a few of the main objections, and I want to base every one of those objections on statements and reports and arguments which have recently appeared in the Government Press itself.

In the first place we must admit that there are certain problems which are of such a nature that their solution does not lie simply in the passing of Acts imposing heavy penalties. The biological phenomenon of sexual intimacy in which innate human nature comes to the fore, is one of them. Members on the Government side have always known and realized this, and that is why, during all the years of their regime, they have never yet passed an Act against immorality as such and against immorality in its whole scope. The Government is and was evidently not prepared to make immorality as such, and therefore also as between White and White, a criminal act. Therefore we have the position that to-day there is not a single Act on our Statute Book against immorality in its full scope. Right from the beginning it was not immorality which motivated the Government; it was the aspect of colour which interested it. It wanted to make use of every possible and impossible means to foster an emotional state of mind in regard to matters of colour on the part of the electorate, and to-day we know that it went much too far when it dragged the courts and the police and criminal sanctions into the impossible sphere covered by the present debate. Politically it is perhaps forgivable, but what is unforgivable is that the face of all its evil consequences the Government carries on with it and neglects to amend the Act.

The extent to which the Government made a mistake when it originally introduced a measure like this can perhaps best be measured by the fact that ours is the only country in the world which has a racial law of this kind. The old excuses that our circumstances are different and that our problems are unique are totally unfounded. Most countries in the world are to a greater or lesser extent multi-racial countries. Multiracialism is not a characteristic of South Africa only. Most countries in the world are multi-racial. In many of them the problem of race relations was and is even more acute and intense than it is here. What is more, everywhere in the world the more developed races and nations are concerned with preserving their identity as far as possible. But nowhere in the world is it deemed prudent that the law and the authority of the State should interfere with people in the way the Immorality Act does here. The only Government, apart from ours, which did so in recent years was the Government of Adolf Hitler, who with his Aryan Laws did so much harm to his country that it will never fully be able to recover from it. Indeed, it is this very fact which makes the Immorality Act, its very existence as well as its effect in this country, so obnoxious to the whole of the Western world. I do not think one can ever measure in terms of money the harm and the humiliation which the practical working of the Immorality Act has caused and is still causing to South Africa in the eyes of the world. Just recently a number of incidents have taken place which have aroused the most bitter feelings against South Africa. I am thinking, e.g., of the Swedish sailors who received corporal punishment, of the case of the German sailors in Cape Town, and the hundred and one other international incidents which will continue to take place and perhaps even become worse as long as the world is becoming smaller and the scope of the racial obsessions of the Government is expanding, or even remains what it is. The effect of the Singh case, where a married couple were brought to court on a charge of immorality, has already been mentioned in the debate and I do not want to discuss it again, except to quote what the Department of Information had to say about it. In its Overseas Press Comment of 19 February 1962 the Department of Information reports that—

That is the conclusion drawn by a Government Department itself. In the same circular the Department of Information further reports that—

It completely overshadowed the statement in regard to the Transkei overseas; and that is easily understandable, because nothing arouses as much interest on the part of newspaper readers as what is called, in Press language, “a human interest story”. I think we must face the position that as long as this Act remains as it is, there will simply be no end to the ridiculous situations which will arise. We have already had one case after another of mixed couples who have been living together as man and wife for half a lifetime and have large families, and who have had to appear in court on a charge of immorality. According to the Press there was recently a case in Cape Town where a mother and her daughter both appeared on a charge under the Immorality Act. The mother was acquitted because it was not proved that she was Coloured. The daughter was convicted after her identity card had been produced, on which she was classed as a Coloured. One wonders what will happen to the poor Mr. Song of Durban if somebody has a grievance against him and lays a charge against him of being married to a Chinese woman. And the whole country is holding its breath and hoping that a visiting Japanese iron magnate will not dare to be too attentive to one of our South African Chinese ladies. The fact is that news about immorality cases is to-day one of the greatest journalistic export products from South Africa, and it is things like these which make our country, which politically is really much more stable than most other countries in the world, appear in the eyes of the world as the political madhouse of the world.

