as Chairman, presented the Report of the Select Committee on the Natal Ecclesiastical Properties and Trusts Amendment (Private) Bill.

Report and proceedings to be printed.

Mr. Chairman, we of the official Opposition support the principle contained in this clause; in fact, we welcome it. We welcome those rare occasions when honesty shines from the Government’s actions and they can be seen for what they are. This clause is an honest one which, sets out honestly the reasons for saving petrol. Only a few weeks ago the hon. the Minister was denying these reasons. He was talking in terms of the Act as it stands. Through the intervention of the hon. the Prime Minister we now have a clear, unequivocal and honest statement setting out the reasons for petrol economy. We give our full support to it and we welcome this rare—if not quite unique—occasion to be able to congratulate the Government on being honest. We ourselves will give our fullest support to honest attempts to conserve petrol in the financial interests of South Africa. We hope that the public will also co-operate in this regard and will give their support to these efforts. Many of us have felt that the speed limit should have been fixed at ten kilometres higher i.e. 100 km/h. This feeling has been expressed on many occasions but this is not the occasion to quibble about that matter. The hon. the Minister himself has spoken about frustration. He will know what happens when a string of 15 or 20 vehicles gets behind an “ou oom” out for a constitutional drive in a clapped-out 1938 tjorrie. The cars crawl behind him at 50 or 60 km per hour until somebody loses patience and tries to pass him. That is when accidents occur. This is an aspect that has to be watched, the aspect not only of the fast driver but of the slow driver who creates a build-up of frustration and impatience. We support the principle of this clause, we support its intention and we support the appeal that the public should also give it their support.

What we cannot support is subsection (2). Because of this fact I want to move—

This subsection makes the application of the clause retrospective and we oppose this for three reasons. The first of these is that despite the fact that a question was put to the hon. the Minister, that a civil question was put to him during the Second Reading debate as to who felt there was legal doubt about the present provisions, to which he reacted: “You can speak and I will answer in my reply”, he has not told us who it was who had the doubts.

The question was asked in connection with subsection (1), not subsection (2).

No, the question was asked why it was necessary to make this retrospective. The hon. member for Durban North asked who had queried whether it was intra or ultra vires. The hon. the Minister then said: “You can speak and I will answer you”. The hon. member has spoken and now we await an answer from the hon. the Minister. Who had doubts about the validity of the regulations issued in terms of the existing legislation? The hon. the Minister has given no answer. I think we are entitled to know who had those doubts. We want to know who raised them and who expressed them.

The second reason is that the hon. the Minister has refused to say what the doubts are. He was questioned on that as well and again he remained silent. Perhaps he can now give us answers to those questions. That leaves the third reason why we object to this being made retrospective. In this regard I speak on behalf of those tens of thousands of motorists in whom those hon. members who are carrying on their own debate in the corner over there have no interest at all, those motorists who have been taken for a ride, those motorists who have been diddled. When I say “diddled” I mean diddled. They have been taken for a ride and diddled out of hundreds of thousands of rand because of the form in which, under the cloak, the disguise, the pretence of saving petrol, the Government applied those provisions in order to punish, them for something that was not a wastage of petrol but a contravention of municipal regulations that had been designed for safety and other reasons. Because of the way in which the motorists of South Africa have, I believe, been robbed or defrauded of hundreds of thousands if not millions of rand we see no reason why we should validate the measure now retrospectively to November 1973. If it was not valid, why did the Government act under it? Why did they not correct this matter last year? This was a full year after the first regulations had come into force. The Government could have moved an amendment to the principal Act last year during the session of Parliament. Why did they not act then? Why do they come now in 1975 and try to legitimize something which they apparently believed was not legitimate? Because of the manner in which the motorist was wrongly punished under an alleged fuel regulation in urban areas, we want it to go on record that we on this side of the House will not be party to a validating retrospective clause which includes in it the validation of what we believe was misleading and was not a true or accurate application of the law to urban areas.

Why did you not say a word when I pleaded for that last year?

The hon. member correctly pleaded for action to be taken against those municipalities which were using these regulations simply as a taxation measure to boost their income; I agree with him 100%, but it was his Government that not only made it possible, it was his Government that told the public prosecutors under what statute to prosecute. It was his Government which laid down the fines. It was his Government which said to the courts of South Africa, “You will punish people for a municipal offence under a national emergency regulation”. It was his Government, his Ministers. It was the party which he supports…

You are just climbing on the bandwagon.

No, I am not climbing on the bandwagon. I have expressed my views before; this is not the first time. I expressed my views when the first amendment was first mooted, and that Government which that hon. Whip supports and to which he is loyal is the Government which has done this to the motorists of South Africa. What that hon. member should have done was not to plead that the money should be taken away from the municipalities and put into Consolidated Revenue, as he did; he should have done what the hon. the Prime Minister has done, and that is to say, “We will! not punish people under a municipal regulation for something which has nothing to do with the saving of fuel”. But, Sir, that hon. member did not plead for that.

Of course.

He pleaded that the fines be paid into Consolidated Revenue and not given to the local authorities.

Nonsense. You do not now what you are talking about.

It was a United Party M.E.C. in Natal, a United Party-controlled province, who first expressed his total aversion to and his abhorrence of what he described as taking the motorists for a ride. It was a Natal M.E.C. under a Natal Administration who drew to the attention of the public what he called a fraud against the motorists of South Africa, and he did it weeks and weeks ago. [Time expired.]

Why is the Minister not replying?

Mr. Chairman, what an extraordinary state of affairs! Here we have the Minister who is the Minister in charge of this Bill; an amendment is moved, and he attempts to sit “tjoepstil” without even trying to get up and to explain to the Committee whether he accepts or does not accept the amendment.

Sit down, then I will reply.

No, Sir, I am not going to sit down. The hon. the Minister said last night, when the Second Reading debate was taking place, as the hon. member for Durban Point has quite rightly pointed out, when he was asked a question—

Sir, then he was asked, “What quarters are you talking about?” in reference to his statement that this had been suggested in various quarters, and his answer was—

He did not reply in this regard and he cannot come here today and say, as he said to the hon. member for Durban Point, that this is a question in relation to subsection(1)of clause 1. Obviously, Sir, it can only relate to subsection (2). That is the clause which purports to make this retrospective. It could not possibly relate to subsection (1). If this is the grip the hon. the Minister has on the Bill, this debate is going to be unfortunate, especially if the hon. the Minister is going to show reluctance in replying to questions as he did last night. [Interjections.] Yes, it is a pity the boss was not here last night.

He was finding out what consulates are vacant. [Interjections.]

As far as we on this side of the House are concerned, we accept the correctness of the decisions of the Supreme Court in at least two and I think possibly three divisions where this matter has been raised, decisions of the Full Bench in at least two and possibly three divisions of the Supreme Court. We accept that this is so, and the only reason, the only basis on which the Minister can suggest the existing regulations or proclamations made under the Act might be ultra vires, is on the basis is that the regulations and proclamations which were made were made by the Minister because he deemed it necessary and expedient for the security of the Republic and that in fact this was no longer so but rather a matter, as the hon. the Prime Minister has pointed out, of conserving and saving the use of goods for the reason that foreign…

Now you are wresting my speech completely from its context.

I heard and read the speech.

And still you do not understand it.

Is it not a matter of foreign exchange? Is it not a matter of the high price of oil?

It is a matter of both, and I said so in no uncertain terms.

That is what I said. Sir, my point is this, that the reasons given by the hon. the Prime Minister, the matter of economics and foreign exchange, are obviously a matter which encompasses …

It is one of my reasons, but not the only one.

… the question of security. Surely, the security of the Republic, in matters of economics and foreign exchange, affects the security of the Republic.

The other sword is hanging over our heads, and I said so.

I know you did.

It is hanging over your bald head too…

That is not the question. Would the hon. Prime Minister then apply his mind and tell us why he thinks it is necessary to pass—we agree it should be so—the provision in subclause (1) which gives new powers to the Minister to prohibit goods or to regulate the manner in which they may be used—petrol in particular—in respect of the economy—not in respect of security but just in respect of the economy. Now we agree. Why then is it necessary to try to validate what has already been done and which we believe was done lawfully and which the Supreme Court said was done lawfully? That is the question the hon. the Prime Minister must address his mind to. Now, when it comes to the object of this Government, I cannot —and this is what we hope to have a reply to—see that any reason has been given as to why this precaution should be taken to try to validate what has already been done. The only basis on which it could be suggested is that in fact these regulations were not made because of the security of the Republic but rather, as is said in subsection (1), in order to effect saving or economy in the use of the goods specified in the Gazette. That is the only basis on which this subsection (2) could possibly be necessary. But I want to say to the hon. the Minister again that if that is what in fact he wishes to achieve, then I do not think he does achieve that object with this amendment. All he does in terms of the amendment in subsection (2) is to make retrospective the new powers given in subsection (1). These powers are being made retrospective to the time of the first promulgation of regulations relating to fuel saving, namely 16 November 1973. The regulations he has made to date have all been made in terms of the existing provision in the Act and not in terms of this new provision. He cannot therefore pretend, although he makes this provision retrospective, that the regulations which have already been made by his predecessor, and which are the important ones, were made in terms of the existing law. He cannot later pretend that he in fact made these regulations, applying his mind to the question of saving or of economy, because he did not. He applied his mind to the question of the security of the Republic. How he thinks this amendment is going to help him, by making retrospective to that time the power which he could exercise, I just do not know, because the regulations were not made in terms of this section which it is now being proposed should be made retrospective. Those regulations were made in terms of the existing law. If he were to pretend that he had in fact made them under this new provision, which is now being made retrospective, I would suggest that it is probable that the regulation would indeed be upset on the ground of that claim, rather than as a result of the existing position, because he had not applied his mind to it. He could not possibly have applied his mind to a regulation being made in terms of this provision, which is now being made retrospective. It did not exist at the time when in fact he applied his mind to the question. He would be in great difficulty if he were to appear in court and attempt to explain how it is that he at that stage had in mind something which would be enacted only two years later. That is the issue, and we would like to know, as we indicated before, what the quarters are that he is speaking about. [Time expired.]

Mr. Chairman, I also look forward with interest to hearing from the hon. the Minister the reasons for subsection (2). There is also something else I should like the hon. the Minister to clarify. I refer to the wording of the proposed subparagraph (iA). The words “in order to effect saving or economy in the use of goods specified in the notice” we can understand perfectly well. The subparagraph continues as follow: “… regulate in such manner as he may deem fit, or prohibit… (vv) the possession of specified goods”. That we understand as well. Subparagraph (aa) refers to “the use of such goods for specified purposes”. That we also understand. The subparagraph continues: “… or for the performance of a specified act in a specified manner”. That we also understand. I should, however, like to ask the hon. the Minister to explain to us what the remaining words mean, namely “… or for the use of other specified goods”. Quite frankly, we in these benches are unable to follow why those words have been included.

Mr. Chairman, I believe that the hon. the Minister is very conscious of the fact that he has only very recently been appointed Minister of Economic Affairs. I believe, however, that he must accept full responsibility for this particular Bill. This Bill is his responsibility and not his predecessor’s.

Order! I hope the hon. member is not going to repeat arguments that were used during the Second Reading debate on this Bill. We are only dealing with this clause now.

Mr. Chairman, I am not repeating the Second Reading in any way whatsoever. Unfortunately I was not able to take part in that debate, but I shall not discuss the principle. I wish to discuss particularly the amendment which has been moved by my hon. colleague. I must, however, preface my statement by pinning clearly to the hon. the Minister the fact that this is his responsibility. We know that he is legally trained. That is why I am mentioning this. He has produced a Bill which I maintain conflicts completely with basic legal principles. Clause 1(2) states—

In other words, all acts which may previously have contravened the new subparagraph (iA) will be considered as being illegal. I think the hon. the Minister knows that it is a basic legal principle that there is no punishment without prior penal provisions. Because of the fact that the regulations which the hon. the Minister has promulgated previously may be illegal, he is now trying to cover that by saying that the people who contravened those illegal regulations previously, will now be considered to have contravened those regulations and committed a crime. I believe this is completely in conflict with our basic legal principles. I would like the hon. the Minister to explain exactly how he can come to agree that this subsection should be imposed upon us. We know that in the case of certain drastic measures, when it was essential for the security of the State, criminal provisions have been made retrospective. But such a position certainly does not become of issue here whatsoever. I believe the hon. the Minister has a duty to reply to this House and to explain how he can justify such a contravention of basic legal principles.

Mr. Chairman, with regard to the new subparagraph (iA) (bb) of section 2(b) of the Act, which reads “the possession of specified goods”, would it not be in the interests of the hon. the Minister if he amended this provision in order to stipulate the place and the quantity? In other words, should reference not be made to the place where specified goods are held, or to the quantity of goods which might be held? This would give the Minister more power in that regard.

Mr. Chairman, I listened with great interest to the legal explanation of the hon. member for Durban Point, but I want to say immediately that the hon. member still has a great deal to learn in this particular regard. The hon. member has a point, but not a legal point.

