Mr. Speaker, I move—

I want to make it clear from the outset that I intend to move at a later stage that the Bill which is now before this House be referred to a Select Committee.

†I shall also propose that the Select Committee be empowered to take evidence and call for papers.

I have been informed that previous attempts to introduce legislation of this nature in this House to regulate the activities of estate agents were sponsored by the Institute of Estate Agents as far back as 1939. However, the Bill which was prepared for this purpose in 1939 was never introduced in this House. A further Bill prepared by the Institute was published in Government Gazette Extraordinary No. 3519 of 10 July 1945. I may also mention that the Estate Agents Bill introduced during 1950 did not progress further than the First Reading when it was referred to a Select Committee. I also understand that further attempts to have legislation of this nature introduced in 1960 and 1961 in Parliament failed because of the opposition encountered from various sources when the Bill was introduced.

*The Institute of Estate Agents approached my department in 1973 with the request that it should investigate the desirability of recommending to my predecessor, the previous Minister of Economic Affairs, that the activities of estate agents be controlled. In the meantime, complaints were lodged with the Department of Justice by various persons and bodies in connection with money embezzled by certain agents. As a result of these complaints, the S.A. Law Commission investigated the safeguarding of money held in trust by agents on behalf of clients. The commission found, amongst other things, that there was a need for legislation in respect of estate agents and their profession. The commission also recommended that the legislation concerned be prepared by my Department of Commerce and that eventually, if it is accepted, it be administered by that department.

The Bill which is now before the House was prepared in consultation with various interested parties, including the Association of Law Societies, the Property Owners’ Association, and the Institute of Estate Agents. I now want to discuss the main principles contained in the Bill. It will be noticed that apart from clause 1, which contains nine definitions for the purposes of the legislation, the Bill is divided into three chapters. The most important definition in the Bill is the definition of “estate agent”, because this concept will determine the ambit of the legislation.

†The fact that a person who acts as an agent in the purchase and sale of fixed property is called an estate agent in common language, does not assist in the formulation of a definition of “estate agent” which would be precise enough for the purposes of the legislation. It is, therefore, proposed that the expression “estate agent” should apply to any person who, for the acquisition of gain on his own account or in partnership, in any manner directly or indirectly advertises or announces that he performs, or holds himself out as a person who performs certain acts on the instruction of or on behalf of any other person. An attorney who, in connection with his activities as a practising attorney, performs any of the acts referred to in the Bill which we are now discussing, will be exempted from the application of the proposed legislation. In this regard I would like to point out that persons who may suffer pecuniary loss by reason of theft, committed by a practising attorney, of money or other property entrusted to him or his clerk or servant in the course of the attorney’s practice as such, are reimbursed from the Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund established under section 8 of the Attorneys Admission Amendment and Legal Practitioners Fidelity Fund Act of 1941. The proposed legislation will therefore not apply in respect of attorneys in so far as the said Act applies in the case of such a contingency.

I must also point out at this stage that, whereas the expression “person” is defined by the Interpretation Act, the proposed legislation will apply also in respect of any company which falls within the scope of the definition of “estate agent” in the Bill.

*Chapter I of the Bill provides for the establishment of an Estate Agents Board and matters incidental to the functioning of the Board. The board shall consist of not fewer than nine and not more than eleven members. At least eight of the members will be appointed from at least 14 estate agents whose names have been submitted by associations or organizations of more than five years’ standing which are representative of estate agents in the Republic.

In terms of clause 7 of the Bill, the object of the board shall be to determine, maintain and promote the business standards, norms and codes of conduct of estate agents. In order to enable the board to give effect to these objects, it will be empowered, inter alia—

1. (a) to appoint committees to advise it;
2. (b) to frame and publish, with the approval of the Minister, a code of conduct for estate agents, as well as to take such steps as may be necessary to ensure compliance with it; and
3. (c) to encourage, promote and maintain the improvement of the standard of training of estate agents.

The Bill further provides for estate agents to pay to the board a levy which will be prescribed. The board will submit a report to the Minister every year which will have to be tabled in both Houses of Parliament. This report will give a survey of the activities of the board.

†Chapter II of the Bill provides for the establishment of an Estate Agents Fidelity Fund and for matters incidental to this fund. In the main, the moneys in the fund will comprise the contributions to the fund by estate agents at a rate to be prescribed by regulation. No estate agent, as defined by this Bill, will be allowed to operate or to function, unless he has obtained a fidelity fund certificate from the board. The fund will also be controlled and managed by this board.

Clause 18 of the Bill provides, amongst other things, that the fund shall be held and applied to reimburse persons who suffer pecuniary loss by reason of theft committed by an estate agent of any money or other property entrusted by such persons to him in his capacity as estate agent. In terms of clause 19 of the Bill, a discretion will be conferred upon the board to receive any claim against the fund. However, the said enabling powers are subject to the proviso that no person shall without the permission of the board commence action against the board in respect of claims relating to the fund, unless and until such person has exhaused all relevant rights of action or claims and other legal remedies available to him in respect of any particular theft. I stress the phrase “without the permission of the board” because it appears from reports in the Press that there is considerable confusion about the way in which claims against the fund should be handled by the board.

Clause 28 of the Bill will provide for certain disqualifications relating to the obtaining of fidelity fund certificates. These disqualifications will apply in regard to any estate agent who—

1. (a) has at any time by reason of improper conduct been dismissed from a position of trust;
2. (b) has at any time been convicted of an offence involving an element of dishonesty;
3. (c) is an unrehabilitated insolvent;
4. (d) is of unsound mind; or
5. (e) has been found guilty of improper conduct.

The board will, however, be empowered by the proviso to clause 28 to condone any such disqualification in the interest of justice. The board will also in terms of clause 29 be empowered to withdraw the fidelity fund certificate of an estate agent who becomes subject to any of the disqualifications mentioned in clause 28.

*Chapter III of the Bill contains certain general provisions. Clause 30 of the Bill provides for the board to investigate charges of improper conduct against any estate agent. The circumstances under which an estate agent is guilty of improper conduct are set out in full in the Bill.

In terms of clause 31 of the Bill, some decisions of the board will be subject to appeal to the Supreme Court. The right of appeal will be applicable in respect of a decision of the board—

1. (a) to refuse to issue a fidelity fund certificate to an estate agent;
2. (b) to withdraw the fidelity fund certificate of an estate agent; and
3. (c) in respect of the improper conduct of which an estate agent has allegedly been guilty.

The board will also be obliged to furnish the reasons for its decision in this regard. In order to discourage people from unnecessarily demanding reasons for decisions of the board, the person who wants to take a decision of the board on appeal will have to pay to the board an amount of money which will be prescribed. The court which hears such an appeal will have the power to give such order as it may deem fit.

An important provision of the Bill is the stipulation which will require every estate agent to deposit in a trust account moneys held by him on behalf of other persons. Furthermore the Bill provides for the Minister to make certain regulations in consultation with the board.

Finally: Clause 34 of the Bill contains a penalty provision and prescribes the maximum penalties that can be imposed in respect of offences in terms of the legislation. In terms of clause 35 of the Bill, the Minister will be able to delegate some of his proposed powers to an official in the Department of Commerce. The legislation will apply to the territory of South West Africa as well. Mr. Speaker, at this stage I move—

Agreed to.

I should like to make a correction in regard to a statement I made yesterday. During the discussion yesterday the hon. member for Orange Grove asked me by whom the full containers carried by conventional vessels would be handled, and I then replied that they would be carried by the S.A. Railways. After having gone into the matter again in detail, I have come to the conclusion that in practice that would not be altogether correct. The position is that all containers carried by conventional vessels—whether full, half-full, or partly full—will be handled by the carriers, as also all the other cargo carried by conventional vessels. The container vessels will berth at a container berth and all the containers from the container vessels will be handled by the S.A. Railways. Their full containers will be put into the stacking yard and the half-full or partly full containers will be moved to the depot. From there the containers or their contents will be handled by the carriers. The full containers in the stacking yard will be handled by the S.A. Railways and will be moved from the stacking yard to the ultimate destination. I considered it to be appropriate to give this explanation at this stage.