The Burger recently, on 22 February last, reduced it to pecuniary damage and said the following—

To me it is inexplicable how any Government which has a love for its country and wants South Africa to be respected can remain so completely indifferent to such a state of affairs.

But there are many more serious objections to the Act than those I have mentioned so far. There is the utter uselessness of the Act. If the will of the White man is not strong enough to ensure his own future, we are already far past the stage where an Act like the Immorality Act can make any useful contribution. An Act like the Immorality Act is simply not a means which a mature nation with confidence in itself ought to use for any purpose. The future of a proud nation in any case does not lie in the hands of its relatively small number of deviates.

Furthermore, there is the tension and the suspicion in ordinary human relations which the Act causes between the different races in South Africa. We have case after case where motor cars are stopped by the police, in which people of different colour find themselves for some reason or other, with extremely inconvenient consequences to all of them. It is a fact that no White man in these times dares to take home a servant who has been looking after his children. A man who until recently was a Member of Parliament and who sat on the Government side, and who stayed in the same hotel as I did, told me frankly that he was too afraid to take his servant to the station at the end of the session if his wife could not be present. The effect of the Act is a completely unnatural relationship between the races, and a very unhappy spirit of fear on the part of the White man.

There is another objection, and that is the unfair burden which the application of this Act lays on the police. At a time when serious crime is increasing and the Government needs the police increasingly in the security services of the country, the police must surely have spent tens of thousands of hours already hiding in wardrobes and behind bushes, climbing up pipes, peering into motor cars and rooms, watching the private movements of people, listening to malicious gossip, investigating cases, charging people and attending court cases—and all because of a measure like the Immorality Act, which does not solve a single problem. Small wonder that high police officers have on many occasions already expressed themselves as being against the Act in its present form. The Minister of Justice should really pay a little more attention to what his police chiefs think of the Act in the light of their experience.

I have discussed the matter with them more often than you have discussed it with your voters.

In May last year the Burger of 21 May reported the following from Johannesburg—

Sondagblad had a precisely similar report—

It is the high officers of the hon. the Minister himself, who deal with the practical effects of the Act, who adopt this attitude. The report says, further—

The Minister, in his speech in reply to the debate tried to belittle the wide field which the Act lays open for blackmail and initmidation and the prosecution of innocent people.

But let us briefly look at the type of thing which has recently come to light in court cases and in Press interviews. I shall read only a few. I want to read from the Government Press. (Sondagblad, 16/10/1961)—

Another report—

What are you reading from?

I am reading from the newspaper of the hon. the Prime Minister, Dagbreek of 15 October 1961.

Where did you quote the first extract from?

That was from Sondagblad of 15 October 1961. Then there is the Vaderland’s Sondagblad of 4 March this year—

Let the Minister get up and tell us that his own newspapers are not reporting the truth. One Government newspaper gave the following summary of all the different ways in which the Act is being abused to-day (Sondagblad, 22 October 1961)—

1. (1) Scandalous trick of catching White and non-White together and then to demand money;
2. (2) Conspiring to take revenge on an innocent victim;
3. (3) The use of a Bantu woman as a trap;
4. (4) Servant with a grievance who wants to revenge herself on her employer;
5. (5) The danger of political abuse by certain non-White organizations is increasing.

It is precisely for those reasons that so many magistrates and Judges are so very critical of this Act.

There are further serious evils which result from the Act. There is the effect of all this newspaper publicity in regard to immorality cases on the young newspaper readers. Even the more conservative South African newspapers are forced to give a sufficient measure of publicity to cases of this nature. That is due to the nature of the Act. An important Government newspaper expressed its fears in regard to this aspect of the matter in the following terms (The Burger, 22 February 1962)—

In addition to all the objections I have mentioned, there is still a further one, namely that this Act has caused a significant joy on the part of many non-Whites. In the consequences of this Act they see a trap which was set by the White man in which some of the best members of the White community are trapped time and again. Therefore we find that Bantu newspapers make heroes of well-known people who are concerned in immorality cases, and the concern which these cases cause the White people is increasingly becoming one of the main themes of non-White journalism.