The hon. member began his speech by making a few cutting remarks about a legal question. I want to let the matter at that, but just want to tell the hon. member that I have not yet had the opportunity to complimenting the United Party on their honesty, not even on occasion. Even if we want to analyse the amendment and clause 1 in a meaningful way, we have to go back to the principal Act in the first place. I do not know whether the hon. member for Durban North has the principal Act in front of him, because it is important. If not, the hon. member should get hold of it so that we can be better able to follow each other’s arguments. What I am now going to say, will at the same time serve as an answer to the arguments of the hon. members for Durban Point and East London City. Basically the hon. members make the same factual statement. The National Supplies Procurement Act of 1970 was the only Act in terms of which steps were taken when the situation arose in 1973 and fuel saving measures had to be applied legally. Furthermore, hon. members will know that the provisions of paragraph (a) of section 2 of the relevant Act have not yet come into effect. But paragraph (b) of section 2, to which a further sub-paragraph is added by clause 1 of the Bill, was used by the Controller of Petroleum Products to give legal sanction to the saving measures. To understand clause 1(1) of the Bill and to understand the reason why there should now be a subsection (2) added to clause 1, one should bear in mind the enabling powers of article 2(b) of the Act. He will do well to have a look at section 2(b) of Act No. 89 of 1970. I quote from the English text—

The relevant words are “the manufacture, production, acquisition, disposal or use of any goods”. We should remember that we are now dealing with an enabling clause, one which grants the Minister certain powers. For the purposes of our debate, the powers are defined in section 2(b) of the previous Act as they effect this particular matter. Hon. members will notice that the description in section (b) deals with certain concepts, i.e. the manufacture, production, acquisition, disposal or use of any goods, while notice was given under the section in regard to the use of goods, which, for our purposes, are fuel or petroleum products. Although it is quite correct that two provincial divisions of the Supreme Court gave a ruling that the words contained therein, i.e. “beskikking” or “disposal”, also include possession, some legal doubt exists on this interpretation. I immediately want to tell the hon. member for East London City that I agree with him wholeheartedly. Although I only took over the department recently, I am of course the responsible Minister. I am responsible for this particular legislation and I am likewise responsible for the legislation handled by my predecessor because I am a member of the Government. I definitely do not intend to shirk that responsibility. The question which arises now,is whether “disposal” also includes “possession”. The point was argued in court and was also taken on appeal but no judgment has been handed down yet. Therefore, I believe hon. members support section 1 because section 1, as I stated quite clearly in my Second Reading speech, is the section which is being inserted to rectify the legal uncertainty which exists in regard to the existing section. I want to stress this for the information of the hon. member for Durban Point. It is not subsection (2) of the clause that has to provide legal certainty where no certainty exists. Subsection (1) has to do this, and it now provides the necessary power.

[Inaudible.]

The hon. member for Jeppe must please give me a chance.

No. I am speaking to an hon. member here.

Yes, but the hon. member is diverting his attention while I am talking. We have to understand one another. I am dealing with a legal argument.

He is trying to concentrate.

Over-sensitive.

I am not being oversensitive.

You are being silly!

But he is talking to the man now.

Order!

Subsection (2) should not be read in isolation; it should be read in conjunction with subsection (1). The hon. member asked me who it was that expressed doubt in the light of the fact that two provincial courts declared that it had legal validity. The reply to it is that the chief law adviser expressed legal doubt about the fact whether one can handle “possession” in terms of the existing section. The law adviser of my own department also expressed doubt about it and I myself doubt whether one could interpret the existing section in the light of the legal rule in such a way that it could include possession. All I am doing with subsections (1) and (2), is to bring about legal certainty and not to keep the position in suspension. The reason I am doing it in this way is very simple, i.e. that I, knowing that I myself as well as the chief law adviser have some doubts about the legal validity of this, do not want to leave the position as it is during the recess. If I were to do this, it would be irresponsible of me. I also stated quite clearly in my introductory speech that there could be some doubt about the legal validity of the regulations and steps which have been taken in terms of the provisions of this section, but that there cannot be any doubt about the legal validity of this section.

I think hon. members on the opposite side and I agree on the principle that we want to have fuel saving measures. We may differ on the reasons for this and we may differ on the methods thereof, but we do not differ on the principle. What am I doing now? I am introducing the legislation now which does not determine the measures quantitatively, but which should create the enabling legislation and remove the legal uncertainty which exists. If I accept the amendment of the hon. members in this particular regard, it is my argument that I cannot accept it and precisely for the reasons which I will mention. As I said a moment ago, the legal validity could be disputed in the Appeal Court. If I were to accept this, it would mean that we would have to promulgate again all the existing regulations and those in terms of which steps were taken after the approval of subsection (1).

Furthermore, the hon. member for Durban Point asked me who it was that raised the doubt and from which quarters the doubt was expressed. He also referred in a reckless manner to “tens of thousands” of people who were prosecuted in a fraudulent manner. Surely, there is not even a grain of truth in a statement of that kind. The hon. member is doing precisely what other hon. members also did, i.e. to object to the functional part which is necessary to have the principle implemented. I say again that the hon. member really should not expect me to take any notice of a superficial argument such as the one he advanced.

Let us consider the standpoint of the hon. member for Durban North. What does Die Uitleg van Wette say about my particular standpoint, that is if the hon. member is interested in listening. I quote from the work by Mr. Justice Steyn on the point at issue. I refer to the retrospective effect of the section that I am proposing here.

What date was that?

There is no date involved. Die Uitleg van Wette is a book which was written by L. C. Steyn, who is an authority in the field of the interpretation of laws.

Oh, clever, clever!

There is a full stop in the book as well.

There are even commas in the book. I quote to him the following (translation)—

We are in the process of extending them (translation)—

As I, in fact, said a moment ago (translation)—

I do not know why the hon. member for Durban North is arguing about the legal aspects of it. As far as the facts are concerned, he can argue with me till the cows come home. This principle of L. C. Steyn was confirmed. In this regard I refer the hon. member to the case of The State v. Du Toil (1959/2, S.A. Law Reports). I quote to him from page 103 (translation)—

The basic law is understood.

The hon. member says that these are basic rights which are “understood”. But if this is their standpoint, what is the hon. member for Durban North arguing about?

You must be deaf.

Sir, I think it would be best if I ignored that remark. I want to stress that it is a nonsensical argument the hon. member for Durban North is advancing, i.e. that, in terms of this legislation and the retrospective nature of it, we want to ensnare people who were found guilty of speeding offences. This is not true. It is quite clear that we are dealing here with a completely different concept.

I come to the hon. member for Johannesburg North now. He said he was able to understand everything, even subsection (2). That is how I understood him to say. However, he said he did not understand the words “or for the use of other specified goods”. The goods we are referring to, is from the nature of the matter and for the purposes of our debate, fuel. That fuel is used in motor vehicles and the motor vehicles are also regarded as goods.

[Inaudible.]

That is being covered by the last words.

There is only one more matter I want to reply to. The reason for this subsection being made retrospective to 16 November, is because the particular section 2 of the National Supplies Procurement Act of 1970 came into effect at that time. I think the points raised by the other hon. members were basically the same, except that of the hon. member for East London City, who said that this is a principle…

Yes.

I have not even said what the principle is, and the hon. member already says “Yes”.

I know the hon. the Minister agrees with me.

He said it is a principle that prosecutions cannot be instituted without there having been prior legal provisions or notices. No one disputes this. I want to say again that we cannot apply the argument both ways. Surely, we cannot argue in the first place that there is no legal doubt because two provincial divisions of the court of law have found the legal validity in order, and then immediately afterwards to argue precisely the opposite and say that I am prosecuting people on account of an offence which did not exist. Surely, this is nonsensical. People who have had legal training do not argue in this way.

It is a principle, but you know nothing about that.

Mr. Chairman, I have some difficulty in understanding the difficulty which the hon. the Minister has with the word “use”, “die gebruik” in section 2(b) of the Act. I see very little difference, so far as interpretation is concerned, between the words that are now used in section 2(b) and the words used in this new subsection (1), so far as the word “use” is concerned. The difference is that as the Act now stands, he can only make the regulations in this regard if he deems it necessary or expedient for the security of the Republic, whereas under this he may also make it “in order to effect saving or economy in the use of goods specified in the notice.”, regardless of whether it relates to the security of the Republic. That is, as we see it, the difference and we agree that in the circumstances that extra power, new power should be granted. But if one looks at the Act as it is now, he may—

What does the hon. the Minister do in the new clause? He may—

As far as that is concerned, I do not see the hon. the Minister’s difficulty. I do not know why the hon. the Minister is afraid in this regard and we can see no necessity for it. I think the point which the hon. the Minister has missed, is that it was no good quoting the case of Du Toit because, this is old hat. It has been the law for hundred years. Parliament is entitled to make any law and to make it retrospective if it so wishes and obviously the courts must have regard to it. I would have thought, if the hon. the Minister had wanted to validate the regulations which have already been made, that what he would have done was simply to say that the proclamation contained in Government Gazette 4084 of 16 November 1973 and the proclamation contained in Government Gazette 4253 of 11 April 1974, are validated. I would have thought that this is what the hon. the Minister would have done, because this is what is normally done. If it was put that way, it would have made sense. I think if the hon. the Minister is, by doing this, going to rely, if there is a challenge, on the argument that this subsection now validates it, he will then find himself in the position that it is not validated by this for the reason which I have mentioned, namely that he did not apply his mind, when making the regulations, to the powers granted to him. The law is clear and I do not wish to read it to the House, because the hon. the Minister will appreciate that the law is quite clear, that Parliament is delegating—and the hon. the Minister is in terms of this Act the delegatee—to him the power to make laws in terms of the powers granted and he can only make laws in terms of the power granted by Parliament. That the hon. the Minister has done and in our view, he has done it correctly. The hon. the Minister cannot argue that if one of the present regulations is challenged, it is covered by subsection (2), because he did not act in terms of that. The point is so simple that I thought the hon. the Minister had it. I am just warning and telling the hon. the Minister that if that is the argument which he is going to use if he is trying to validate this, then he is giving anyone who wishes to appeal against that argument a cast-iron case against him which, I believe, they would not have if he put this thing properly. I am only telling the hon. the Minister so that he was at least warned, not to derogate in any way from the amendment moved by the hon. member for Durban Point because we feel, in any event, that it is unnecessary. But why is the hon. the Minister so concerned about such a decision occurring during the recess? What will happen? What will happen in that regard if in fact there is a decision during the recess? How many people are going to be affected by this? That is the point. What does he anticipate will be the effect in the recess: We would like to hear from the hon. the Minister as well what sort of catastrophe he thinks will occur, how many people he thinks will be affected, and what he thinks the situation will be in the recess.

I would like to ask the hon. the Minister whether in his reply to the hon. member for Johannesburg North, he was inferring that subparagraph (iA) gives him the power to forbid the use of motor-cars or to forbid the use of speed boats? I wonder if he would explain that again, because there is still some confusion in this regard. To come back to subparagraph (bb), here the Minister can prohibit the possession of specified goods. Would it not be in the interest of the country if the Minister could prohibit the possession of specified goods in a specific place, or if he could prohibit the possession of specified goods in excess of certain quantities? Would he not like that additional flexibility, because it is not contained in this clause?

Sir, I do not intend debating this matter much longer. The hon. member for Randburg asked whether I should! not have the authority to prohibit the possession of specified goods in a specific place, or the possession of specified goods in excess of certain quantities. Sir, this is already contained in the clause. It is covered by the words “regulate in such manner as he may deem fit”.

You have that power.

Yes, I have that power. I may determine the quantities and I may determine the place. It is covered by the words I have just quoted. The hon. member for Von Brandis is quite correct.

Sir, I now come to the hon. member for Durban Point. I do not want to enter into a legal argument with him. Sir, I wish to refer once more to section 1 which is supported by the hon. member.

But (1) can stand alone from (2).

I concede that at once, but that is not what the argument is about at the moment. The point I made in regard to the problems which were experienced was that regulations which had been promulgated with regard to the possession of goods…

And the use?

The hon. member should just wait a moment; I shall come to that in a moment.

Withdraw the old ones and repromulgate them.

Order!

Sir, the fact of the matter is that in terms of the existing section 2(b), regulations were made affecting the possession of fuel. For instance, one may not have more than 10 litres with one in a car. That regulation has been made. Doubt exists as to whether those regulations are valid in law. [Interjection.] Sir, if the hon. member is not prepared to give me a chance to put my argument, I shall resume my seat. I want to validate the regulations which were promulgated with regard to possession. To enable me to do this, I must take the necessary authority. That is the answer.

Mr. Chairman, I do not want to become involved in the elementary legal lesson which the hon. member for Durban North gave the Minister. It seems that it does not help; that the Minister is beyond learning. The question is why does he have to validate retrospectively the whole provision, when he himself says that it does not apply to the “use”, that it only applies to the “possession”? When I interjected, “What about the use?”, he got hot under the collar. He waved his arms at me and made some sort of noise. He became annoyed when I said, “What about the use?” In other words, he does not need this for the “use”; he only needs it for the “possession”. Am I right? Does he need it for the “use”—

Dead silence.

You see, Sir, when he argues against the hon. member for Durban North, he talks about possession. He spoke solely in terms of possession. He referred to the 10 litres and when I interjected, “What about the use?”, he became annoyed. I ask him again: “Does it apply to the use?” Does he need this retrospective power in respect of the use, or only in respect of the possession? He has not got an answer. In other words, he wants it for both. He is not prepared to commit himself. I want to know whether it is only for the possession. I want the Minister to answer the question of the hon. member for Durban North. How many prosecutions are there pending for the illegal possession of fuel which would create chaos, which would create a threat to the security of South Africa and which would undermine the petrol-saving effort; how many cases are pending, and how many people would be affected? Because this is only the possession he is talking about. He is not talking about the use; he is talking about the possession. He wants it to validate the “possession” and the “use” as well. He says he does not; he shakes his head. He does not want it for the use. Therefore it is only for the possession.

I did not shake my head at you.

The hon. the Minister was very specific, very detailed and specific and spoke calmly and quietly, until I interjected and said: “What about the use?” Then he was not so calm. He was specific that he required this for the possession. He was very specific, and he did it not once but about four times. Now, if it is in fact the possession, why would he not tell us of these thousands of cases which are going to be affected? Why does he not validate just that portion? Why does he not validate that regulation, instead of making the whole clause, the whole new subsection, (aa) and (bb), retrospective? The reason, I submit, is that it is because he wants the whole lot to be retrospective. But the hon. member for Durban North told him it will not help him; so why should Parliament pass an unnecessary provision? No, Sir, he has not answered this. He has not replied to the hon. member for Durban North and we are still not satisfied.