As you will remember, Mr. Chairman, this argument was taken a bit further yesterday by the hon. member for Durban Point, but to my regret there are another few points on which we should like to have clarity. Firstly, to my mind some obscurity still seems to exist as to the legal position, and in this regard I want to say with respect that I do not think the hon. the Minister is correct. Under normal cartage circumstances it may be expected that all bodies and persons, free initiative as well as the Railways, will take part in this cartage business to and from Durban harbour. This is under normal circumstances. But there has been interference by means of the Act which granted the private carrier a particular right and at the same time deprived the Railways of a right. The Act reads that in respect of particular work, only the private carrier may perform that task, and if the Railways, too, want to undertake that work, the Railways will have to give two years’ notice of its intention to do so. This is the normal position. Actually it is abnormal in that the carriers in Durban have obtained an abnormal privilege. The matter has to be normalized, however, by means of a notice in the Gazette, but in my humble opinion the hon. the Minister can go no further than advertising in the Gazette that in future the Railways, too, will take part in the cartage business from and to Durban harbour. This would be the normal position, and my argument is that the notice in the Gazette went too far by stating that the Railways was now going to set aside a certain percentage of that traffic to be carried exclusively by the Railways itself.

What about the container stacking area?

I shall come to the container stacking area. I am of the opinion that if the hon. the Minister were to proceed to do what he wanted to do or what he intended to do in terms of his notice in the Gazette, he would find—this is my personal opinion—that he was acting ultra vires in that he had set aside for himself a certain percentage of the work in Durban harbour to which the Act certainly did not give him the right. Now I cannot understand why the hon. the Minister is experiencing difficulty with that. All he has to tell us is that this is the case, that he wants greater powers, that he admits that his notice in the Gazette might be ultra vires.

Would you stop talking in that case?

No, because unfortunately that would still not be the whole position. However, the hon. the Minister refuses to say this. He says it is quite correct that they want to undertake the cartage business from and to the container stacking area. This brings me to another problem. A container stacking area is not defined in the Bill. What type of container stacking area is this? Is it a container stacking area for the full containers only, or will it also be a container stacking area for containers which are not full? It might be both. Until such time as we have defined the words “container stacking area” as the area which will be the receiving depot for full containers only, the hon. the Minister will …

But that is the case.

Nowhere in the Act is it stipulated in any way what a container stacking area is. It may be a container stacking area for all kinds of containers. This is my argument and until such time as the Minister has defined the words “container stacking area’’ as the receiving depot for full containers only, the hon. the Minister will find that he is in difficulty.

But let us look at the other side of the matter. This is not merely a legal argument to me. Moreover, let me add at once that I am not interested in a particular group of carriers. It does not interest me who they are. I am only interested in the fact that we have a particular investment in transport here. Tens of thousands of rand have already been invested in an available conveyance, one which can really be utilized, and the question I want to get to is this …

In what sense has it been invested?

It is a fact that there already are six or seven hundred conveyors who are prepared to do the work at the moment. In this we already have an enormous investment. The question is not whether the particular group of carriers should do the work, but simply whether it is desirable for the Railways—in the light of all economic principles, all conveyance principles—to make a brand new, additional investment of several million rand. This is the only question. My argument to the hon. the Minister is that something of this nature would promote a totally unsound situation.

In transport, “vervoerwese” in Afrikaans—and this is a word which has become very popular in Afrikaans these days—we always hear that all our transport media should be co-ordinated so as to provide us with a sound system of transport, the hon. member for Tygervallei knows exactly how much centres around the idea of co-ordination. Here we already have one medium of transport. It exists and it is perfect. If, however, we now want to co-ordinate, it will mean that we shall have to utilize all our transport media to their optimum. Now I am telling the hon. the Minister that he would be acting quite wrongly if he were to exclude this medium of transport by setting aside a certain percentage—an important percentage—exclusively for the Railways. This goes further. With all respect to the hon. the Minister, I do not think an action of this kind could do the name of the Railways any good.

I have here an article which was published in the magazine of the Handelsinstituut, Volkshandel, of September 1975. The heading of the article is “Diktatuur met Vervoer” (Dictatorship with Transport). The conclusion reached in this article is that the transport situation has changed into a bureaucratic dictatorship—a specific accusation of the Railways. This is a harsh judgment. The fact that somebody can write something of this kind, the judgment passed in this article, is reinforced by the way in which the hon. the Minister is acting now. This is an act which goes beyond the existing, normal procedure, an act by which the hon. the Minister is reserving for himself a particular aspect of transport because he thinks he is able to handle it better.

I can see his point, but I think his arguments concerning the practice of the matter were much better. In this regard I was able to understand his problems to some extent. He said that when one had a depot of this kind, it was normal and desirable to have one central management and that the Railways was the most suitable for this. I have no objection to that. The hon. the Minister went on to say that his experience—after he had studied the position abroad—clearly indicated to him that chaos should be prevented. However, I want to ask the hon. the Minister politely whether his investigation abroad has proved to him that all container conveyance abroad is being monopolized. Is there only one undertaking in Britain or in France or in Germany, for instance, which conveys all the containers or is there free transport? If there is free transport, and if there is free transport in South Africa, too, which is properly controlled by the Railways from one central point with the aid of a computer, what objection can the hon. the Minister raise? None whatsoever. I think this will be nothing more than a mere replica, a faint shadow of the situation which he studied overseas. That’s why I believe in all courtesy—no matter how the hon. the Minister views the matter, no matter how he explains—that this is an extremely unsound step which is being taken here. In view of the welfare of the Railways only—and this is all I am interested in—and of transport in South Africa, I believe that the hon. the Minister is doing neither the economy nor the Railways a favour by doing this kind of thing.

It will not in any respect be to the advantage of the Railways—which is already called a monopoly and described by the Handelsinstitute as a dictatorship—to strengthen the harsh judgments, such as those which have already been made, even further by this kind of action. It does no one any good, and against this background I should like to ask the hon. the Minister to reconsider before including this clause in the Bill.

Mr. Chairman, there is one aspect the hon. member for Maitland does not seem to understand very clearly. In container traffic there are three operational points. Firstly, there is the container quay, where the container ships unload their cargo. From there it goes to file container stacking area. There all the containers are unloaded from the container ships—the containers which are not completely full and the containers which contain the goods of various clients. Then there is the general quay where general ships, which also handle containers, do their unloading. However, from the container stacking area work is still done in two directions. There is one direction for containers which are full and sealed and all go to one point or to various clients. The full and sealed containers will then be handled and delivered directly from the container stacking area. In terms of this legislation it will be done by the Railway Administration.

Then there are those containers which have to be handled, which have to be opened and the contents of which have to be taken to various delivery points. These containers go to a container depot and the handling of these containers between the container stacking area and the container depot is also done by the Railways. After the containers have been taken to the container depot, the general cartage contractors handle it further. However, what is involved here is not the granting of a percentage to the general cartage contractors, but the control of the container stacking area, where the containers have to be handled in an orderly manner according to a specific programme, and where the work is done according to a prescribed method. Only the Railways do this work. But the containers which are destined for various clients, are opened in the depot and divided, and from there the cartage contractors do the work. This legislation now provides that where the work has to be done on a specialized basis, before it is divided at the depots, namely at this container stacking area, there only the Railways will handle it.

I am convinced that much of the opposition on the part of the hon. member for Maitland and the hon. member for Durban Point, as well as the hon. member for Orange Grove, may be ascribed to the fact that they do not understand this matter properly. This is not an opposition to the principle; it is opposition owing to the fact that they do not realize what is involved.

Mr. Chairman, with respect to the hon. member who has just sat down, I think that we on this side clearly understand what is going to happen with these containers. We would like to make the point that at the present time the Durban harbour carriers are handling most of the goods that are coming through Durban harbour. With the introduction of containers the bulk of these goods is going to come into Durban through the container depot in FCLs. Am I correct? The point is that with this legislation from now onwards it is going to be the Railways who are going to deliver the goods to the local delivery points throughout the town.

Some of it.