Finally, I come to what is perhaps the most devastating effect of the Act in its present form. It is the indescribable consequences it has for the wives and children of affected families. I often wonder to what extent the effect of the Immorality Act is responsible for the fact that the figure of broken families in South Africa is one of the highest in the world. The Act has definitely resulted in a few thousand broken families in South Africa. But what is worse, thousands more children all over the country will have to go through the world for the rest of their lives with an inferiority complex of a special kind. Last time he spoke the Minister said in his speech that applied also in respect of crimes like theft and murder, but in practice that simply is not true. To be arrested under the Immorality Act results in a special form of humiliation. It is not so much because the colour line has been broken. The Minister is quite wrong when he says that the shame attached to it by the community in fact illustrates the enormity of the colour contravention. It is not in the first place the colour aspect which results in this public reaction. It lies herein: The process of intimacy between people has always been a matter of the most private nature, and from the very nature of the matter any revelation of it is bound to be accompanied by shame and humiliation. I do not believe that anything else we can imagine can be compared with the shock it is to children and to wives and to a family when this intimate aspect of perhaps a single indiscretion in the private life of the breadwinner is publicly divulged by the State in a manner which would perhaps have been more suited to the Middle Ages. I repeat, it is not in the first place the colour aspect, but because sex is concerned. It is the way and the circumstances under which people are usually caught, and all the intimate details which are then divulged at the trail, which drives otherwise normal people to committing suicide and buries whole families alive in the community.

Therefore I think the Government has a duty towards the country, and that is to put a stop to this devastation as soon as possible, or at least to allow the matter to be investigated on a high level, as was suggested by the hon. member for South Coast. This is the type of Act which cannot stand the test of sound commonsense or of time. Personally, I do not believe that any of our extreme racial laws will remain standing for very long, at all events, not the Immorality Act. Laws against real crime, theft, assault and murder, will always remain in force all over the world. Our Immorality Act, however, falls into a different category. As a Judge expressed it, “Nobody suffers any particular harm in the ordinary sense”. Therefore on the basis of all these well-founded objections against the maintenance of the Act in its present form, I hope that the Government will reconsider its attitude. Human life is brief, and is it really worth while retaining a measure which results in so much misery for innocent people, and does not really attain any object or solve any problem; to retain a measure which destroys so many lives but which obviously has no future as a law?

I have never before heard the hon. member for Bezuidenhout (Mr. J. D. du P. Basson) produce such futile arguments as he did to-day. I had thought that the hon. member for Houghton (Mrs. Suzman) who sits next to him may perhaps have exercised the necessary influence over him to inspire him in this debate but even in that respect my hopes have been shattered.

The hon. members said that the Immorality Act was only being used to get the electorate to vote on an emotional basis. I want to know from the hon. member since when has he been against the Immorality Act? He is one of the members who is always using the Immorality Act and the Prohibition of Mixed Marriages Act at political meetings in an attempt to rouse the emotions of the electorate. I want to know from the hon. member on what date has he turned against those Acts?

The hon. member contends that no single law has succeeded in changing the nature of mankind and he uses that as an argument why this Act should be removed from the Statute Book. If that is his argument what other Acts should be removed from the Statute Book? We have a law in respect of theft. Does the hon. member contend that because thefts still take place that Act should be deleted and that we should allow people to commit theft at will? What about murder and rape and the other crimes? He has argued along lines of which he himself knows the ordinary person will not take any notice. He is one of the members who still voted for this Act in 1957. I just want to say this that the Immorality Act deals with one of the laws which dates back to the earliest stages of history, namely to a period when one of the most mediaeval civilizations on this earth was still in its initial stages. We still see the result to-day in a country like India, for example, where the caste system is still observed so rigidly that no marriages take place between two different castes. The original reason for this marked division between castes was that the Bantu group which originally lived in an area between Persia and China moved across India in the direction of Australia, and that division into castes developed because some of those Bantu remained behind in India, and that is still the position to-day. The position to-day is simply that members of the one caste do not inter-marry with members of another caste. The hon. member for Bezuidenhout is the person—and I can quote his own speeches to prove this— who has repeatedly advanced this sort of argument at more than one political meeting to rouse the emotion of the voters.

Give one example.

I move—

I second.