*Before resuming my seat, I want to say in all fairness to the hon. member for Tygervallei—I do not see him at the moment—that I alleged that he had said the fines under the old regulations in urban areas should be paid into the State coffers. I accept that he did not say that. He advocated more judicious action on the side of the City Council of Cape Town. In other words, he did not ask for these powers to be abolished in urban areas, as he alleged. He did not ask for the abolition of the powers or the fines in terms of these provisions in regard to municipal offences, but nor did he ask for the money to be paid into the coffers of the central Government. He was not the person who had originally asked for this amendment; he just asked for judicious action. But in so far as he did not ask for the fines to be paid into the State coffers, he was correct, and I admit it, but he was wrong, too, as far as the other side of the matter is concerned.

On amendment moved by Mr. W. V. Raw,

Question put: That the subsection stand part of the clause,

Upon which the Committee divided:

Ayes—76: Albertyn, J.T.; Ballot, G. C.; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha, L. J.; Botha, M. C.; Botha, P. W.; Brandt, J. W.; Clase, P. J.; Coetsee, H. J.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Wet, M. W.; Du Plessis, A. H.; Du Plessis, B. J.; Du Plessis, P. T. C.; Du Toit, J. P.; Engelbrecht, J. J.; Greyling, J. C.; Hefer, W. J.; Herman, F.; Heunis, J. C.; Horn, J. W. L.; Janson, T. N. H.; Koornhof, P. G. J.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux. F. J. (Hercules); Le Roux, Z. P.; Loots, J. J.; Louw, E.; Malan, G. F.; Malan, J. J.; Malan, W. C.; Maree, G. de K.; McLachlan, R.; Meyer, P. H.; Morrison, G. de V.; Muller, H.; Muller, S. L.; Munnik, L. A. P. A.; Nel, D. J. L.; Nothnagel, A. E.; Palm, P. D.; Pansegrouw, J. S.; Pienaar, L. A.; Raubenheimer, A. J.; Reyneke, J. P. A.; Roux,P. C.; Schoeman, H.; Scott, D. B.; Snyman, W. J.; Steyn, D. W.; Ungerer, J. H. B.; Van den Berg, J. C.; Van der Merwe, H. D. K.; Van der Spuy, S. J. H.; Van Heerden, R. F.; Van Tonder, J. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vlok, A. J.; Volker, V. A.; Vorster, B. J.; Vosloo, W. L.; Wentzel, J. J. G.

Tellers: J. M. Henning, N. F. Treurnicht, A. van Breda and C. V. van der Merwe.

Noes—40: Bartlett, G. S.; Basson, J. D. du P.; Bell, H. G. H.; Boraine, A. L.; Cadman, R. M.; Dalling, D. J.; Deacon, W. H. D.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven (’t Hooft), R. E.; Graaff, De V.; Hickman, T. Jacobs, G. F.; Lorimer, R. J.; McIntosh, G. B. D.; Miller, H.; Mills, G. W.; Mitchell, M. L.; Murray, L. G.; Oldfield, G. N.; Olivier, N. J. J.; Page, B. W. B.; Pyper, P. A.; Raw, W. V.; Schwarz, H. H.; Slabbert, F. van Z.; Suzman, H.; Van Coller, C. A.; Van den Heever, S. A.; Van Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Waddell, G. H.; Wainwright, C. J. S.; Webber, W. T.; Wood, L. F.

Tellers: E. L. Fisher and T. G. Hughes.

Question affirmed and amendment dropped.

Clause agreed to.

Clause 2:

Mr. Chairman, we on this side of the House have had a long, hard look at the proposed section 16A inserted by clause 2 and although it raises a presumption against an accused in order to prove his innocence rather than the onus being on the State to prove the guilt of the accused, we are prepared to accept in broad outline the fact that it becomes almost impossible under certain circumstances to prove the guilt of an accused person without placing an onus on him to prove his innocence. However, we find extreme difficulty in accepting subsection (2) of the proposed section 16A which states—

We find great difficulty in accepting this subsection, and accordingly I move the amendment standing in my name on the Order Paper as follows—

The effect of this amendment is to delete subsection (2). This subsection refers specifically to subsection (1)(b), which stipulates that an accused must prove that he took all! reasonable measures to prevent an act or omission of the nature in question. The mere fact that he says that he forbade the act, will in terms of the Bill not be acceptable to a court. On the face of it, the responsibility of deciding upon the reasonableness of the measures taken by an accused to prevent an act or omission would rest upon the court before which the case is being heard. In the court’s weighing of the evidence in rebuttal of the presumption, the court will, of course, take into account all the background circumstances of the particular case. It will also weigh the background of the actual act or omission itself. It will weigh the general method and the mode of control of a principal over his agent and it will probably weigh the effect of the control measures which were introduced by the principal to control the acts and omissions of his employee. I think, too, that it will also weigh the state of mind of the employer in regard to those control measures. However, what is happening here is that the rights of the court to decide whether those are reasonable measures or not are being restricted. The court may find that the only reasonable measure the employer can take to prevent the act or omission, is to forbid the act either verbally or in writing. Even if the court finds that that is the only reasonable manner in which the accused can take steps to prevent that act or omission, the court is prevented in terms of subsection (2) from actually make a finding that there were, in fact, reasonable measures taken to prevent an act or omission. In other words, the normal responsibility resting upon the court to exercise an objective, and even sometimes a subjective, approach towards the reasonableness of the measures taken to prevent the act or the omission, is taken away by subsection (2). In fact, the court’s operations are trammelled as a result of subsection (2). We believe that this is not the sort of measure which should receive the support of this legislature. We believe it is bad legislation to insert this clause. We do not believe that the fact that a similar provision is included in the Liquor Act is a good argument to use in support of its inclusion in this particular Bill as well. The control measures, although similar in almost all respects to this measure, and in particular to the wording of subsection (2), which in fact is contained in the Liquor Act, are different because they control the operations in licensed premises. They also restrict matters to the operations of the licensee controlled by a Government measure. This legislation here, however, extends the provision to all businessmen and all the companies in existence throughout the length and breadth of South Africa. Although the hon. the Minister, in his speech in reply to the Second Reading debate last night, indicated that this measure was comparable to section 381 (5) of the Criminal Procedure Act, it is not in fact comparable.

I did not say that. I said that it was not as heavy as the onus and presumption in the other Act.

I am sorry to have to say that if that is what the hon. the Minister means, I entirely disagree with him. I believe that this measure is much more far-reaching than the measures set out in the Criminal Procedure Act. In fact, in the Criminal Procedure Act itself there is no measure similar to subsection (2). Subsection (2) is completely left out of the Criminal Procedure Act. It is not incorporated there whatsoever. Numerous examples could be given of how, in a certain situation, it would become an impossibility to discharge this onus on an employer.

You mean that if the Nat organizers speed it up one could lock Piet up?

The hon. member is quite right. However, I have another little story to tell the House. If I own a string of garages, with a manager running each of these garages, and I issue instructions that at none of these garages is petrol to be sold after hours in terms of the recent regulations promulgated by the hon. the Minister, I could still find that some petrol has in fact been sold just shortly after hours. In what other way can I prove that I have taken the necessary steps other than by stating that I have forbidden the act itself? I cannot keep a personal control over everyone’s actions. I can prove that I did not permit or connive alt the act. I can prove that the act or omission did not fall within the course of the employment or scope of the authority of the employee, but I cannot prove—and these are all linked together—other than by a forbidding statement to my employee, that I took any other reasonable measures to prevent that action. I am therefore out of court. I am therefore responsible for my act. I should like to multiply this by the thousands of cases which could occur, and even if one can occur, it is bad legislation. It is no good saying that it will occur on very few occasions. There is another instance. Take the case of a person who is driving a motor-car. If I have five commercial travellers employed by me, and they all exceed the speed limit in the course of their employment, or not during the course of their employment, without my permission or connivance at all, can I be held to be guilty? [Time expired.]

Mr. Chairman, I should like to move the amendment standing in my name on the Order Paper because this amendment is wedded to the amendment of the hon. member for East London City and the amendments are both part of the same concept. I move—

I should like to say at the beginning that what we said during the Second Reading was—and I think this was borne out by the evidence and I do not think that anyone will disagree—that if one is going to achieve the objects of this Act… [Interjections.] Oh, please, shut up!

Go on!

The object of this legislation… [Interjections.] I cannot hear myself talking.

You don’t know how lucky you are!

Are those juvenile delinquents over there going to support us?

Order! The hon. member may proceed.

The reasonableness of the application of the legislation will determine the public co-operation. We are being as reasonable as is possible. We agree that here one may deem the employer to be responsible for the acts of his employees and we agree that in the circumstances the onus should be on the employer—because the facts are peculiarly within the knowledge of the employer—to show that he not only did not permit or connive at such act or omission, but also that he took all reasonable measures to prevent an act or omission of the nature in question. We agree with that, but what we do not agree with is that it should be specified in advance in respect of every single possible offence—which we have no appreciation of now because we cannot possibly know the circumstances—that subsection (2) should apply. Subsection (2) provides that the fact that the employer forbade the act or omission of the employer is not in itself sufficient proof that he took all reasonable precautions. We feel that all that is necessary in these circumstances is to say firstly that he is deemed to have committed an offence; secondly, that the onus is on him, and that it can be discharged if the person proves to the satisfaction of the court that he did not permit or connive at the act and that he took all reasonable steps to prevent the offence from being committed. As I have said before, every single offence is different. They are all of a different nature and there are circumstances in the application of this legislation where there is nothing more that the person can do but to forbid his agent, his commercial traveller or the person over whom he can have no physical control in the circumstances, to do certain things. If our amendment is not accepted there will be an unreasonable application of this legislation. It will be unreasonable for the reason that it should in each case be up to the court to determine whether the person concerned took all reasonable steps. Where the Liquor Act is applied, there are fixed premises and the owners of those licensed premises are able to control what happens on those premises. At any rate, the owners are able to do so through one means or another. The principal or the employer in this case is unable to do so because we must not forget that this applies to the commission of any act which constitutes an offence under this Act. One such act is of course speeding. Let us apply this tricky question of speeding and let me take, as an example, the furniture removal business. In the nature of things a furniture removal van is away from the place of business of the owner. What is the owner of such a business expected to do other than to forbid the driver of his van to do certain things? I think this is the crucial question. This is what makes the situation so different. In the nature of things I think that the amendments moved by the hon. member for East London City and myself would make the application of this principle, a principle which we accept, reasonable. If the amendments are accepted, this provision will have the support of the public and could be applied properly, thus enjoining the public further to comply with the regulations made in terms of this legislation.

Mr. Chairman, before I move the four amendments standing in my name on the Order Paper, I want to refer briefly to the fourth amendment. If the hon. the Minister can give us an assurance that the words we propose to tack on to the end of the proposed new clause 16B(1) are unnecessary in law, I shall not move that particular amendment.

They are not necessary.

In that case, I move the remaining three amendments, viz.—

1. (1) On page 2, in line 26, to omit “and” and to substitute “or”;
2. (2) on page 2, in line 29, to omit “and” and to substitute “or”;
3. (3) on page 4, to omit lines 5 to 10.

One of these amendments has already been moved by an hon. member to my right. To start off with the amendment which concerns subsection (2) of the proposed new section 16A, I do not wish to repeat the arguments which have already been raised. I simply wish to associate myself with the hon. member in that I believe this subsection should simply be omitted from the Bill. If read in conjunction with paragraphs (a), (b) and (c) of the preceding subsection (1), it puts a totally unreasonable responsibility on the employer. It seems to me that the only way in which the employer can meet the provisions of paragraphs (a), (b) and (c) of subsection (1) and subsection (2) is by policing the activities of each and every one of his employees to an unreasonable extent. In addition, as I understand it—I hope the hon. the Minister will tell me if I am wrong—the words “shall not by itself be regarded as sufficient proof that he took all reasonable measures to prevent such an act or omission” leave an dement of discretion to the Attorney-General to decide in which cases he is going to bring a charge against a particular employer.

I am sorry that the hon. members for Paarl and Smithfield, who have some business experience, are not here. I want to ask the hon. the Minister whether he considers it reasonable that an employer who issues in writing a notice to an employee forbidding an act or omission, and does not permit or connive at such an act or omission, and takes all reasonable measures to prevent such an act or omission, is still found guilty of this offence if the employee commits an illegal act in the course of his employment. I hope the hon. the Minister will tell us the answer to that. I hope he will tell me too how it is possible under paragraph (c), in connection with which I put a question to him last night, for the offence to be legal in terms of line 20 which refers to an act or omission “which constitutes an offence”. The offence is either legal or illegal. I do not understand how an act or omission “which constitutes an offence” can be “legal or illegall”. What the hon. the Minister is asking for, is totally unreasonable in the world of business. We would accept paragraph (a) by itself, namely “that he did not permit or connive at such act or omission”. That is perfectly fair. We would accept that. However, now we come to the word “and”—this is beginning to build up the cumulative effect—and the fact that he took all reasonable measures etc. I hope that the hon. the Minister will tell me what the understanding in law of “all reasonable measures” is. I do not suppose the hon. the Minister is prepared to omit the word “all” at this stage. However, once again we have the build-up of a cumulative effect on the employer. In the first place there is the question of permitting or conniving at an act or omission. We agree that this is reasonable. However, in the second place such person has to prove that he took all reasonable measures to prevent an act or omission. In the third place—this is still cumulative—there is reference to an act or omission, whether legal or illegal. Finally, as has been pointed out and which I would agree with, all of this is subject to the fact that even the forbidding of an act which in a large number of circumstances can be the only action taken by an employer, cannot exonerate him and he is deemed to be guilty.