They say some of it, Mr. Chairman, but we have been told by the Government that within a few years the bulk of all general cargo coming into Durban is going to come in containers, probably in FCLs. So we clearly understand, Sir, what is going to happen in Durban in the future. I would like to reassure the hon. the Minister, after listening to his speech yesterday, that we on this side accept that containerization is a revolutionary form of transport of goods being introduced throughout the world. We further appreciate that this requires a tremendous capital investment and that this investment should be handled in the most efficient manner. We may question, Sir, in the light of reports we have read and information which has been given to us, this particular move in the light of experience in places like Australia and also when one considers that there could be a tremendous loss in empty containers being returned to Europe. However, we will accept for the moment that the South African Railways’ planners have given much thought to the matter and that they know what they are about as far as the handling of cargo in Durban is concerned, and that the decision to move into containerization is in the interests of South Africa.

I believe that clause 3 gives us two major causes for concern and that is what the whole debate is about. First of all, as early as 1970, the Railways after doing all their planning, advised the Durban Carriers’ Association that they should plan for the introduction of containers in the Durban Harbour. They told them to plan and prepare for it, in other words, more or less told them that they are going to continue to handle this cargo. This was five years ago, but now the whole position has been reversed in a manner which is resulting in a virtual nationalization of this particular industry. This brings us to the second cause for concern and that is, Sir, that we on this side of the House believe in a free enterprise economy. We believe that this clause denotes nothing other than a monopolistic trend towards State-ownership or, let us say, creeping socialism. I believe that this constitutes a distinct challenge to our whole free enterprise society in South Africa. We cannot escape the fact that this particular clause is a blatant case of a take-over by the State of an existing major industry, in an attempt to monopolize the entire handling of cargo from ship to shore and from shore to the receiver. The Opposition would be failing in its duty if it did not bring this to the attention of the public in South Africa. After all, this country of ours has been built up through the rugged, individualistic and free enterprise attitude of its peoples. These people have built not only their personal fortunes but also the fortunes of South Africa. I am sure there is a great number of members on that side of the House who know exactly what I am talking about. This clause is a blatant step on the part of the Government to take over private enterprise, which I believe is the life-blood of many people who have been working for many years in Durban and have developed their businesses. I would like to add that these businesses have not been developed overnight; some of them have been in existence for over 60 years. It is easy to visualize the sweat and tears and all the difficulties these people have had to go through in order to build their businesses to the point where they are today. Now the Government comes forward in a dictatorial manner and nationalizes these businesses.

I want to ask the hon. the Minister why he is doing this. We were told yesterday that this was being done in the interest of efficiency. With respect, Sir, I have been led to believe, and I think most of us have, that you must look to private enterprise for efficiency. Efficiency is brought about by competition, as the hon. member for Mooi Rivier says, as well as by the profit motive. The Minister is saying to us that the public sector is more efficient than the private sector and that socialism is more efficient than the free enterprise system. I would like to ask the hon. the Minister whether this is correct, and if this is the attitude, whether this is the stepping-stone to still further take-overs by the State of free enterprise undertakings. The Minister has said that the Railways need control of the container depot for the sake of efficiency. Why did he say this, Mr. Chairman? Does he imply that all the entrepreneurs in Durban who have through all the years of heavy harbour congestion successfully and efficiently handled the cargo in that port with the antiquated methods at their disposal, are now incapable of doing the same job with a nice modem depot which has been built? If he says this I believe it is an insult to the entrepreneurs of Durban and the entrepreneurs in South Africa in general. I believe that private enterprise could have operated this depot and can operate this depot as efficiently, if not more efficiently, than the S.A. Railways. The Minister may say that this is not correct, but I would like to put to him that he has not exercised his mind on this matter. He has said that he offered the 42 carriers the opportunity to form a consortium and that this was not accepted. Is this absolutely correct? Did these people reject the opportunity to come together in some way or other to form some sort of consortium to operate this venture as a private enterprise, especially as far as the moving of the FCLs from the harbour to the destination is concerned? I am sure that with little imagination these problems could be overcome. Our history shows that greater problems than these have been overcome in the public sector.

Particularly in Natal.

I believe that we must look further for the answer to this take-over. I believe the object is, Sir, to get at the profits which are going to result from this containerization. We have been told that this container method is the most modem and efficient and the easiest to move cargo in terms of unit tons per unit of time. For this reason I believe that this is going to be a most profitable method of moving cargo, and I believe that the S. A. Railways are after the profits. I might add that the Minister has told us this afternoon that the harbour carriers still have to move other FCLs and LCLs, those which are not operating at this particular depot. Here we are leaving our private enterprise to handle the most difficult job while the Railways take the cream. This is, I believe, going to be one of the most profitable sections of containerization. I would like to pose the question why the Railways are taking this over. Is it, Sir, to offset the losses which they are expecting in other divisions of this total containerization programme? I would like to put the question whether these profits are going to offset the losses which the Railways are going to incur as a result of its decision to guarantee the Conference Lines a fixed return on tremendous investment in container ships and containers. Can the Minister give us some idea of the operating profit of this container depot during the next five years and can he give us some idea of the losses the Railways are going to suffer as a result of their guarantee to the Conference Lines within the next five years?

In conclusion I would like to ask the Minister to give this House one assurance. Would he ensure that the costs in this particular cost centre are going to be kept clearly apart so that we will be able to see from the figures in the future exactly what the operating profits are in this particular sector? If he does not do this, if he does not enable us to see this, we can do nothing other than to assume that the reason for this particular clause is the total monopolizing of the entire transport network of handling cargo throughout South Africa, from the ship right to the receiver. For this reason we on this side of the House are very much against this measure.

Mr. Chairman, I am very grateful to the hon. the Minister for sorting out yesterday’s error. I am sure the harbour carriers will be grateful to know that something will be left to them, and that the majority of the coastwise traffic will still be transported by them. I still cannot accept the hon. the Minister’s contention that only the Railways Administration themselves can carry out this job with the necessary efficiency, but I think we have got to the stage in this debate where the hon. the Minister is fairly set in his mind as to what he is going to do.

I want to put a different point to the hon. the Minister. I believe the hon. the Minister is duty bound to pay compensation for business lost to these long established businesses. I see from his face that he does not approve of this at all. I believe that, in fact, the Railways Administration have led the Harbour Carriers’ Association to believe that they would get this traffic and that many have prepared themselves accordingly.

Nonsense.

I should like just to read a letter from the then General Manager of the Railways. The letter’s reference is H.19/4/19 and it is dated 1 May 1970. Perhaps 1970 is a long time ago, but in fact subsequent to that date until 1974 nothing the Railways said led the harbour carriers to change their minds. I believe the Railways Administration are honour bound to do something about the misleading information they gave to the Harbour Carriers’ Association at the time. Let me just quote this to hon. members. The letter says, inter alia—

To my mind, this obviously gives the impression that they will be carrying out this work, and I am assured by the Harbour Carriers’ Association that many of their members have invested capital in so doing. The hon. the Minister claims that they are not going to lose that much traffic, but it is only reasonable to assume that, if something like 70% of the total general cargo from overseas is going to be in full container loads …

Not in full container loads.

Yes, in container loads, but the vast majority will be in full container loads, otherwise it becomes uneconomic. This means that a considerable amount of work is going to be taken away from the Harbour Carriers’ Association. I do believe that the hon. the Minister is therefore honour bound to ensure that some sort of compensation is given. He has stressed again and again the “absolute necessity’’, I think his words were, for the efficiency of the operation. If he really believes this—and he and I will agree to differ on this—I still think he is honour bound to make some provision for compensation.

Mr. Chairman, I wish to deal first with the allegation made by the hon. the Minister, an allegation he confirmed by quoting one sentence from my Hansard, that I had made an incorrect statement. He quoted the one sentence where I said—

He picked that one sentence to quote. In fact, the Government Gazette states that the Railways will take over all the container traffic to and from the stacking area. What the hon. the Minister did not quote is what I said a few lines further on. I said—

I continued—

One sentence later I said—

I charge the hon. the Minister with attempting to mislead the House by making out to the House that I had stated that the Railways would carry all traffic …

Order! The hon. member must withdraw the words “attempting to mislead the House”.

I withdraw that. May I say that the hon. the Minister was misleading the House when he alleged that I had given the impression that the Railways would be carrying all traffic when on three specific occasions on one page and on various other occasions in my speech I specifically, clearly and unequivocally stated that the Railways would be handling FCLs and that private enterprise would be handling other traffic and LCLs. Yet the hon. the Minister chose to quote one sentence from one part of my speech in order to create the impression that I was misleading the House. I believe he was misleading the House.

I said you were overstating your case. I never said you were misleading the House.

The hon. the Minister said that I had made an incorrect statement to the effect that the Railways were going to have a total monopoly.

Let us look at the question of the amendment of section 55. In terms of the existing section 55, the Railways are prohibited from engaging in cartage or the business of cartage contractors, but in terms of the same section, notice can be given in the Government Gazette that they will no longer be prevented from engaging in the business of cartage contractors; that is the opposite of the prohibition. In terms of section 55 they have to give notice in the Gazette, and I quote, “stating the intention of the Administration to undertake such a business”.

In other words, the Act as it stands gives them the right to give notice that they intend to undertake such a business. It gives them no right to exclude the existing carriers from the harbour. It gives the Railways Administration the right to enter and undertake cartage business, not to exclude other people. That is why the hon. the Minister has come with this amendment which specifically gives the Administration the power “to undertake the business of cartage contractors or cartage agents to or from any container stacking area in Durban harbour to the exclusion of any other carrier”. The key words are: “to the exclusion of any other carrier”. That right they did not formerly have. This is the legal issue which the hon. the Minister is not prepared to face and for which he is amending the law to cover himself.

Let us look at the practical mechanics of this. Does the hon. the Minister mean to tell me that it is beyond his capacity and that of the South African Railways to control and plan a stacking area in such a way that private carriers can take the full container loads from the stacking area to deliver them to customers? Does he really mean that it would be beyond their ingenuity to design a system of communication and control whereby, in exactly the same manner as railway trailers and railway mechanical horses will be called up to pick up containers, private trailers and mechanical horses could be called up? The mechanics are that the computer will say that a given container has to go to X. For that to happen, a mechanical horse has to bring a trailer to the spot, or a stacking crane must pick up the container and load it on a trailer.

Do you mean to tell me that the hon. the Minister could not organize it so that the private carriers could have trailers waiting, available to be loaded immediately for removal to a certain area within a certain time, and that a sanction could not be placed on those carriers which would provide that if they failed to remove the carrier within a specified time, they could lose their rights to that traffic? No, this is beyond the hon. the Minister’s imagination. The only way the hon. the Minister can see things is to take over complete control. He cannot visualize a partnership between the State and private enterprise. He says the only partnership he is prepared to give them is one in which they can pick up the rubbish from the depot, the LCLs and the conventional cargo. He knows the difficulties with conventional cargo. As far as the bulk of the traffic is concerned, traffic which will comprise full container loads, he is not prepared to enter into partnership with private enterprise. Now what does he expect? Does he expect the carriers to run down their present vehicles within the next two years while he himself has to spend R5,1 million buying new equipment to do the job which they are quite entitled to do now? And all this is taking place under the shadow-play of “behoorlike orde”!

Let us now look at this in relation to Government policy. I charge the hon. the Minister with acting in direct conflict with three alleged fundamental principles of Government policy. Firstly, he is acting in conflict with the operation of the free competitive enterprise system as the basic economic policy objective of the Republic. It was stated by the hon. the Minister of Economic Affairs in December 1974 that the basic economic policy objective of the Republic was a free competitive enterprise system, and here we have the State wiping out private enterprise and taking it over. This is in direct conflict with the Government’s own policy. In February 1975, in a statement by the hon. the Prime Minister in connection with a meeting of the Economic Advisory Council, he announced the appointment of a commission of inquiry to examine the effectiveness or otherwise of the Regulation of Monopolistic Conditions Act. Here the Railways, in conflict with the objective of the Prime Minister’s Advisory Council and the Government, which seeks to present monopolies, creates a new monopoly. Then there was the collective campaign against inflation, the manifesto accepted by the Government, by commerce, by industry and by labour and aimed at reducing unnecessary spending. Now we find this Minister acting in direct conflict with the Government’s proclaimed aim. The hon. the Minister of Finance yesterday, introducing the Part Appropriation Bill, spoke of the vast reduction in Government expenditure. However, this hon. Minister is not interested in Government policy. He comes along and throws away R5,1 million so that he can have a stranglehold on the full container loads in Durban harbour. That is socialism! It is in direct conflict with the stated aim to cut down on Government expenditure. [Time expired.]

Mr. Chairman, I listened yesterday with interest to the hon. the Minister’s explanation as to why this came about. He painted us a pretty picture, a picture so pretty that he actually believes it himself. He spoke about the efficiency of the Railways and then he went on to tell us about how well the job would be done. However, I would like to know from the hon. the Minister in what way efficiency is going to be increased. During this time how many complaints has he received from members of the public that the hauliers and contractors were not doing their job properly? I want to view the matter from this angle that he is embarking upon a new programme which is going to entail the expenditure of money and he will require more staff to do the work. We know that the Railways suffer from a chronic staff shortage.

And a chronic Minister.

We also know—and it has been bandied across the floor by members on the other side of the House—that they rely upon the men of the Railways to work overtime in order to keep their salaries at a subsistence level. Where are the Railways going to get the staff and how are they going to maintain the efficiency which the Minister so glibly talks about? It is because I am sure that he cannot give us that guarantee, that I support our opposition to this clause. My memory goes back to the days when the Motor Carrier Transportation Act came into force. The Railways were going to sweep the boards and were going to take all transport over. What do we see today, however? If you travel on the freeway between Johannesburg and Durban you will see lorry after lorry transporting goods because the Railways themselves are unable to cope with the demand. Actually they are not fit to do so and they cannot carry the loads which private enterprise is carrying.

Mr. Chairman, I do not think that we have progressed much further than we were yesterday with the arguments of that side. If I can, however, I wish to clarify certain aspects again. May I first deal with the statements to which the hon. member for Durban Point referred. Previously, when I replied to what he said during the Second Reading debate, I began by saying that if that side of the House, that is to say the Opposition, is in a fix, we are accustomed to seeing them throw the hon. member for Durban Point into the fray. We give him credit for that. I then went on to say that the weaker his case, the stronger he puts it. That is indeed what he did, because he knew he had a weak case. Then he pointed out, inter alia, that in this particular case, to which my attention was drawn at the time, he had been referring to “all container transport”. Yesterday I quoted the words “all container transport” and as I said, “it is what it is”, but now the hon. member says that “all container transport in the stacking area” should in fact be added. But this is not there. Nevertheless I wish to leave the matter at that. I do not really think that this is something which will put the hon. member and myself on bad terms.

The matter of this letter about which so much has been said, was raised by the hon. member for Orange Grove again. I did not refer to this letter yesterday. I am also aware of what was written in this letter and I think that for the record it is advisable for me to read the relevant paragraph in full. This letter was written in 1970, four years before arrangements for the containerization of our harbours were made. The letter reads as follows—

This is what is stated in this letter. And now I would like to draw the hon. member’s attention to the word “also”. What does “also” mean? It says—“You will require to equip yourself also to handle containers”. This means “over and above anyone else”, and that anyone else is the South African Railways.

No!

If the hon. gentlemen do not accept this argument, I should like to tell them that it was only four years after that that containerization was decided upon. Anyone who incurred great expense to prepare himself for this, something about which there was not yet any clarity, before 1974, the year in which containerization was decided upon, must have been lacking in business sense. In any event there is no argument on the grounds of which this letter can be referred to.

The hon. member for Amanzimtoti made two statements to which I should like to react. He asked whether I maintained that the Railways are more efficient than private enterprise. This is not at all what I maintained. I do not want the Railways to undertake this business because I think that they can do it or any other particular business better than anyone else. This was not my argument at all. But for the handling of these goods in these particular circumstances it is, however, necessary to have one controlling body. For this purpose the Railways will be the best.

Why?

Because there is, in any event, no one else who can do it. But even if there should be someone else it is desirable, owing to the fact that the Railways are in control of the harbour that it should also have control over the container stacking area—if there should, as we have said, be only one controlling body.