We want to ask the hon. the Minister to consider these amendments because the burden that has been imposed on business and businessmen generally is to my mind unreasonable. As I said in my Second Reading speech I suspect that this phraseology has just been taken holus bolus out of one law by the Government legal advisers and moved to another law. If these provisions are inserted in every law, very shortly it will be almost impossible to operate a business because it simply is not possible to police the activities of a large number of employees in terms of these provisions.

Mr. Chairman, the hon. member for Johannesburg North has introduced a new thought into the debate. He is prepared to say that if an employer can go to court and prove that he took all reasonable measures to prevent an act or omission he should not be guilty of the offence committed by his employee. This is irrespective of whether he connived at or permitted the act. That is the effect of what the hon. member for Johannesburg North is suggesting. For this reason we on these benches cannot support that amendment. As I read his amendment, where he substitutes the word “or” for the word “and” in line 26, the provision will then read—

1. (a) that he did not permit or connive at such act or omission; or
2. (b) that he took all reasonable measures…

In other words, if he proved that he took all reasonable precautions…

He takes all reasonable precautions.

Yes, but what about whether he connived at or permitted the act? [Interjections.] Yes, that is what the hon. member is saying. I am sorry, Sir, but we cannot accept this. Furthermore if such a person proves that an act or omission whether legal or illegal did not in any way fall within the scope of his employment, he is not guilty at all.

You are not doing too badly this time, Warwick.

I am glad to hear that I have the support of the hon. the Minister so far. I hope that he will continue to support me in what I have to say just now.

I doubt that very much.

As I say, we cannot support this amendment of the hon. member for Johannesburg North.

We come now to the question of the application of this provision. We have heard from the hon. member for East London City and the hon. member for Durban North why we have certain objections to this provision. There is one particular aspect here to which I do not think the hon. the Minister applied his mind sufficiently in drawing up these amendments.

Give me some information.

I am going to explain it now. To save a lot of time I want now to move the amendments to this clause standing in my name on the Order Paper, viz.—

1. (1) On page 2, in line 20, to omit “manager or agent” and to substitute “or manager”;
2. (2) on page 2, in line 22, to omit “or principal”;
3. (3) on page 2, in lines 22 and 23, to omit “or principal”;
4. (4) on page 4, in line 3, to omit “manager or agent” and to substitute “or manager”;
5. (5) on page 4, in line 6, to omit “or principal”;
6. (6) on page 4, in line 12, to omit “manager or agent” and to substitute “or manager”;
7. (7) on page 4, in line 18, to omit “or agent”;
8. (8) on page 4, in line 24, to omit “or agent”.

I am sure the hon. the Minister and other hon. members have perused these amendments and, accordingly, have some idea of what I am getting at. The reason why I move these amendments is because there is a particular relationship which exists between an agent and a principal. That relationship is completely different from the relationship which exists between an employer with a manager and an employee and a manager. Where you have an employer with a manager and an employee you have a direct relationship where there is a continuous direct control by the employer over his employee or his manager. But, Sir, where you have an agent and a principal, there is no direct control or direct link whatsoever between them. In Natal we have such a thing as an agent’s licence, where a person applies to the licensing board for the area concerned and gets a licence to act as an agent. Many of these agents act for several principals. How is the hon. the Minister going to determine for which principal the agent was acting at the time when he committed the offence? Sir, take the question of speeding. Take the case where an agent who has the samples of six different manufacturers in his car exceeds the speed limit. Which principal is the hon. the Minister going to act against? Sir, where there is an employer/employee relationship, there is a direct link and direct control, but that does not apply to an agent/principal relationship. The hon. the Minister referred to section 160 of the Liquor Act.

Section 161.

Section 160 has a similar provision.

Section 160(1).

Section 161.

Sir, I do not think we have to argue over that at the moment. The hon. the Minister knows that that Act is quite explicit. It refers to the premises and to actions which either occur on the premises or which originate on the premises, and where the licensee in terms of the Act is required to exercise continuous personal control over the premises and staff. That is why I can accept this provision where you have a direct link, a direct relationship, between the employer and his employee. There you have direct control by the employer. But in the case of an agent and principal there is no control. Sir, the principal might even be somebody who is overseas; it might even be somebody who is in a foreign country. Unless the hon. the Minister is prepared to introduce into this legislation a definition of “agent” which will limit it to somebody who is under the direct control of the employer— or principal, if he wants to call it that—then I am afraid we cannot accept these provisions as they are. I appeal to the hon. the Minister to consider this matter, because subject to the amendments moved by the hon. members for East London City and Durban North, we are prepared to accept these provisions in so far as they relate to an employer and his employees, in other words, to people who are directly under his control, but the relationship between a principal and an agent is so wide and they are so far apart from each other that we do not believe that it would be fair to apply these provisions to them as well.

Sir, may I just say this in support of the argument in favour of the amendment of the hon. member for Johannesburg North and against what has been said by the hon. member for Pietermaritzburg South. I think if the hon. member for Pietermaritzburg South looks at this amendment again he will se that in fact his argument is not valid, because subparagraph (a) quite clearly says “that he did not permit or connive at such act or omission” and (b) says “that he took all reasonable measures to prevent an act or omission of the nature in question”. If you take all reasonable measures to prevent an act or omission, then obviously you are not conniving at such act or omission. Subparagraph (c) says—

The hon. member suggests the deletion of the word “and” after subparagraphs (a) and (b) and the substitution therefor of the word “or”. It is quite clearly ridiculous to suggest that the argument of the hon. member for Pietermaritzburg South is valid.

Then I would like to deal with the proposed deletion of the proposed new section 16A(2). In this connection I would like the hon. the Minister to tell us exactly what an employer can do, apart from forbidding his employee to do a certain thing, I think there are many legal precedents for this, especially under the insurance law. In many insurance contracts it is a specific condition of the contract that all reasonable precautions must be taken, but it has been found to be very difficult to prove in law that all reasonable precautions have not been taken. I wonder if the hon. the Minister would care to react to that. In 16B there is just one thought which I think the hon. the Minister should take into account, and that is that not only could it be an error, but it is also possible that an employer might do something with malicious intent in order to get at an employee. I wonder whether the Minister has thought of that aspect.

Before the hon. the Minister gets up to reply to the various points, I would just like to raise one point. If the hon. the Minister looks at line 23 on page 4 of the English version, he will see the words used are “unless it is proved that the statement or record was not made by such person or his employee or agent”. I want to draw the hon. the Minister’s attention to the grave difficulty which the courts have experienced in criminal cases in being able to ascertain just exactly what the word “made” refers to. In fact, things go so bad that I think the hon. the Minister will recollect, unless he was not in Parliament during those days, Act 25 of 1965.

I was not in Parliament then, but in the provincial council.

So we were then subjected to his presence in the provincial council. I refer to the Civil Proceedings Evidence Act, No. 25 of 1965. There the legislature actually defines what “made” is. Section 34(4) of that Act reads—

In other words, a connection created between the actual recording and the person who was supposed to have made it—

What I am referring the hon. the Minister to is this. I believe that in future we may find some difficulty with the interpretation of just exactly what the word “made” means. I believe that perhaps he could look at this afresh between now and the time it goes to the Other Place, and perhaps extend the wording from “made” to cover a broader field and to define it more narrowly.

I want to say immediately that I obviously did not specifically go into the interpretation which can be attached to the word “gemaak” or “made”. I shall consider it. Nor did I consider the Magistrates’ Courts Act to see what the relevant provision is there, but I shall do so before I go to the Other Place.

Sir, before replying to hon. members, I want to say I find it terribly difficult to understand the reasoning of hon. members. You know, we dealt with a Bill in connection with the sale of agricultural produce this year, the Agricultural Produce Agency Sales Act, 1975. And what do I find in this Act? Here I find that the presumption of an offence is created in section 59(1). It says a person shall be guilty of an offence and can be sentenced, unless he proves that, (a) he did not permit or connive at such act or omissions; (b) that he took all reasonable measures to prevent an act or omission of the nature in question, and—for the information of the hon. member for Johannesburg North—it was not under any condition or in any circumstances within the scope of the authority or the course of the employment of the employee or agents to do or omit to do acts, whether lawful or unlawful, of the character of the act or omission charged.

There you are. It is creeping into all the Acts.

Yes, they are creeping in, but what is most surprising is that this one did not creep in; this one was adopted by this hon. House without opposition, in fact more than that, with the actual support of the hon. members opposite. [Interjections.] No, I am talking about this specific clause. And this specific clause is on similar lines, in terms of contact and wording, as this one here. Not only was it not opposed, but I say that it was actually supported, because when this particular Act was considered, in the Second Reading, it was supported by the hon. member for Durban Point. [Interjections.] Just one moment. It was supported not only in the Second Reading, but also in the Committee Stage, because I have their Hansard here. In col. 1469—

*Now I have problems. The hon. member for East London City says it crept in, in other words, the Opposition tells me that nobody realized it, because that is what “crept in” means. [Interjections.] Yes, it crept in.

That is altogether another matter.

No, it is not another matter. It goes much further, because the same point about which the hon. member for Pietermaritzburg South has been arguing with me the whole afternoon is the question of the principal or agent.

He has control.

He does not have control. The hon. member for Jeppe must please stay out of this, because he knows nothing about it. I just want to make the point that all the hon. members on the opposite side, all the groups, reformed or unreformed, supported it. Why?

We just missed it.

That is not the only thing that he has missed; I can assure him that there are a lot of other things he has missed. I do not want to believe that the hon. members on that side of the House are so unobservant that they did not notice it. Surely, that cannot be the case.

What about the merits of the case? Forget about these other arguments now.

Please, Sir, you must please tell the hon. member for Hillbrow to go back to the coffee lounge, because all he comes here for is to make a noise. [Interjections.] I do not know what they serve there.

What are the amendments? I want to deal with the amendments now. The first one which has been put, is that of the hon. member for Johannesburg North. The hon. member asks that sections A, B and C be stated in the alternative, and it seems to me that the hon. member is supported by the hon. member for Randburg. In this respect, the hon. member is opposed by the hon. member for Pietermaritzburg South. He is not only opposed by that hon. member, but is also opposed, historically, by himself, because in this session, he has voted for legislation with exactly the same provisions. Therefore, the hon. member is opposed by himself. In other words, all the arguments which the hon. member used to say how impossible it is to deal with matters under such, a system, no longer apply, because he has already accepted it.

It is not so, because it was under totally different circumstances. One is in fixed premises, while the other is not.

Since when does a dealer in fresh produce necessarily only deal on fixed premises? The hon. member for Orange Grove must please not think that we only sell oranges. I merely want to imply by my statements, without taking up hon. member’s time, that we should at least adopt standpoints to which others can listen. I do not intend to accept the amendment in that particular subsection. I said, and I want to repeat now, that where we believe that the efficiency of the application of the particular Act, or the efficiency of the application of the measures depends on the co-operation of the public outside, and where we believe that if everyone acts together and encourages co-operation, we shall get back to the position which prevailed previously and hon. members will concede that we cannot show mercy to those people—there are only a few of them—who disregard the measures in a reckless manner. The hon. member for Durban North said— I agree with him and concede this point to him—that most of the facts stated in this rebuttable presumption, are actually facts which are, in broad terms, within the specific knowledge of the owner, principal or employer. That is true. I concede immediately that in certain circumstances it will be difficult to rebut the onus. In the second place, we cannot speculate now about every set of circumstances, because then we shall never finish. But we must at least give the people who apply and administrate laws, credit for a degree of intelligence. I want to give an example. The hon. member for Pietermaritzburg South, moved in his amendment that we omit the concept of “principal and agent”, because, he asks, what of the agent who works for five principals? It is obvious that when prosecutions of this nature are instituted, people will use their discretion. Let me remind him of the case of a director of a company who is responsible for all actions, in terms of the Companies Act, in spite of the fact that he is certainly not involved in such actions. The principal of an agent is also responsible for the actions of his agent, but the director of a company has less control over the company’s employees. The hon. member for Pietermaritzburg South suggests that there is a difference between a principal and an agent. I concede this; there is a difference.

A difference between what?

He says there is a difference between a principal and an agent on the one hand, and an employer and an employee on the other. I concede this, but the hon. member will also concede to me that there is a common factor. Although there is a difference in the relation, a relation still exists. In many cases, there is a contractual relation between the principal and the agent, and in many cases, a contractual relation also exists between employer and employee—in fact, there is always a contract, whether oral or written.

He has not control over him.

The point is not whether he has any control over everyone, because the circumstances determine once again what the case is. There are principals who have control over agents. We have just heard that the hon. member for Jeppe said that there are principals who have control over their agents. The hon. member referred to the legislation relating to fresh produce. The hon. member for Durban Point, however, interjected and said that this was not the case. The fact remains, however, that it is the case. The essence of this section—I am now answering all hon. members and I ask that they accept it this way—is that we are dealing with a presumption which is established for a specific purpose. In the first place, the facts are normally within the knowledge of the accused, and in the second place, it is very easy for an employer or principal to shift responsibility on to an agent or employer. That is the essence of the whole matter.

Hon. members ask that I delete section 16A(2). This subsection provides, inter alia, that the mere prohibition of a deed is not sufficient proof that all reasonable steps have been taken. I do not intend to accede to this request. I now want to answer immediately to the arguments of the hon. member for Johannesburg North. The fact that we have this subsection, does not mean that a prohibition cannot represent the totality of the reasonable measures which can be taken in given circumstances. The hon. member asked me such a question, and I am now replying to it.

†I should like to repeat this. The mere fact that we say in subsection (2) that an agent or an employee has been forbidden, by the employer or the principal, it does not mean that the employer or the principal has taken all reasonable steps. It could very well be that in certain circumstances the only steps he could have taken would have been steps to forbid the action. I hope the hon. member is satisfied on that point.