In the second place the hon. member for Amanzimtoti asked how much profit we were going to make from this enterprise. For me there are no motives of gain in this undertaking. For me there is only one consideration, i.e. efficiency in the development of the new method—containerization—which we have accepted with regard to the handling of goods which are transported by sea. This is the only consideration. The hon. member asked whether the profits on the handling of containers are going to be utilized to cover the losses the Railways is going to suffer in guaranteeing the Conference Lines a fixed return. We have nothing to do with the Conference Agreement. I was involved in the Conference when I was Minister of Economic Affairs, but today, as Minister of Transport, I have nothing whatsoever to do with the Conference Lines. This agreement with the Conference Lines was concluded under the supervision of and with the Department of Economic Affairs and not with the Department of Transport. After the agreement with the Conference Shipping Lines was concluded, it was our responsibility, as the authority in control of the harbours, to effect the necessary changes so that we could cope with the changed circumstances arising from by the implementation of containerization.

I do not think it would be worth our while to go into the legal position referred to by the hon. member for Maitland again. Once again he referred to section 55 and to the notice in the Gazette. However, when we are finished with all the legal considerations, have thrashed them out and have agreed or disagreed on them, one fact remains as clear as day: That the physical and material circumstances are such that it is necessary to exercise proper discipline and control in the container stacking area. You can imagine, Sir, that we have here a container stacking area into which we have to unload a ship carrying as many as 1 500 containers within 48 hours. Within three days the container stacking area has to be cleared and the empty containers be brought to the container stacking area from outside to be reloaded on a container ship so that it can put to sea to make way for the next container ship coming in. In the meantime we are dealing here with containers which weigh tons and between those containers, which have to be packed in special places, there is a continuous movement of straddle carriers. There is therefore a very serious element of danger present in such a container stacking area. Hon. members can picture it for themselves: Here we have a container stacking area with a thousand or more containers, and 44 carrier agents with 200 sub-agents rush into the container stacking area. The one wants that container for his client and the other one wants that container for his client. This would cause chaos and then the hon. member for Durban Point would criticize me for the chaos that prevails and the speed at which these containers are being handled.

†I honestly do not know why the hon. members get so jittery, particularly those from Natal, so long before the by-election in Durban North. I think the hon. member for Orange Grove has beaten the hon. member for Durban Point by a short-head at the moment, because at least he has an amendment on the Order Paper. It is, however, the funniest amendment I have seen since I came to Parliament. Nevertheless, he has an amendment on the Order Paper and now he can go back to the carriers, to their dependants and associates and tell them: “Look here, I have an amendment on the Order Paper but the hon. member for Durban Point does not even have an amendment on the Order Paper.” I want to warn them that Senator Worrall will slip so smoothly past them that they would not know what struck them.

Mr. Chairman, I do not think the hon. the Minister has really answered this question of compensation adequately. I said that I was quite prepared to listen to him if he could give us the assurance that the only way it could be handled was by the Railways Administration. That is his opinion and we agree to disagree. But I still think that, in all fairness, he must give further consideration to this question of compensation. The hon. the Minister says that they are not going to lose all that much business, but with every respect, they are going to lose a considerable amount of business. We talked about the letter which was written in 1970, but that letter must not be allowed to stand in a vacuum. It must be remembered that following on that letter containers started to arrive and were handled by private enterprise and by the carriers. They went on arriving and the Railways Administration said nothing about taking this business away from them. Admittedly most of these were coast-wise containers, but nothing was said to them which could have led them to believe that they were not going to handle all the traffic. They adjusted their capital investment programme accordingly, I think with every justification. The hon. the Minister tried to get himself out of it by talking about the word “also”. Frankly, that one did not wash at all. It is a very interesting semantic point. If one reads that letter, one is entitled to suppose that the container traffic would go to the Carriers’ Association. I want to ask the hon. the Minister to give us an answer on this question of compensation, a question to which I believe he as an honourable man should give a considerable amount of consideration.

The hon. the Minister repeated today what he said the other day, and that is that whenever the hon. member for Durban Point has a weak case, he turns up the volume.

That is so.

Whether I agree with this or not, I want to say, Sir, that we have also learned to know the hon. Minister. When he has a poor case, as was the case today, he turns the volume down. The hon. Minister spoke very quietly today, from which I must deduce that he does not have a very good case. The hon. member for Orange Grove has already dealt with the question of “also” and what meaning that little word may have. On the basis of the letter from which the hon. the Minister read an extract, I do not have the slightest doubt that he indicated to certain carriers in the Durban harbour area that they should prepare themselves for participation at the least, not only as far as a certain type of container was concerned, but participation in container traffic as a whole. The other thing which is bothering me and which the hon. the Minister did not try to answer, is that he says that the Railways must exercise control. Sir, I have no objection to this. I accept that the hon. the Minister, through his department, must exercise control over the container stacking area, etc., but does the hon. the Minister really want to tell me that in countries overseas—and he has investigated conditions there—container stacking areas of immense size are not also to be found, and does he want to tell me that those container stacking areas are served by one carrier only?

Order! The hon. member must not repeat arguments. He himself has used that argument before.

I have, Sir, but the hon. member did not reply to it, and this is my problem. I think this is of vital importance but the hon. the Minister has not furnished any reply whatsoever in this regard.

I now want to deal with the other point. We have already made the statement that considerable amounts will have to be invested. The hon. the Minister is silent on this point. I now want to ask the hon. the Minister pointedly what his assessment, what his estimate is, as to how many millions, for example, they will invest in transportation equipment alone in order to accomplish this task? Secondly: How many vehicles will he acquire? All this stems from these changes and is additional to the present Railways transportation supply. Say, for example, the hon. the Minister needs 1 000 vehicles. Does he have the necessary drivers and additional officials to fill the posts? I think that the Minister has failed to give us an answer. I say that he is acting autocratically and this is not doing the Railways any good. But the Minister remains silent. I say that he creates the impression that he does not really care about private initiative.

That is nonsense.

Oh, the hon. member should rather be quiet. By the way, Sir, I find it strange that the hon. Minister stands alone in this battle. He does not receive any assistance, except from the hon. member for Klipdrif … [Interjections.] If I have to choose between “Klipdrif” and “Kliprivier”, I choose Klipdrif. I want to tell the Minister that we are serious about this matter. We are not simply arguing for the sake of argument, but in the interests of transport in South Africa. Once again, therefore, I specifically want to ask how many millions will be invested and how many vehicles will be acquired. Does he have the staff to run this massive machine, and if he does not have it, does he not think that he should rather allow private initiative, which is only too eager to perform the task, to do so?

Mr. Chairman, I rise to deal with two matters which have not yet been clarified. But before doing so, I would like to refer to this brotherly love between the Minister and the hon. member for Orange Grove. Of course, I can understand it. They are both competing for a remnant. Their remnant will be about half the size of the remainder of the traffic with which private enterprise will be left in Durban harbour. While they know it is only a remnant they are competing for, they must try to gang up together. So we are not worried about that; it is quite understandable. But I can assure them that the harbour carriers even now will still get a far bigger share of the traffic than they will get of the remnant of votes in Durban when we have finished with them.

Sir, there are two matters I wish to raise. The one is the question of the closed shop about which I put a question to the hon. the Minister and to which he has not replied. Is it the Railways who created the closed shop in regard to the harbour carriers or is it the harbour carriers themselves? The harbour carriers are adamant that it is the Railways, by refusing permits. Since they are still operating, and will operate for another year, I think we are entitled to ask the hon. the Minister to put on record beyond doubt the fact that either it is or it is not the issue of harbour permits which determines who shall operate in the harbour and therefore who shall belong to the association. This is a matter which concerns many other carriers and I think it is only fair and in the public interest that it should be put beyond any doubt.

The other matter is that of the chaos which the Minister says he foresees in the stacking areas. He visualizes 42 carriers and 200 sub-agents all chasing each other around and creating chaos in the stacking area. Is it correct that initially there will only be two carrier cranes, straddle cranes, and later three? That gives three cranes operating in the stacking area. Containers will be taken off ships and others will be loaded and taken out of the area.

If one assumes that one of those straddles is unloading the ship and stacking, that leaves one in the initial stages of operations and ultimately two which will be loading trailers. So this is simply an hysterical picture of hundreds of trailers and mechanical horses chasing each other around and up and down the lanes of the stacking area. The straddle crane will pick up the container and put it on the trailer to be carted away; so you cannot have people chasing each other around looking for their own containers. The minimum of intelligent organizations can call them forward to be loaded as and when their containers are ready to be loaded, according to the Railways’ predetermined plan. Again, the minimum of communication could ensure that they have their vehicles ready to load. But only if the Minister is going to have 20 or 30 straddle cranes loading, will you have chaos because you would be loading hundreds at once You would be loading carriers faster than you could clear them. But under the system, as I understand it is going to work, the containers will be taken from the ship, stacked in rows, numbered, computerized, ready for despatch, and then picked up from the row according to the computerized planning and placed onto a trailer which is taken away by a mechanical horse. I can see no difficulty. Your traffic is limited to the number of straddle cranes you are going to have loading the trailers. All you do is to have a parking area and advise the carriers in advance that you will have so many containers ready for taking away in the morning, and they wait there until called up. There is such a thing as a walkie-talkie these days. Perhaps the Minister does not know about it, but even his train compilers—the Black shunters—have walkie-talkies. It would be a simple thing to call up your vehicles as and when you want them. I am emphasizing this because the Minister is hiding behind the possibility of chaos in the stacking area. That is his sole argument, but all he has to do is to bring a little organization into this structure in order to make it move smoothly.

I also want to ask the hon. the Minister whether he will deny that at the very time when this Bill was introduced there had been a local agreement between the Administration and the Harbour Carriers’ Association to have further discussions. Is that incorrect? Sir, at the very time when this Bill was being introduced into Parliament the Association, in negotiation with the Administration, had agreed that they would have further negotiations and go into the matter again. In the light of this agreement—in fact, despite this agreement—with the Administration, the hon. the Minister has come forward with this clause. Let me quote from a letter, dated 4 February, to the hon. the Minister. It says the following—

The Railways agreed to further discussions in this regard. This letter was written on the 4th and two days later, before the letter had arrived, the hon. the Minister was introducing this measure in the House. Is this the way one negotiates? Is this the way the Government negotiates—with a double-barrel shotgun aimed at the head and with the Minister pulling the trigger before he had even started talking? The hon. the Minister cannot get away with this. There are no votes in this, neither for him nor for us. This is not a matter that affects the public. They do not understand it. This is a matter of basic principle, the principle of private enterprise versus a State monopoly and a State stranglehold. It is socialism versus private enterprise—that is the basic principle. It is vested rights versus Government takeover of vested rights. It goes far beyond the issue involved. As I have said, no votes are involved here. However, it touches the basic philosophy of the Government and of this side of the House.

Finally, let me tell the hon. the Minister the reason why the hon. member for Orange Grove put a meaningless amendment on the Order Paper, an amendment he has not moved because he would not be allowed to move it since it did not mean anything and is not within the rules. It is that during the Second Reading debate he was fast asleep. When I sat down he was so fast asleep that he did not even speak at all. When the principle of the Bill was discussed and the Minister got up to answer, the Progressive Party could not, out of their 11 “effective opposition” members, produce anyone to even make a squeak, let alone put up effective opposition.

Mr. Chairman, what I have to say I shall say by way of a question to the hon. the Minister. We know that the damage to goods handled by the Railways is very high indeed, resulting in a very high pay-out in the form of compensation. This happens on all Railway systems. Does the hon. the Minister believe that if the Railways handle the conveyance instead of the private enterprise, the damage will be less or will it be more?

Mr. Chairman, the hon. member for Maitland said that I failed to answer certain questions he asked me. I must say that there are many questions which may be asked, but I shall try to answer those few questions as well. He asked a question about the container stacking areas overseas. I just want to tell him that centralized control is common practice where the area is limited, and it is indeed the case that area is limited in our harbours. The same conditions apply in the harbours of Australia, where the area is also limited. When this is the case there is one central authority, and this authority must also attend to the handling of containers. The hon. member asked how many vehicles we were going to buy. I cannot give him the amount, but hon. members are aware of the fact that approximately R5 million has been voted to buy the required vehicles. This amount of R5 million which has been voted is, however, what we envisage for the ultimate development of containerization. In other words, it will be applied in stages as circumstances demand.

The hon. member said that I wanted to act autocratically. However, I do not think that we are acting autocratically. We are giving these people two years’ notice. In any event, we are not going to start this business before two years have elapsed. In terms of section 55 we have given them two years’ notice, and we are now stating this matter to eliminate any doubt. The hon. member maintained that we now have a certain section of the harbour over which we are going to exercise authority. The reason I am coming to Parliament is, as I said yesterday, to put this matter beyond all doubt. The hon. member for Durban Point and others spoke of the possibility of lawsuits. I want to eliminate that possibility right from the start, but, what is more, what I really envisage with this legislation which I have introduced, is authorizing the Railways to be the sole operators in those particular areas—the container stacking areas. Even though we were to say that the carrier may not carry from the area, it would still be possible for their vehicles to enter that area for some good reason or other. The Railways, however, want complete control. If the hon. member will feel happier about it, I will admit that there are legal uncertainties. Apart from clearing up those uncertainties, however, we want complete control within that container stacking area. In other words, our vehicles must operate there more or less in the way which the hon. member for Durban Point described a moment ago. The hon. member for Durban Point asked me what the position was with respect to the admission of members of that association, the Carriers’ Association. I really do not think that this is relevant at the moment. I should, however, like to read something to the hon. member which sets out the present position. I quote—

I think this matter has been raised before in this House. It is a very unsavoury affair. I shall now continue with the quotation—

This is the present position. The hon. member for Durban Point presented the position in that container stacking area as he saw it. The position as he sees it, applies to favourable conditions and furthermore is very theoretical. The hon. member ought to know that a very large number of containers must be handled there and that they are very heavy. He knows that traffic can build up, with the possibility that 100 or more carriers will have to stand outside and wait to come in so that they can come and collect their goods according to the computer—as he puts it, not one by one, but “their” goods. This can cause very major problems, and it is due to he practical circumstances that we find it essential that as regards this specific area only, the Railways should not only have control, but should also attend to the physical handling of those goods. Over and above this, there will still be considerable work for private enterprise. The hon. member for Orange Grove complained about compensation. I do not see any signs of damage. At present there is no question of compensation.

Clause put and the Committee divided:

AYES—101: Albertyn, J. T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha L. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetsee, H. J.; Coetzee, S. F.; Cronje, P.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. F. C.; Du Plessis, G. C.; Du Toit, J. P.; Engelbrecht, J. J.; Greeff, J. W.; Grobler, M. S. F.; Grobler, W. S. J.; Hartzenberg, F.; Hayward, S. A. S.; Hefer, W. J.; Herman, F.; Heunis, J. C.; Hoon, J. H.; Horn, J. W. L.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, S. F.; 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, J. P. C.; Ligthelm, N. W.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, J. J.; Marais, P. S.; Maree, G. de K.; McLachlan, R.; Meyer, P. H.; Morrison, G. de V.; Muller, H.; Muller S. L.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schoeman, H.; Scott, D. B.; Simkin, C. H. W.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Swanepoel, K. D.; Terblanche, G. P. D.; Treurnicht, A. P.; Ungerer, J. H. B.; Uys, C.; Van den Berg, J. C.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Tonder, J. A.; Van Wyk, A. C.; Van Zyl, J. J. B.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Volker, V. A.; Vosloo, W. L.; Wentzel, J. J. G.

Tellers: J. M. Henning, P. C. Roux, A. van Breda and C. V. van der Merwe.

NOES—38: Bartlett, G. S.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Cadman, R. M.; Deacon, W. H. D.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Eglin, C. W.; Graaff, De V.; Hickman, T.; Hourquebie, R. G. L.; Hughes, T. G.; Jacobs, G. F.; Lorimer, R. J.; Miller, H.; Mills, G. W.; Murray, L. G.; Oldfield, G. N.; Olivier, N. J. J.; Page, B. W. B.; Raw, W. V.; Schwarz, H. H.; 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 Keyerslingk, C. C.; Waddell, G. H.; Wainwright, C. J. S.; Wood, L. F.