*We must have these particular presumptions in the form in which they are before us, because it is difficult to prove offences of this nature and because it is absolutely essential that we should be able to do so. In fact, we want to do so, because we believe that it is possible for an employer or agent to refute the onus which rests on him in terms of the presumption. However, to determine how he is to do so in these circumstances, is unreasonable in my opinion. I think the circumstances of each case will determine what is reasonable proof for the rebuttal of the presumption against a person, in the specific circumstances.

The hon. member for Durban North moved that we delete section 16A(l)(e), which is being inserted by clause 2. I have already said in my reply that we are not going to delete it. I have pointed out that 16A(1)(c) is necessary, and also that it is accepted by hon. members on the opposite side in all circumstances as a reasonable provision in these specific circumstances.

The hon. member for Johannesburg North tried to add! certain words in his fourth amendment, which he said he would not move. The fact remains…

Order! The amendment is not at issue, because it was not moved.

Very well, Mr. Chairman. In my opinion I have now replied to all hon. members in general terms. I just want to repeat what I have said on so many occasions, viz. that we are dealing here with measures which are in the national interest. We all agree about this. We are dealing with measures which we have to make enforceable in practice. The method by which we believe that this can be done, is described in clause 2, as it stands.

Finally, the people who, in the final analysis, are going to deal with clause 2, are the people in the private sector. I have written evidence, or rather acceptance —if hon. members want me to, I shall quote it—from the Federated Chamber of Industries, in which they, like hon. members on the opposite side and many of us on this side, say that although one should use presumption sparingly, because it affects the onus rule in our legal system, they give their unqualified agreement, in these circumstances and for the purpose of these measures, to all the provisions as they stand here.

Mr. Chairman, I am not qualified to join shark’s alley, but to me, as an ordinary bush lawyer, words must have a meaning. The hon. the Minister says that the exclusion of a prohibition does not mean that that will not be taken notice of in a court if that is the only action that could have been taken.

I said it would be taken.

He said it would be taken.

It could in certain circumstances be the case.

It could. The simple words here state that the fact that an accused forbade an act or omission of the nature in question—

It is loud and clear; there can be no argument about what the words say or about what they mean. If circumstances arise where this is the only control which an accused had and the court is convinced that this is the only reasonable thing which he could do, the court is forbidden from accepting that prohibition by itself, because the law says so. Whatever the hon. the Minister has said in the debate does not matter, and whatever is printed in Hansard does not matter; what matters are the words in Statute. If this subsection is passed the law says that it shall not by itself be regarded as sufficient proof. Who is the hon. the Minister misleading?

I am not trying to mislead anybody.

Here we have the wording. Let us look at the Afrikaans wording—

It is clearly stated in both languages. There is no argument about what it means. There is no argument at all that it excludes the court unless the hon. the Minister had some dictionary which we have never heard of which defines “shall not be regarded as sufficient” as being “sufficient”.

Let us come to the other aspect, the aspect of the agent. This is a field of business in which I am active myself. A person has agents all over the place to sell his goods and the only contractual link he has with those people is that they sell for him. My own business is an agency business and I sell for other people.

They have no control over how I run my business; they have no control over my staff; they have no control over my vehicles. The only contractual link I have with them is that they supply goods through me which I then sell. I also have sub-agents who sell my goods, but I have no control over their staff. If one has an agent on that basis, how on earth can the principal be held responsible for that agent when the principal has no power over him? The principal is not allowed to forbid him even even if it were permitted for a prohibition to be taken as sufficient action. He cannot even prohibit him, let alone have it accepted in court. Therefore, how can a principal control the agent? I think that the hon. the Minister is being unreasonable here. We are not seeing ghosts but we are trying to protect people from provisions which are clearly unfair and which clearly place an accused in a position where the law would enable an injustice to occur. I ask the hon. the Minister, both in regard to the question of the agent as well as on the meaning of subsection (2)—the subsection which says that a prohibition shall not be deemed to be sufficient evidence—to explain to us how he makes these words mean what they are not.

Mr. Chairman, I must agree entirely with all the hon. member for Durban Point has said in regard to the prejudice against the accused in terms of subsection (2), i.e., an employer or principal. I also want to put it that I think the hon. the Minister has lost sight of the arguments raised by my friend, the hon. member for East London City. He raised the point that the discretion of the court is removed in this clause, that the court has no discretion whatsoever to consider the matter at all, simply because the court is bound by subsection (2).

And the Minister has accepted that circumstances can arise where the court will act at its own discretion.

It is quite correct, the hon. the Minister has accepted that. Unfortunately the hon. the Minister seems to have made up his mind that he does not want to listen to this argument.

[Inaudible.]

The hon. the Minister need not fly off the handle. I want to say to the hon. the Minister that I do not believe that two wrongs make a right. The hon. the Minister says the same provisions apply in the Commission for Fresh Produce Markets Act. I want to say to him that the fact that the provisions of subsection (2) in that Act as well does not make this any more right. In fact, I believe it makes it more wrong. I also want to use the expression which was used by the hon. member for Durban Point. Why does the hon. the Minister come here and mislead the Committee this afternoon? Quite correctly he quoted the Agricultural Produce Agency Sales Act, but why does he equate the relationship that is anticipated in section 59 of that Act with the relationship that is anticipated in this clause? I was at pains to explain to him earlier the difference in the relationship.

What is the difference?

The hon. the Minister must give me a chance, just as he has been asking to be given a chance this afternoon. Why does he equate the relationship that is anticipated in section 59 of the Agricultural Produce Agency Sales Act with the relationship anticipated here? As I said, I was at pains to explain to him this afternoon that the relationship which exists between an employer and an employee is not only contractual but there is also direct control. I am sure the hon. the Minister accepts this. All he has to do is nod his head to show that he accepts the fact that this relationship is different from the relationship that exists between a principal and an agent who could be thousands of miles apart. The principal could be in Cape Town and the agent in Johannesburg, 1 600 to 1 700 km away. The only relationship between them is a piece of paper, a contract, and as was pointed out by the hon. member for Durban Point, the principal in such a case has no control whatsoever over the agent or his actions. The only relationship which exists between them is in connection with the sale of certain products.

Let us come back to the Agricultural Produce Agency Sales Act. What is the position here? I quote from section 59(1) of that Act:

Who is bound here? It is the employee or agent of the commission agent or livestock auctioneer. I want to say that this is in the nature of an employee and an employer. This does not lay down that the farmer is responsible for any offences committed by the commission agent. I want to say that in terms of the Bill we have before us, the relationship involved is the same as that between the farmer and the commission agent. The hon. the Minister shakes his head, but I want to say that he is totally wrong.

They are totally different concepts.

Yes, there is a totally different relationship between the commission agent and his employee or agent who is the person in the market place. If the hon. the Minister takes the trouble to look a little further, he will find that the offences referred to in this Act are all committed in the market place. They are not simply committed anywhere in the Republic. They are not committed 1 600 km away from where the principal is situated. This is the whole basis of my amendment. The whole basis on which we on this side of the House disagree with the hon. the Minister is that he is bringing into this Bill a completely different relationship. I believe it is wrong of the hon. the Minister to try to draw an analogy between this Bill and the provisions of the Agricultural Produce Agency Sales Act.

Mr. Chairman, I should like to come back to subsection (2) of the proposed new section 16A, being lines 5 to 10 on page 4 of the Bill. There must be a reason why the hon. the Minister has included this subsection. The reason is that in many instances in civil law when one has to prove that reasonable measures have been taken, the mere fact that one has forbidden one’s employees to take certain actions is regarded as proof of this. On the balance of probabilities it is taken as proven. I should like to ask the hon. the Minister why he feels that in this instance it is necessary to go further than that.

Mr. Chairman, I think the answer to the question put by the hon. member for Randburg is quite obvious. An employer can just send out a notice, a written notice which he can prove was sent out, to the effect that he forbids his employees to do a certain thing. In the meantime, he can give them a verbal instruction to do that very thing. We are dealing here with the question of evidence. This is evidence which is required to prove a contravention of the Act.

May I ask the hon. the Minister a question?

Yes, certainly.

Am I to understand that if such an employer has given those instructions in all good faith and that at no time has he counteracted those instructions or given any indication that he wants those instructions counteracted, that will be adequate proof to satisfy the hon. the Minister?

No, that does not follow. The hon. member put a specific question to me and I have given him a specific answer. Subsection (2) makes provision whereby a prohibition or a direction not to do something shall not in itself be evidence that all reasonable steps were taken to prevent the act. The hon. member for Durban Point suggested that I was misleading the House when I said that in a certain set of circumstances that could be the only thing. However, the further point is the circumstances within which people operate. Let me take this further. Let me take the point made by the hon. member for Pietermaritzburg South. His point was that the relationship between the principal and the agent was different from that between the employer and the employee. The point he makes and the example he quotes to substantiate that point is that the principal may be stationed in Cape Town and the agent in Johannesburg so how can the principal be presumed to be responsible for the deeds or the actions of his agent? There are many instances where employers are in Cape Town and their employees are in Johannesburg. [Interjection.] Just one moment. The hon. member mentioned the question of distance. He said it was difficult because the man operates so far away. That is true. In any reasonable application of these provisions and of this law circumstances will determine that all the requirements of the other sections have been met. I do not see how it can be argued that there is an unfair presumption against the employer or the principal.

May I ask the hon. the Minister a question?

Yes, certainly.

Does the hon. the Minister agree that it is trite law that the vicarious responsibility between an agent and a principal and an employer and an employee differs completely?

In terms of the civil common law there is a difference in the vicarious responsibility between an employer and an employee and an individual contractor. [Interjections.] Please, I am trying to give you an answer. This is a legal argument and it is difficult to deal with these points when one is continually being interrupted. An agent appointed under a power of attorney—the hon. member knows that—could well be responsible in terms of the principle of vicarious responsibility. Can the principal be held responsible for the action? The circumstances to determine are whether or not the man operates completely independently. [Interjection.] Then I submit this will not apply. All I am trying to say is that there is not always a line of distinction that can be drawn between the principal and the agent and the employer and the employee. Let us make the point that the hon. member himself makes. He says that I am misleading the Committee in referring to the agricultural produce agency measure, the principle of which they supported. He argues that the commission agent is an agent of the farmer.

Of course he is.

A commission agent could be the principal in relationship to another agent. The hon. member misses the point completely. In that case the commission agent becomes the principal as far as the agent is concerned. Sir, I think we are wasting the time of the Committee. I am not prepared to accept the amendment.

Mr. Chairman, I only want to take up one minute. I have one specific question for the hon. the Minister. I am now talking only about the proposed new section 16A(1)(a), (b) and (c). Sir, you start off with the presumption that the employer is guilty unless he proves that he did not permit or connive at such act or omission. Let us say that the employer satisfies the court on that score. He also has to prove that he took all reasonable measures to prevent an act or omission. Let us assume that he also satisfies the court on that score. He is still guilty, as I understand it, if his employee in the course of his employment did an illegal act. If that is so, I think it is a most unreasonable onus to place on the employer.

Sir, I cannot understand the hon. member. It is not unreasonable. If the hon. member will refer to the judgment in Rex v. White and Another…

I am not a lawyer.

That is quite dear.

I will try to explain it slowly to the hon. member. This man was charged in terms of section 160(1) of the Liquor Act, where there is a like presumption. The hon. member referred to the provisions of paragraph (c). Let me quote the relevant portion of the judgment in that case to him—

1. (c) it was not under any condition or in any circumstance within the scope of the authority or the course of the employment of the manager, agent, servant or member of the family to do or omit to do acts whether lawful or unlawful of the character of that of the act or omission charged.

In this case it was decided that the legality or illegality of the act is not the determining factor, but the character of the act. Let me now quote to the hon. member the relevant portion of the judgment—

It is the character of the act that is the determining factor, and not the legality or the illegality of the act.

Mr. Chairman, I will be brief. The hon. the Minister has not yet justified the existence of subsection (2) in relation to the example given by the hon. member for Durban Point. Sir, what happens? Someone who is your employee is speeding as your commercial traveller somewhere in the Transvaal and you are the employer here in Cape Town. You as the employer are deemed to be guilty of that offence of speeding in the Transvaal, unless you can prove the three things which are mentioned in (a), (b) and (c), so you prove (a) that you did not permit or connive at the act or omission; you prove (c), that is, that the act or omission did not fall within the course of the employment or the scope of authority of the employee. Sir, what else can the employer do except to prove that he did not connive at the act and that the act did not fall within the course of the employment or the scope of the authority of the employee? He then says, “I have done all that I can and I forbade my employee to do this.” Sir, he must nevertheless be found guilty because he is deemed to be guilty and it is specifically provided that the fact that he forbade an act or omission shall not in itself be regarded as sufficient proof of his innocence. Sir, we go further than to say that this is unreasonable. It is grossly unreasonable in those circumstances.

Mr. Chairman, I find myself a little confused by this, too. I have looked at the situation in the case of the Agricultural Produce Agency Sales Act, to which the hon. the Minister has referred. We have a similar provision there, but there one can see that on one premises an employer can build in checks and balances whereby he can have some sort of control over an employee, but like the hon. member for Durban North I find it difficult to know exactly what steps an employer should take to stop, for example, a commercial traveller from speeding on the roads. He can forbid him, certainly, but this is not enough in terms of the Act. Could I ask the hon. the Minister to give us some idea, perhaps some guidance to employers, in regard to exactly what he suggests should be done by an employer to control this sort of thing?

Amendment (1) moved by Mr. W. T. Webber negatived and amendments (4) and (6) dropped (Official Opposition dissenting).

Amendment (2) moved by Mr. W. T. Webber negatived and amendments (3) and (5) dropped (Official Opposition dissenting).

Amendment (1) moved by Mr. G. H. Waddell negatived and amendment (2) dropped (Progressive Party and Reform Party dissenting).

Amendment moved by Mr. M. L. Mitchell negatived (Official Opposition dissenting).