Tellers: E. L. Fisher and W. M. Sutton.

Clause agreed to.

Clause 15:

Mr. Chairman, I wish to refer to the unsatisfactory reply which the hon. the Minister gave at the end of the Second Reading debate in respect of the change of the title “artisan” to “technician”. I had pointed out that the change went hand-in-hand with the closing of the gap between artisans and what were previously known as technicians, and that this had created considerable discontent. The hon. the Minister then gave a reply which to my mind is nowhere near a sufficient answer to the complaint which has arisen. The hon. the Minister himself, in a letter dated 13 June 1975 to someone else, and dealing with a different matter, had the following to say—

Yet the hon. the Minister told us when he replied to the Second Reading debate that this was an agreed measure because the staff association had agreed to it. What he did not tell the House was that those persons previously known as “technicians” and now known as “senior technicians” were not members of the Artisans’ Staff Association; they were members of Salstaff since they were salaried staff. They were compulsorily transferred from Salstaff and all new technicians were forced to join the Artisans’ Staff Association. However, what chance do a handful of some 700 men have in an association representing artisans? Its very name is the “Artisan Staff Association”. They pressed to have themselves classified as technicians and they succeeded. I have no objection to that, but the hon. the Minister accepted their recommendation in the name of the existing technicians who were the sufferers in this exercise. The hon. the Minister said they had been given an allowance, and so on. However, that was five months after the change which virtually closed the wage gap or, if the artisan was getting an additional allowance, when the gap was completely closed, and there is still a feeling of tremendous injustice.

There is no maximum and minimum salary in the new class which this amendment is creating. In other words, a senior technician with ten years’ service will be on exactly the same scale as the senior technician with 20 or 25 years’ service. There is no graduation with time. On the other hand, the artisan, now called a technician, is paid according to different grades. After five years his basic salary goes up from R425 to R450 and R475, whereas the senior technician, a man with special qualifications as the hon. the Minister himself recognized and acknowledged in the letter I mentioned, which he wrote to another member of Parliament about a different matter, is not treated in the same way.

Another injustice is that they receive no bonus work at all. In February 1975 the average bonus for an artisan at the Salt River Works was 42% or R125 per month. In the case of one shop, the average was 68% or R204 per month. This is bonus work for which the artisan receives pay in addition to his basic salary. He is now called a technician and continues to get bonus work. This Bill makes him a technician, but the senior technician, who was previously a technician, gets no bonus work and no opportunity to earn extra money whatsoever.

If the hon. the Minister wants any evidence of the dissatisfaction that exists, I would ask him why the Administration sent a delegation from Johannesburg to visit systems to inquire why artisans, now called technicians, are not prepared to take courses or qualify as senior technicians. Obviously, the answer is simply that it is not worth it. I know the names of the two men who went around making the inquiries and I can give them to the hon. the Minister. My information is that the answer they were given was: “It is not worth it; you study and get additional qualifications; you lose your bonus work and get a pittance in additional pay; you lose the benefits artisans get”. If the hon. the Minister finds himself short of these highly skilled people and finds that his signals communication is breaking down, we shall remind him that this was brought to his notice and that he was duly warned. Whilst we cannot vote against this for obvious reasons, we wanted to lodge our protest so that it would be on record that we had given the hon. the Minister due warning.

Mr. Chairman, clause 15 reads as follows—

The reason for the necessity of introducing this clause, is that negotiations have taken place with the artisans over a period of years to give them salaried status, and that at the same time a work evaluation was made which resulted in some of those trades being up-graded, and it was agreed that an artisan would in future be called a technician.

No one objects to that.

That is the purpose of this paragraph. I am merely mentioning it.

The hon. member for Durban Point is using this opportunity to further the interests of the senior technician, which were quite irrelevant here. I do not blame him for doing so. He may do so by all means. It is my responsibility to see to all the different trades and all the work in the Railway service. I am even more concerned about this than he is. Therefore I welcome his interest in any particular section. However, I must tell the hon. member that this is a subject about which I am able to talk with authority because I myself was an artisan on the Railways. What the hon. member said was completely true.

I hope you were better as an artisan than you are as a Minister.

I was an excellent artisan and I am an even better Minister. It is true, as the hon. member said, that we need good men as senior technicians. They are also expected to have achieved a certain degree of technical knowledge. This is laid down as a requirement. Undeniably we need good and capable people. That does not mean that we should not have equally capable and probably as well, if not better, academically qualified men among the artisans or technicians—“technicians” is their new designation now. During the Second Reading debate I told the hon. member that it is not only a question of money. He wants to discuss everything in terms of money. At the time when we made this work evaluation, and created the name “technician” and placed a number of artisans in that category, we placed them on a salaried basis, which gave them a higher income. This did not happen to the senior technicians. In other words, the senior technicians had nothing to do with it; they were already on a salaried basis. Their position was not considered at all when the position of the artisans was considered. Now the hon. member comes and makes a statement that “they are the sufferers in the exercise”. Where do they suffer? What disadvantages did it entail for them?

Their qualifications are not recognized.

Their salaries were not reduced; they were simply not increased. In other words, their position did not deteriorate. It was not prejudiced in the process. They are still exactly where they were. We have an old saying: One should not be a dog in the manger. The dog is the manger; it is unable to eat the fodder, but it keeps the cow away. In this connection the same applies to them as well. They begrudge the artisan the fact that he is becoming a technician and improving his position. The hon. member said that they were the sufferers and that they would be detrimentally affected. I do not want to argue with the hon. member about that now. Subsequently, as a result of their satisfaction, we granted them another salary adjustment. During the Second Reading debate I told the hon. member for Maitland that he should not be obsessed by the money aspect.

When I joined the Railways, I could have become a turner, a fitter or a boiler make. I had the opportunity of choosing one of those three trades. I chose to become a turner.

At least he did not turn into a United Party supporter.

I chose to become a turner, notwithstanding the fact that it would in fact have been more lucrative to have become a boiler maker or a fitter, because they received, as we called it at that time, a “dirt allowance”. Fitters and boiler makers received a “dirt allowance” from the first day, while I as a turner did not. However, I was not obsessed by it. I thought the work of a turner was at least a little more sophisticated. This was a somewhat cleaner and more refined job, although the pay was lower. That is why I chose to rather become a turner.

At least a turner is better than a distorter!

Quite a number of these factors are at stake. A man’s method of work, his status in the service of the Railways—these are all factors which play a role. I want to tell the hon. member that I realize that we are living in a materialistic age, but he should not be completely obsessed by the aspect of salary or remuneration. Although we have virtually misused this opportunity in order to discuss this matter, I should just like to say that we could discuss the senior technicians again when the next salary adjustment is made. I am prepared to listen to their objections and complaints and if they are justified, we shall grant them the necessary adjustments.

Clause agreed to.

Clause 17:

Mr. Chairman, the hon. member for Durban Point referred to this clause during the Second Reading debate. I failed to reply to him then, but I should like to do so now. He asked me what happened to the report of the inquiry instituted into the Railways Sick Fund. I just want to tell him that I now have the report here in my hand. It is in two volumes, each of which consists of approximately 250 typed pages. If the hon. member is interested in reading it, I am quite prepared to make it available to him.

Since this report became available, the recommendations resulting from it have been discussed with the Sick Fund Board and certain decisions were taken of which some were put into effect as long ago as 1 April last year. This met with my approval. The recommendations that were approved, were particularly concerned with the assistance scheme and the improvement thereof. This included dental services, maternity benefits, ophthalmic services, etc.

I just wanted to make it known that the report was here. It is available to the hon. member. There have already been reactions to the report and I shall willingly explain it in detail to the hon. member if he is interested in it.

Clause agreed to.

House Resumed:

Bill reported without amendment.