On amendment moved by Mr. H. G. H. Bell,

Question put: That the words stand part of the clause,

Upon which the Committee divided:

Ayes—77: Albertyn, J. T.; Ballot, G. C.; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha, L. J.; Botha, M. C.; Botha, P. W.; Brandt, J. W.; Clase, P. J.; Coetsee, H. J.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Wet, M. W.; Du Plessis, A. H.; Du Plessis, B. J.; Du Plessis, P. T. C.; Du Toit, J. P.; Engelbrecht, J. J.; Greyling, J. C.; Hartzenberg, F.; Hefer, W. J.; Heunis, J. C.; Horn, J. W. L.; Janson, T. N. H.; Koornhof, P. G. J.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Grange, L.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Lloyd, J. J.; Loots, J. J.; Louw, E.; Malan, G. F.; Malan, J. J.; Malan, W. C.; Maree, G. de K.; McLachlan, R.; Meyer, P. H.; Morrison, G. de V.; Muller, H.; Muller, S. L.; Nel, D. J. L.; Nothnagel, A. E.; Palm, P. D.; Pansegrouw, J. S.; Pienaar, L. A.; Raubenheimer, A. J.; Reyneke, J. P. A.; Roux, P. C.; Schoeman, H.; Scott, D. B.; Snyman, W. J.; Steyn, D. W.; Ungerer, J. H. B.; Van den Berg, J. C.; Van der Merwe, H. D. K.; Van der Spuy, S. J. H.; Van Heerden, R. F.; Van Tonder, J. A.; Van Wyk, A. C.; Viljoen, P. J. van B.; Vilonel, J. J.; Vlok, A. J.; Volker, V. A.; Vorster, B. J.; Wentzel, J. J. B.

Tellers: J. M. Henning, N. F. Treurnicht, A. van Breda and C. V. van der Merwe.

Noes—41: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Cadman, R. M.; Dalling, D. J.; Deacon, W. H. D.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven (’t Hooft), R. E.; Graaff, De V.; Hickman, T.; Jacobs, G. F.; Lorimer, R. J.; McIntosh, G. B. D.; Miller, H.; Mills, G. W.; Mitchell, M. L.; Murray, L. G.; Oldfield, G. N.; Olivier, N. J. J.; Page, B. W. B.; Pyper, P. A.; Raw, W. V.; Slabbert, F. van Z.; Streicher, D. M.; Suzman, H.; Van Coller, C. A.; Van den Heever, S. A.; Van Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Waddell, G. H.; Wainwright, C. J. S.; Webber, W. T.; Wood, L. F.

Tellers: E. L. Fisher and T. G. Hughes.

Question affirmed and amendment, with amendment (3) moved by Mr. G. H. Waddell, dropped.

Amendment (7) moved by Mr. W. T.

Webber negatived and amendment (8) dropped (Official Opposition dissenting).

Clause agreed to (Progressive Party and Reform Party dissenting).

House Resumed:

Bill reported without amendment.

Mr. Speaker. I rise to support the amendment moved by the hon. member for Durban North and to associate myself with what he said about it by way of introduction. I am also in agreement with the outstanding motivation of the amendment provided by the hon. member for East London City and with the analysis provided by the hon. member for Johannesburg North. It is really a matter of deep regret to me that it is apparently impossible to reach, a degree of unanimity in this House, even about a matter such as this. Surely it is clear that everyone in this House feels the need to get away from discrimination, that everyone desires to provide the non-White members of our population with better facilities and that we are all interested in putting South Africa’s case as well as possible as far as foreign impressions are concerned. But in spite of this we find it impossible to propose action on which we all agree. Consequently I want to appeal to the hon. the Minister in advance to consider whether we really have to continue with this measure at this stage, in the light of the considerations mentioned by the hon. members for East London City and Durban North in particular.

I was not a member of the Select Committee and consequently I am not going to deal with the report of the committee. The hon. member for Jeppe, who was a member of the committee, will deal with specific points which arose out of the report.

It seems that we can summarize in three points the essence of the problems that have cropped up in practice. Firstly, there are differentiating measures at this level. In the second place there are restrictions on the use by non-Whites, on the one hand, and by non-Whites and Whites together on the other hand, of the facilities provided by licensed undertakings, specifically hotels, wine and beer establishments and licensed restaurants. In the third place there is uncertainty and confusion as regards (1) the legal position and (2) exactly which body is supposed to have the power to give the necessary permission. Those problems are set out in the memorandum by the Department of Justice.

Order! I appeal to hon. members not to converse so loudly.

The problems are set out on pages 13 and 14 of the memorandum and I do not consider it necessary to quote them to the House at this stage.

I tried to judge this Bill in the light of the existing demand and what we are trying to achieve. I shall try to indicate that although the Bill is an improvement in certain respects—and this is in fact something to be grateful for—basically it does not provide a satisfactory answer to existing problems and requirements. In my opinion, the question as to which changes we should effect here must therefore be seen against the background of four factors. Firstly, there is the growing number of non-White visitors from abroad and representatives in South Africa. Secondly there is the growing number of South African non-Whites who, particularly owing to their socioeconomic status and the increase in their standard of living, are becoming more and more entitled to the use of the same facilities as Whites. Thirdly, there is the necessity for what I want to call the normalization of contact between the various population or colour groups in South Africa. In the fourth place there is the necessity to get away from discrimination. It is against the background of these four factors that I should like to deal with this Bill and its possible implications. I think it will be generally conceded that these are basic aspects which we must take into account. The test we must set is whether these measures result in sufficient improvement when we set them against the situation we have at present, in view, of course, of the facets I have mentioned.

With reference to the evidence submitted and the speeches made, there appear to be four main objections to what one could call a really basic change in our present pattern. The hon. the Minister mentioned most of them in his introductory speech. Reference was made to the South African traditional way of life in this regard. On other occasions I have put it very clearly that all of us undoubtedly have great respect for traditional customs in a society. However, as soon as we legislate to provide for those customs, we are introducing aspects of immobility which have nothing whatever to do with the normal development of such, a tradition. By doing that we are lessening the possibility that through the development of points of view, ideas and feelings, normal and free adjustments could take place. In other words, the mere fact that a specific tradition exists is, in my opinion, no justification for the statement that we should now legislate to provide for that tradition. I want to add that it is very clear to us that over the past few years we have seen that in many respects, that tradition is no longer being maintained, nor can it be maintained any longer. The second general consideration is the fear—I am merely repeating the terms used by the hon. the Minister—of swimming together, dancing together and matters of that nature. I do not really want to dwell on that, except to say that I really find it regrettable that the hon. the Minister should even have considered it necessary to refer to this. In my opinion this is simply not the kind of argument which we, as mature people, can use. It can immediately be implied—whether or not this is done— that swimming together and dancing together are undesirable. It can immediately be inferred from that that the other people, particularly the Black people…

That is nonsense.

No, excuse me. The inference can be made that they are untouchable. Surely it cannot be said that there is an inevitable link between swimming together and dancing together and immorality. Surely we all know that, and I am sorry that that implication has been created. The hon. the Minister should really not take it amiss of me, because I fear that he himself created the implication. It is regrettable that he should have done so; I think that it was totally unnecessary, because after all, there is no prohibition of private parties which can be held at the thousands of private swimming baths in South Africa, where White and non-White can dance and swim together. To pick out these two specific aspects in the case of international hotels, seems to me to be something that simply does not behove us as adult South Africans. The third possible objection that is mentioned is that there might be a rush on the international hotels if they are thrown open to a greater extent. It seems to me that this objection, too, is baseless. Perhaps I could refer hon. members to what was said in reply to question 57 of the Select Committee’s report— if appears on page 12. The fourth objection is that the throwing open of hotels on a wider basis could prejudice the existing non-White establishments. It seems to me that there are really no grounds for concern in regard to this point either. My first reason is that there is a limited number of non-White establishments, and my second reason is that—as is clear from the report—it is probable that new establishments for non-Whites will not be called into being on a large scale. In other words, a saturation point has already been reached to a large extent, unless the authorities are going to be prepared to sink a large amount of capital into this. If we consider once again the revenue of the non-White hotels, we shall see that for the most part it is made up of liquor consumption and not the provision of accommodation and meals. When I say this, I am repeating the information provided to the Committee by Mr. Freedberg, a representative of Fedhasa. It seems to me that the objections which I have summed up in four points really lack validity.

Let us analyse the Bill against the background of the four factors I mentioned earlier. I want to begin with the question of foreigners. It seems to me that we can distinguish between the three categories mentioned in the new section 7 of the Liquor Act as amended by clause 1. Mention is made of accredited representatives and their staff and persons in possession of the necessary documents in terms of sections 5 and 7 of the Aliens Act. As far as they are concerned, I want to say that this is clearly an indication that progress has been made and as such it is welcomed. However. I want to refer to two basic defects which, as I understand the Bill—I stand to be corrected if my interpretation is wrong—are not included in it. In the first place, this provision does not apply to licensed restaurants, viz. if we take it that proclamation 228 of 1973 does in fact apply to licensed restaurants. In other words, if my interpretation is correct, the situation is then that such a foreign representative may in fact no to an hotel, but that he is prohibited by legislation from going to other licensed restaurants.

The second problem in this regard is the fact that when the accredited representatives want to entertain other South African non-Whites, they are restricted to international hotels. In other words, they would not be free to entertain South African non-Whites at hotels other than the international hotels because the other hotels would be contravening the Act by providing South African non-Whites with facilities. I think my interpretation is correct. In other words, although progress has been made, at once we are already facing new problems, viz. that the freedom of action even of those people whom we want to benefit here is being severely restricted. I want to state further that when we look at other categories of foreigners, viz. people from Lesotho, Botswana and Swaziland, we see that in terms of the provisions of the Bill they are not covered by this, unless they obtain some document placing them in one of the three mentioned categories, and it was indicated in an explanation that those people do not ordinarily get those documents. In other words, they, too, are obliged to use only those hotels indicated as international hotels. How, in the first instance, they are supposed to know that is something else again.

As indicated by the hon. member for East London City, these measures do not provide for ships’ crews, viz. sailors and similar visitors either. Nor, except by way of these international hotels, do these measures make provision for visits by our homeland leaders and other prominent guests from our homelands. Surely it is quite possible that those people will not necessary want to make use only of the limited number of international hotels envisaged here by the hon. the Minister, and there are various reasons for that. As regards the location of those hotels, too, it is quite possible that when these people pay a visit to White South Africa, they might not go near the large cities. What becomes of them then? This does not apply to them only, but to other prominent guests from our homelands as well. This, then, also applies a fortiori to the leaders of independent homelands, because I take it that when the Transkei, for example, becomes independent, prominent people from the Transkei will be treated on the same basis as the people from Lesotho, Botswana and Swaziland. In other words, they too will only have access to those hotels which have been proclaimed international hotels. We have very often said that when our own homelands become independent, the rights of people from those homelands will have to be regulated on an inter-state basis. It does not seem to me that we are being consistent here, because it seems to me that we are going to treat those people differently to Blacks from outside Southern Africa. I shall come back to that later.

I want to go further and ask how this Bill affects non-White South Africans. In this regard I have in mind in particular the situation which arises out of the normal movement of people in the course of their official duties, their public activities, their professional or business interests, etc. This includes, as is apparent from the report too, the movement of Chief Ministers and members of the Cabinet of the homelands, to which I have already referred, and of the urban representatives too, who are supposed to travel continually from place to place in order to make contact with the subjects of the homelands. We know them. Many of them are people whom, in all honesty, I have already had in my own flat. In other words, they are not people who can be objected to on the basis of a lack of development. This also includes members of the Coloured Council and the Indian Council, professors and lecturers of the non-White universities and colleges, businessmen and professional men, doctors, officials such as school inspectors and others. Surely it is very clear that this arrangement does not, in fact, provide adequately for the needs of these people. Surely that is very clear; we cannot argue about that.

In the fourth place I include in this category, meetings of non-Whites, congresses of whatever nature, beauty competitions, meetings of non-White bodies, lunches and other social functions. Surely it is clear that the proposed arrangement will only satisfy these needs in part, viz. in the large urban centres. The places where these international hotels will be situated are limited and the number of hotels is limited. If these hotels, then, are so limited and there is an increase in the demand, as is apparent from the data provided by the hon. the Minister, too, then surely it is clear that immeasurable problems are going to arise in this regard. I also just want to add that if the requirement is set that there may be no dancing at these international hotels, what choice do we have then? We may now set the condition that if there are only Whites they can dance, and if there are only Blacks they can dance with each other, but if Whites and Blacks attend a function together, there may not be dancing. I mention this merely to indicate the impossibility of a logical requirement in this regard, a requirement that does not carry a stigma. I want to repeat that in terms of the demand for meetings by way of congresses, lunches, wedding receptions and so on, this measure does not go far enough.

The third group of people who fall under this are travellers and tourists.

The hon. the Minister indicated that provision would be made for them to a certain extent. He said that stricter or more extensive limitations would be required. It is very clear to travellers that the provision which is made in this Bill as indicated by the hon. the Minister cannot even come close to meeting the demand. This problem is going to occur to an increasing extent. Owing to the increasing use of non-Whites by White firms in ever higher positions, e.g. as personnel officers it is going to occur that Whites and non-Whites will have to travel together to an increasing extent. This applies to universities, too. This is inevitable. We shall understand what kind of situation can develop there when at a given stage, as has often occurred to all of us who have been in that position, one arrives at a place and is told: “Man, I am terribly sorry but you are not allowed in this hotel; you had better go to another hotel in the Coloured area if there is one.” Mr. Speaker, if there is no other hotel—we have all had this experience—if there is no other place, then one has to go back and ask, “But look, is there not perhaps a servants’ room around the back?” I just want to tell the hon. the Minister—I see the chairman of the National Liquor Board is also here— I have yet to find the country hotel which provides adequately even for non-White employees as provided in this Bill. I am in the position, fortunately or unfortunately, of having to travel frequently with non-White employees. I do not even refer to employees; I refer to colleagues travelling together, Black and White. What are we going to do with them? What right do we have to say, “You work with me, but at a particular stage, when we come to hotels, you must go your way and I must go mine”; or “There is no place for you, I am terribly sorry.” Again a fortiori, what about eating places and restaurants? What must these people do? Where are they to go and eat?

I now come to the third main point I dealt with, viz. what I called the normalization of the contact process between White and non-White. It is very clear that we must seek and develop points of contact to an increasing extent. We must normalize the process of co-operation between White and non-White. That goes without saying. Now the question occurs as to the extent to which this legislation promotes that essential process which must take place in South Africa and which is taking place in any event. There is the issue of congresses, meetings, symposiums, attended by both White and non-White. I have a great deal to do with these matters, and I know what problems are involved in obtaining permission in that regard. I know of certain cases where permission has either been refused or the hotel proprietor, probably owing to being unaware of his rights, has said that he cannot allow it. The simple fact is that the facilities created in terms of this legislation are inadequate to meet this demand. The same applies to social gatherings attended by Whites and non-Whites; it applies to ordinary social intercourse between individuals belonging to the various population groups. I do not want to mention names but I do, in fact, have many good friends among the non-White population here in Cape Town whom I very often entertain at home, just as I am entertained by them at their homes. Now and then, however, one wants to go to a restaurant. These are people against whom no restaurateur could have the slightest objection. In other words, the situation in South Africa at this stage is simply that it is impossible to maintain that normal human contact here.

I have already referred to colleagues in business enterprises, universities and other bodies travelling together. At this stage I do not want to deal further with the issue of the employees to whom reference is made in the clause and who will have to be accommodated and attended to at separate places set aside in hotels. I just want to say that in many respects this is an arrangement which does not work satisfactorily in practice. Surely it depends on the relationship between employer and employee.

The fourth category I mentioned is the necessity to get away from discrimination. It is very clear that this measure perpetuates and aggravates discrimination. I want to repeat that: This measure perpetuates and aggravates discrimination. It is in conflict with the tendency we have noted in this House, too, over the past two years, viz. the tendency to prefer to avoid new forms of discrimination. I accept that we cannot do away with many of the old things because the social conditions have not changed yet, but I did have the feeling that we had come so far here that if at all possible we should not place new forms of discrimination on the Statute Book. In the third place we know that this arrangement is not going to satisfy the non-Whites, and in the fourth place it is surely very clear that this is again going to be used against us abroad as an example of discrimination. Sir, the Opposition must not be accused of giving our foreign critics a stick to beat us with, because it is very dearly stated here in clause 3—

This is an obvious form of discrimination, and if hon. members opposite think that this will not be quoted against us at U.N. and elsewhere, then they are wrong. [Interjections.] No, we need not let them know. They need only read Hansard and look at the Statute Book. After all, we cannot run away from reality. Sir, in conclusion, the hon. member for East London City mentioned six reasons here why this measure could not be accepted. [Time expired.]

Sir, it will not be necessary for me to dwell at length on the speech by the hon. member for Edenvale. All he did here was express his new ideal once again, and that was that he wanted to see the present structure in South Africa collapsing as soon as possible. That is what he strives for—the total collapse of the policy of separate development. He wants a fully integrated community. Sir, it is pathetic to have to listen to such a man, a man who, at one stage of his life, was a strong, proud, convinced advocate of the policy of separate development, not in his political role, but in his academic role.

But never of discrimination.

Sir, that hon. member is suffering from an exaggerated feeling of guilt. He is probably ashamed of his Afrikaner background and he is ashamed of his White skin. He might as well continue to sit with the friends he is sitting with now. We are going to carry out this policy of ours. Thirdly, Sir, I just want to say this in connection with his speech: 99% of the problems he mentioned are ones he has dreamt up. These hotel applications will all be considered with a view to the demand. As I see it, licences will be granted ad hoc to comply with the requirement of the place concerned.

Sir, the hon. member for Durban North made a big fuss here about the weaknesses of the existing Act.

He is not listening.

Sir, I am talking to the hon. member for Durban North. I want to debate with him. He made a big fuss here about the condition of the existing Act, but the fact of the matter is that the Liquor Act is an old Act. It is an Act which dates back to 1928. It is an Act which has been amended many times through the years. When this Act was placed on the Statute Book initially, it was unnecessary to provide for the cases for which provision must now be made. Sir, what did this hon. Minister do? Within two or three months after he took over as Minister of Justice, he decided that he did not like the situation he was confronted with; that he did not like having to go to the Attorney-General and say: “Turn a blind eye to this case”, and that is why he came up with a Bill which was referred to a Select Committee. This he did within a few months in order to rectify this situation. Sir, the hon. member for Durban North must not criticize the hon. the Minister. He should, in fact, praise the Minister for coming up with legislation to rectify the situation. The hon. member for Durban North criticized this legislation because it supposedly deprived non-Whites of facilities at open hotels which exist for them at present. That was his criticism. I want to put this question to the hon. member; I think the hon. member for Bloemfontein East made the same point last night: Does he agree that these hotels were only open de jure and not de facto? Sir, he cannot but agree with that. Now I want to ask him further whether he, as the chief spokesman of the official Opposition on justice and as a practising lawyer, knew that that was the de jure position? The hon. member is silent. Sir, the hon. member for Houghton intimated to me by way of an interjection that she had not known about the de jure position, namely that over 1 200 hotels were in fact open to non-Whites. Was the hon. member unaware that this was the de jure position?

[Inaudible.]

Sir, I am amazed to have to hear from the hon. member for Houghton that she, with that party’s brain trust, with all their advocates, with all the “bright backroom boys” up here, she did not know that this was the de jure position? I want to tell her that I believe that they did in fact know that the de jure position was that over 1 200 hotels in South Africa were open.

I am talking about the hoteliers.

I shall come back to the hotel proprietors in a moment. I want to tell the hon. member for Durban North that I believe that he, too knew that this was the de jure position. I want to say this to my good friends in Fedhasa, too. Sir, I know Fedhasa very well. We on this side of the House are on good terms with them, and I want to tell you, Sir, that as I know the Fedhasa people, I am convinced that they know every jot and tittle of the Liquor Act. Sir, this whole fuss about facilities that are now being taken away, coming from the hon. member for Johannesburg North and from all the members of the official Opposition, is entirely a matter of lip service. They have known what the position has been all these years, but they did not want to say so because they did not want the Black people, the Brown people and the Indians, to be accommodated in our hotels.

May I ask the hon. member a question? I would like to ask him why it is, if everybody knew about this, that every time hoteliers who had this right before 1970 wanted to admit non-Whites, they wrote for a permit to the Police Department, and why more often than not these requests were refused?

This was because the provisions of the Liquor Act were involved. They were entitled to provide accommodation and meals, but under the Group Areas Act they had to apply for a permit to provide liquor to non-Whites.

They were all under the impression that they would lose their liquor licence.

But, Sir, then it is they who erred in regard to the law. Does the hon. member for Houghton want to tell me that neither Fedhasa nor her “bright backroom boys” nor the United Party were aware of the de jure position? Sir, they must please not come to this House with such naïve arguments.

Were you aware that that was the de jure position?

They were aware that that was the position, but they were as silent as the grave. Why did the hon. member for Houghton, the hon. member for Durban North and the hon. member for Durban Point, when he was still attending the Fedhasa congresses, not tell the hoteliers that they could accommodate non-Whites?

What happened at our congress last year?

I do not know; I was not there.

They would not admit an Indian who does not drink at all.

It must have been an application under the Group Areas Act.

It was the manager.

Sir, the fact was mentioned here that Fedhasa supposedly wanted these hotels to be thrown open entirely. That is wrong. Fedhasa did not advocate that. I shall prove this very briefly. On page 28 of the report of the Select Committee, paragraph 130, Mr. Freedberg, who, if I am not mistaken, was the president of Fedhasa at that stage, said—

What does the hon. member for Houghton say about that?

Every hotelier who wants to should be allowed to.

This is not what Fedhasa said. I am now dealing with the evidence of Fedhasa, which was wrongly presented to this House by the hon. member for Johannesburg North and by the hon. member for East London City. [Interjection.]

*Sir, on page 30, paragraph 140, I asked the chairman of the Hotel Board certain questions, to which he replied as follows—

I then said in paragraph 141—

He then replied as follows—

And now comes the crux of the matter. He went on to state—

Then, in paragraph 144, page 31, in reply to a question asked by the hon. member for Johannesburg North, the president of Fedhasa states the following—

The hon. member quoted the same section yesterday—

And that is the key word—

That was the standpoint, the approach, the whole purport and spirit of the evidence submitted to the Select Committee by Fedhasa’s official deputation. [Interjections.] Sir, I want to say as regards this Bill by the hon. member for Durban North that we took them entirely by surprise. The Government and the hon. the Minister took them entirely by surprise with this legislation. They did not expect anything of the kind, and since he was afraid of the Progs he decided that by means of this legislation he was going to out-Prog the Progs.

We are not verkramptes.

Are you going to vote for this Bill?

No.

The hon. member for Durban North said, “This Bill flies in the face of evidence given on behalf of the Department of Foreign Affairs.” I do not know where he gets that statement from. I can only describe it as absolute rubbish and nonsense. The only objections brought up by the evidence of the Secretary of Foreign Affairs are covered by this Bill. But the Secretary of Foreign Affairs is only interested in visitors from abroad and problems that could occur with regard to their accommodation, and now there are no further problems as regards their accommodation. [Interjections.]

Sir, I still just want to say this in regard to the Bill, and I want to say it at this stage, before a subsequent speaker should perhaps complain about it again. Our side is going to move two amendments at the Committee Stage. I am not going to read the amendments now, but will only indicate their purport. The one is in regard to clause 81(3)(a). At the moment it is stated that the Minister must react to the recommendation of the National Liquor Board, viz. they have first to make a recommendation. The purport of the amendment to be proposed by this side of the House is that the Minister should have the discretion after considering a report from the National Liquor Board. Secondly, I shall move an amendment, the effect of which will be that if a situation were to arise which was not covered by this legislation, the Minister should have the discretion to grant ad hoc permission in such a case, in terms of conditions which he saw fit to impose.

I now come back to the hon. member for Edenvale. The Opposition ought to know, particularly at the end of a session such as this, that South Africa and the world know that the National Party is governing South Africa in accordance with its pattern and its policy and that the basis of that policy is separate development and the human dignity, equal facilities and so on that go with it. That is what we are doing in South Africa, and we are establishing a permanent foundation in this regard.

With laws only.

In the process we are realistic and we are prepared to take cognizance of existing needs. We accept the consequences of our policy fearlessly, and one of the consequences of our policy is this very matter of greater mobility owing to greater responsibility and activities brought about by the effect on the non-White people of South Africa of this party’s policy. As a result of this mobility, as a result of posts that have become open to them, the need has also arisen for them to be properly accommodated at places where accommodation cannot yet be offered by their specific colour group at the moment. The demand which occurs in this way is now going to be fully met. The hon. members complained about 10 licences in large centres. They are anxious about this. Sir, I am convinced that these aspects will be within the discretion of the Minister. He will allow himself to be guided by the demand. If there is a demand in Pietersburg, or in Cape Town, he will issue a licence according to the demand at Pietersburg or Cape Town and in the circumstances applying to Pietersburg or Cape Town.

And what about Fauresmith?

If the Minister is faced by that situation, he will deal with it on an ad hoc basis. You need not be concerned about that.

Your policy is that the hotel proprietor must deal with the matter.

I personally believe, and I want to ask the hon. the Minister to give this very serious consideration, that provision will have to made in the regulations or the conditions imposed for a distinguishing sign throughout the country which will indicate that a specific hotel is an international hotel. I personally had in mind a sign that would fit in with the grading signs which appear outside hotels nowadays, something like a circle containing a small or a capital letter “i” which would denote that it was an international hotel.

I want to say this, too, to the hon. member for Johannesburg North. He wants to link the throwing open of hotels to grading. He is a member of a party which is supposedly so opposed to discrimination, but nevertheless he wants to link the throwing open of the hotels to grading and he wants to start at the top. That is what I inferred from the way in which the hon. member asked questions in the Select Committee. The hon. member later changed his tune, but according to the questions he asked there, if he had wanted to link it to grading, it would have amounted to the one or two star hotels probably never having the chance to provide accommodation.

I want to conclude by saying that there is a lot of money to be made in the hotel business. Already there are a number of our non-Whites who have experience in the hotel industry and who are already making a lot of money out of it. In Umtata there is a hotel belonging to the XDC, the Transkei Hotel, under the management of a Black man, an hotel which is chiefly for Black people and which really only accommodates Black people, and the management of that hotel need take second place to very few in this country. In other words, our non-White people are showing that they are capable of entering the hotel industry. On the one hand, I want to express the hope that this legislation will be adjusted in such a way as not to pose a threat to the development of an hotel industry of their own for each of our non-White race groups. On the other hand, I want to tell own Brown people, our Black people and our Indians that their young entrepreneurs must come forward and grasp the opportunity that exists at present to develop hotels for their own people in areas where there is a demand for them.

Mr. Chairman, in commencing I would like to say that I feel very much at one with the hon. member for Edenvale when he called for the normalization of race relations and in particular for the need to build in a positive way a process of greater contact as a general policy of the Government. I take the call made by the hon. member for Edenvale as being a call for a totally new attitude to social mixing in South Africa. In calling for multiracial hotels and restaurants throughout the country, with which we entirely agree, I, like many others, think that what is necessary in South Africa is a radical change, radical change when it comes to the elimination of race discrimination. After having listened to the somewhat soporific speech that was made by the hon. member for Waterkloor, I must say that I nonetheless found it most interesting. The hon. member says that one of the reasons for bringing forward this Liquor Amendment Bill, is to try and eliminate the confusion which has arisen—if I understood him correctly—in regard to the getting of permissions and permits by people who wish to stay in what are called White hotels.

I never said that.

However, the Bill does not stop this confusion, because the hotels which are not classed as international hotels, will still have to, in some form or another, get the permission from someone in Pretoria to house non-Whites when the need therefor arises. This point of friction is not removed by the Bill. The trouble is that the one point of friction that is removed relates more or less to international visitors and it seems to me that the motivation of the members on that side of the House is more that they wish to avoid international embarrassment rather than they wish necessarily to provide for the needs of all the citizens of South Africa. If this is not hypocritical. I do not know what is. The Second Reading debate has already run a fairly long course and most of the interest in the detail of the Bill I think has been sucked dry. There are, however, perhaps one or two points which are interesting to make and which I should like to make. It is relevant, in making the first point, to quote from an article in The Argus of 15 May 1975 and more particularly from a report on an article written by Senator Dennis Worrall. It is in content most relevant, I believe, to this Bill and to the underlying philosophy of this piece of legislation. I should like to quote from The Argus—

[Inaudible.]

I would ask, if there are going to be interjections, that they are heard, because I cannot hear the hon. member. I want to read further from the article, but before doing that, I want to say that I have read the original article… [Interjections.]… and this is a reasonable reflection of it.

I want to agree wholeheartedly with a lot of what the hon. Senator has said, specifically when he writes “that the recent period of revisionism in Nationalist Party policy is no longer an adequate means of coping with the situation.” The hon. Senator is not a member of this House and he cannot explain himself here, but perhaps one of his colleagues here might oblige. I want to ask a few questions and I do hope that some answers will be forthcoming.

Talk about hotels; what do these remarks have to do with hotels?

This is very relevant to the Bill. Dr. Worrall is a Nationalist Senator; he is by no means a member of this Opposition. Does he speak for the National Party in the views I have quoted, and more directly, does Senator Worrall speak for the National Party when he writes that revisionism in National Party policy is no longer an adequate means of coping with the situation? Does he speak for the National Party when he says that one can only “live in a world of exceptions for so long until it becomes necessary to find a new orthodoxy. We have now reached that point.” I ask this, because if you accept the philosophy of Senator Worrall, if you agree with his judgment, then you must reject this Bill and you must approach the whole matter on a far broader basis. On the other hand, if you accept and vote for this Bill in its present form, then you must flatly reject the viewpoint expressed which I quoted earlier.

Are you going to vote for the Bill?

I would ask the hon. member for Carletonville, whom I shall mention later, just to be patient; he will hear how I am going to vote. Inherent in the acceptance of the Bill is the continued adherence of the National Party to ad hoc revisionism—that is what is in it —which Senator Worrall criticizes so lucidly. What is this Bill if it is not just another manifestation of what I call ad hoc-ism in the stumbling development of confused—certainly if you listened to the hon. member for Waterkloof, it was confused— Nationalist ideology? It is a document attempting to set out interim solutions to an amalgam of problems. What are some of these problems? If I understand the import of the speech of the hon. the Minister and of the evidence given in the Select Committee, these problems relate to the growth of the tourist industry; to the need to cater for foreign visitors in South Africa who are not White; to the need to eliminate red tape and confusion in regard to permissions and permits which have to be secured by hoteliers, who all over the country wish to accommodate non-White guests; to the desire to avoid unfavourable publicity of distateful incidents which from time to time mar further our South African image abroad; and perhaps even to the growing need to provide accommodation in various towns and cities in South Africa for South Africans who are not White and who, for reasons of employment or otherwise, travel internally from time to time.

Coupled with that, this Government seems to need—in fact seems to find it essential—to preserve the façade of what has become known as our traditional way of life. It is a case, once again, of conflicting priorities and contradictory desires, rather like the problem posed by Senator Worrall when he wrote of the tension that existed between the two wings in the Nationalist Party, or as he put it—

That is Senator Worrall speaking. We are presented, therefore, with a Bill which tries, less then valiantly, to satisfy those who believe in progress, as epitomized recently in a speech made, I think, by the hon. member for Moorreesburg, while nonetheless retaining the support of those who prefer to lean perpetually against the wall, maybe to save it from imminent collapse.

And to save themselves from imminent collapse.

The intention is presumably to save the entire structure from imminent collapse, as epitomized by the reaction to the hon. member for Moorreesburg by the hon. member for Carletonville. [Interjections.] The trouble is that this Bill does not succeed fully in either aspiration. In my view this is all very unfortunate. To put it bluntly, while the first and second clauses of this Bill do make travel in South Africa for foreign visitors less offensive than it has been in the past and will ensure, in a few cities, that there are isolated hotels which will be open to all, it does not solve the problems experienced daily by those whom the hon. member for Moorreesburg calls “South African non-Blacks”, mainly the Coloureds and the Indians. In many spheres they need and wish to travel in and around their country, which they share with all of us. By my book, the Bill does not solve the problem either of the Black businessman or the Black traveller.While I am sure that the hon. member for Carletonville was appropriately mollified by the hon. the Minister when he said in his introductory speech:

While I feel reasonably certain that the hon. member was comforted by the hon. the Minister’s significant and somewhat ominous reference to the conditions he intends imposing in regard to mixed dancing and, worse, in regard to mixed swimming…

How disgusting!

… the hon. member is nonetheless going to have to cross off his list a large number—or perhaps a small number—of very élite hotels in South Africa if he wishes to stay or dine in the traditional atmosphere of White privilege to which many members of this House have grown accustomed.

Our attitude to the provisions of this Bill can be stated very briefly. Clause 1(b), i.e. the new section 7, allows of every foreigner visitor, other than non-White migratory workers from neighbouring countries, to be accommodated by consenting hoteliers. As presumably this right will be reflected in all visas issued, this new provision, I am sure, will result in much uncertainty and red tape being eliminated. This is good. We question, however, whether it is right to extend privileges and rights to non-White foreigners while withholding those rights from our own fellow-citizens in South Africa. It will be interesting to see, in this developing policy of ad hoc-ism, what further ad hoc-isms will be introduced when one or more of the homelands become independent and the already growing demand for accommodation by tourists, businessmen and the like develops even further. We do not at all like the new section 81(1) as inserted by clause 3, because, as has already been stated, this is a restricting measure which removes rights which presently exist even though such rights may not have been used to the full in the past. While we support the latter part of the new section 81 which contemplates the creation of a limited number of open hotels, I must say that the hon. the Minister’s introductory remarks in this connection do not create any great optimism. It seems that only very few hotels on a fairly narrowly devised circuit will be granted this status. It is not so much the discarding of discrimination which is the motivation, but rather the wish to hide apartheid away from the most popular tourist routes. These hotels which are exceptions to the rule will not dent too heavily the fabric of apartheid and of discrimination which still forms so much of the substance of the thinking of people in regard to social mixing and the like. The provisions does not satisfy the needs of South African non-Whites who require proper accommodation and whose needs extend beyond the limits of Cape Town, Durban and Pretoria. To travelling non-Whites in South Africa who seeks accommodation—perhaps not the most expensive accommodation—the uncertainties, the delays and the personal problems of getting permission from Pretoria will still apply.

With reference to the repeal of section 113 of the principal Act, I want to say that I have always subscribed to the view that hoteliers should have the right to decide upon the type of business they wish to conduct and also on whom they wish to admit as guests. I must admit that I have never seen this in the past in a racial context, but rather on the basis of the guest’s bearing, perhaps his dress, his ability to pay, and his behaviour. It is clear, however, that the repeal of this section has racial overtones. To illustrate this, let me quote from the evidence given to the Select Committee. In question 39 on page 9 of the printed evidence, Mr. G. F. Botha asked the following question—

Mr. Le Roux answered:

Then the Chairman asked a further question—

Mr. Le Roux answered—

In question 72, on page 15, Mr. De Klerk asked—

Mr. Le Roux’s reply was—

The legislation will therefore not to any great extent avoid embarrassing incidents. On the contrary, they will still occur. I say that embarrassing incidents relating to the liquor laws and the hotels of South Africa will continue to occur unless and until a decision is taken, not on an ad hoc basis, but as a matter of policy that racial discrimination in all its forms will be done away with in the provisions of the Liquor Act.

To sum up, what is needed is not a new set of exceptions, but rather a new general rule, leaving the provision of accommodation in the hands and to the discretion of the hotel industry and its members. What South Africa will yet become and what we should like to see is an open society in which all citizens have the right, as opposed to an ad hoc privilege which is granted, to associate with whom they wish and to the use of public amenities privately provided, it not being in the purview of the State to interfere with the right of admission to private or business premises.

That is the old story of integration.

As Senator Worrall put it, a new orthodoxy is called for. This Bill provides very little comfort for those who hold that view. Accordingly, we shall oppose the Second Reading of this Bill.

Let me make one last comment in regard to the terminology used in the Bill. I want to refer firstly to the principal Act and secondly to the Bill itself. Section 81(1) which is proposed to be inserted by clause 3 of the Bill, makes mention of—

Let me for purposes of illustration look briefly at the term used in the Second Liquor Amendment Bill which we shall come to in due course. In lines 36 and 37 on page 12 of that Bill it refers to “an area for the occupation by members of the white group”. We talk of “Europeans” in the Bill we are now discussing, while in the Second Liquor Amendment Bill in another context, probably because it relates to a definition in the Group Areas Act, we talk of members of the “white group”. I want to ask a question in connection with this type of terminology which the Government continues to use in this type of Bill. My question is: What is a European? Over the years the term “European” has been used to denote a person who is White, but are we really Europeans today? Do the hon. members to the left of me regard themselves as Europeans in the proper sense of the word, or are they Africans?

We are White Africans.

There we have the answer! We are White Africans as the hon. members to my left have said. Yet they continue to use this outmoded style of speaking in calling themselves “Europeans”. Our connection with Europe is minimal, even remote, and only of historical significance. An American, for instance, does not describe himself as a European. He is offended if you call him a European. He is an American. This is an era in which we are trying to identify with Africa. We are trying to say that we are Africans and that this is our place. It is! We are in fact Africans. How incongruous, therefore, to continue to refer to ourselves as Europeans. Surely the time has come to drop this outmoded terminology which is in conflict with the desire of all South African people to be part of South Africa and of Africa.

Mr. Speaker, both the hon. member for Edenvale and the hon. member for Sandton have suddenly caught on to the term “normalization of ethnic relations”. They advocated with relation to this Bill, that we proceeded to “normalization” as regarded the handling of our liquor laws, our hotels and restaurants.

When one speaks of the normalization of a pattern, one surely has a norm which one accepts. If one wants to go into the question of what is to be normalized and what is to be regarded as normal or abnormal, one should look at the existing pattern or way of life. What is the existing pattern in South Africa? The existing pattern in South Africa is that people live separately, that we have separate residential areas, that we have separate schools, that we have separate travelling facilities. We have separate facilities as a basic pattern. That is normal in South Africa. What do they want to normalize, when we are introducing legislation which takes this pattern into account? According to this pattern, every ethnic group will have its own hotels, its own restaurants, its own eating facilities, and provision will be made for the exceptional situations. Sir, when they speak of normalization, then they do so in the sense of “radical change”. Then they say we must overthrow the existing order, in order to make these things normal, but normal in terms of whose norms, Mr. Speaker? Normal in terms of the norms of the inhabitants of South Africa, or normal in terms of the norms of people who want to overthrow the existing order in South Africa?

Normal as far as civilized people are concerned.

Sir, this normalization of relations which they advocate here, will still be cast in their teeth in future debates.

The hon. member for Sandton went further and said that we were trying to satisfy two divergent groups in the National Party. He cannot understand that it is possible to believe, at the same time, in the identity and the right of a people to maintain its identity, and to say that another people is also entitled to recognition of human dignity and development of its identity and what is its own. This reconciliation between the two, which is embodied in the National Party, he sees as a contradiction. If we close hotels on the one hand, he says that it is done to satisfy the verkramptes, and if we declare certain hotels to be international hotels on the other hand, he says that it is done to concede to the pressure of a different group in the National Party. Sir, the National Party does not work that way; in the National Party there is unanimity about this matter, more than there can be about any other matter. It is felt that every people in South Africa is entitled to maintain its own identity, and at the same time, that we do not want to do that by means of discrimination, insults, suppression, deprivation of rights or rejection and dosing of doors. We seek the solution to the different claims of the different peoples by means of the reconciliation of these two basic premises, viz. on the one hand, that we shall preserve and develop our identities separately, and on the other hand, that we shall move away from discrimination and shall recognize human dignity. These two basic premises are reconciled wonderfully in this legislation. In this legislation we find this balance between, on the one hand, identity and the maintenance of good order, and on the other hand, the recognition of human dignity.

We recognize identity and we confirm the maintenance of identity by saying that the basic pattern will be separate facilities. There will be hotels for Whites, hotels for Brown people, hotels for the Indians and hotels for the Blacks. The hotels will be situated where they are most convenient and most accessible to each ethnic group. There is no evidence that anyone wants it to be otherwise. Nobody could quote any evidence which was heard by the Select Committee to say that anyone wanted to change this basic pattern. On the other hand, Sir, there is the reconfirmation of the ethnic pattern along the lines of separate development in this legislation, but with the recognition of human dignity and the elimination of discrimination. Therefore, we recognize the need which also exists among the other ethnic groups for proper accommodation, and the need which exists to have opportunities, from time to time, for people to meet in discussion over the lines which are drawn between the ethnic groups, and where symposiums take place, such as those of which the hon. member for Eden-vale spoke. With the establishment of these international hotels, these facilities will be created. This Bill is a Bill which creates facilities. It is a Bill which creates facilities where there were no facilities. Which hon. member has come to complain about this specific matter in the past five years? Have hon. members who are now so concerned and who now say that we are bringing about such a tremendous injustice with this legislation, done so?