Mr. Speaker, I move—

To feed the hungry millions from the world’s available agricultural resources, it is imperative that modem technology be utilized to the full. New varieties of plants giving higher yields can contribute substantially towards increasing the world’s food supply. The techniques involved in the development of new varieties require substantial financial inputs. The majority of new varieties are bred by private enterprise and such breeders are entitled not only to recoup their expenditure, but also to profit from their efforts to improve the productivity of plant varieties.

New plant varieties are, throughout the world, regarded as the intellectual property of the breeders thereof and such property is generally protected by means of legislation. In fact, the Republic has had an Act on this subject since 1964, but recent international developments have, however, caused this Act to become outdated in many respects.

It is desirable that new plant varieties be available in as many countries as possible and plant breeders are generally willing to cooperate in this respect, provided their financial interests and rights are properly protected. The necessity to standardize measures in this regard resulted in an international conference on the subject and the establishment of the International Union for the Protection of New Plant Varieties, internationally known as Upov. The Upov Convention is accepted throughout the world as the most advanced guide-line on legislative protection of rights in new varieties and the Bill being considered today is based on this convention. It is, in fact, one of only a few in the world which has as yet been drafted to incorporate the principles accepted by Upov. Acceptance of the Bill would make the Republic one of the leaders in the field of protective measures for plant breeders’ rights. The object of the Bill is, essentially, to provide for a system whereunder plant breeders’ rights in new varieties may be granted and registered in an orderly manner. The nature of such rights is defined and measures to obtain legal protection against infringements thereof are provided.

*Mr. Speaker, the most important factor in the consideration of an application for a plant breeders’ right is whether the variety in question is a new one. It is therefore essential for such a variety to be thoroughly evaluated, and this requires adequate facilities and staff. In accordance with international practice it will not be possible for plant breeders’ rights to be granted in respect of new varieties of all kinds of plants. The manpower situation and limited facilities compel us only to consider applications in respect of those kinds of plants which are of sufficient economic importance. The norms for the evaluation of a new variety as proposed in the Bill, are in accordance with the international accepted guide-lines and will be applied by the State as uncommitted party. I should like to stress the fact that a new variety should be clearly distinguishable from other known varieties by virtue of one or more important characteristic. If a peach blossom were to have a different colour without the fruit differing essentially from a known variety, it is hardly likely that plant breeders’ rights would be granted in respect thereof.

Because a variety is always identified by its denomination, it is essential that every distinguishable variety should have an equally distinguishable name denomination. Such denomination forms part of the international botanic nomenclature and should as far as possible be the same for the same variety in all countries. It is therefore essential for liaison to take place at international level before denominations are approved. Provision for this, as well as the guide-lines laid down by Upov for suitable denominations, are incorporated in the Bill. One of these guide-lines is that trade marks cannot be approved as the names of varieties. This is necessary, because the holder of a trade mark has the right to prevent such a variety from being used and, therefore, from being distributed. It is essential that the granting of a plant breeders’ right shall be made known generally in order to enable the holder thereof to enforce his rights. It is therefore laid down that particulars be published in the Government Gazette and that a register, to which the public will have access, be kept. It is also envisaged, according to international practice, to publish a plant breeders’ rights journal from time to time in which relevant particulars in regard to the plant breeders’ rights will be made public.

The rights granted by the Bill to a breeder according to the guide-lines of Upov, consist of his being granted the optional exclusive right for a particular period in order to multiply the variety in question and to do business therein. Furthermore, it is laid down that other persons are only allowed to take such action under a licence obtained from such a breeder. If a breeder uses his rights judiciously, he can definitely derive adequate remuneration from them. He will receive royalties from his plant development through the granting of licences, and the better the variety the greater the market will be for reproductive material.

A breeder may possibly be able to create monopolistic conditions by refusing to grant licences, particularly in cases where he cannot meet the demand for reproductive material himself. Provision is therefore made that, under specific circumstances, he may be compelled to issue licences. Even then he will be entitled to royalties. The period of validity of a plant breeder’s right may seem to be exceptionally long, but this has been laid down not only to enable the breeder to recoup his cost, but also to make a reasonable profit. This is in accordance with Upov’s guide-lines and, through differentiation of periods, recognition is given to the fact that some kinds of plants multiply slower than others.

In the Bill special provision is being made for the civil actions a breeder may institute in a court of law when someone infringes upon his rights. Infringement upon a plant breeder’s right and non-compliance with the conditions of a licence are regarded as a very serious matter. For this reason it is provided in another Bill, which will serve before the hon. House later, that official statistics in connection with plant improvement schemes may be made available to breeders. This information will make it easier for breeders to furnish proof of infringement in a court of law.

†The Bill provides for the payment of various fees for the registration and maintenance of a plant breeder’s right. When determining the amount of such fees, cognizance shall necessarily have to be taken of the actual costs of the services rendered. Such fees shall in any case be in harmony with those charged in other countries. Breeders of new varieties are making a valuable contribution towards the national welfare and it would be inadvisable to burden them with unreasonably stiff levies.

Provision is also made for the administrative actions necessary to register and maintain a plant breeder’s right, as well as for related matters. In my opinion the greater protection of plant breeders’ rights provided for in this Bill, should stimulate the activities of local plant breeders. Furthermore, the protection is available not only to nationals of the Republic, but also to plant breeders from certain overseas countries with which the Republic has reciprocal agreements. Its international acceptability should no doubt encourage such breeders to market their best varieties in the Republic. This, in turn, would benefit our agricultural industry through bigger and better crops. The Bill provides the breeder with the security that, subject to certain limitations, he will be able to reap the fruits of his labour. The Bill is fully supported by the S.A. Agricultural Union, the S.A. Plant Breeders’ Association and other interested bodies.

Mr. Speaker, for various obvious reasons we on this side of the House will support the Second Reading of this Bill. In the first place, the hon. the Minister mentioned that the first Bill of this nature had been approved by this House in 1964. On that occasion we had a very detailed discussion on the rights of plant breeders. I am very grateful that the hon. the Minister, particularly in the final part of his speech, said that the foreign plant breeders can also obtain plant breeders’ rights in South Africa. I know a similar provision existed as early as in 1969, when we amended the legislation at that time. For the sake of interest I just want to point out that, in 1964, when we discussed this matter, the United Party, through the then hon. member for Pinelands, the late Mr. Oswald Newton Thompson, introduced an instruction in this House to the Committee of the Whole House to consider granting such rights to foreign plant breeders in South Africa as well. I am mentioning this, Mr. Speaker, to point out that as long ago as almost 12 years a plea was made by this side of the House that we should not be short-sighted and not only rely on our own plants, trees and shrubs which are bred in South Africa but that we should also make use of the extraordinary sound varieties one often finds in the overseas agricultural industry. This was suggested here by the then hon. member for Pinelands but hon. members opposite did not want to accept it at that stage. For that reason we are grateful that such a provision is being introduced in the legislation today. It is also to the benefit of South Africa that this organization, Upov, has been established and that we are going to obtain membership thereof. What we are really doing is discussing the patent rights of the breeder of a plant. When a person undertakes research work with a view to breeding a new variety, it often takes hours, months and years of hard work and dedication before a new variety can be bred. These people render a valuable service to agriculture. One need only look at the fruit industry and the wonderful progress that has been made there on the part of the Department of Agricultural Technical Services, and at the contribution made by the individual farmer. It is only right that, when someone breeds a new variety he should have the right to give the proper denomination to that new variety and that his rights as breeder will be protected through legislation. It means a great deal to our agricultural industry, and where we find ourselves on the threshold of a period when increasing demands will be placed upon our agricultural industry, one can never allow any form of complacency, but we should always endeavour to achieve high productivity and improved plant material, in other words, not only to maintain higher production but also to breed the kind of material that will be able to resist virus, climatic conditions and any form of disease. For that reason we on this side of the House say it is right that we should have this form of registration which will serve to protect the industry. This will mean that the material the farmer plants on his land will be improved all the time, and also that stricter control will be exercised over this matter. If one did not have stricter control, any kind of material which might be harmful to the agricultural industry in one way or other, could later be available on the market. For that reason we not only expect this legislation to take care of the rights of the individual breeder, but at all times to endeavour to be of far greater value to the long term vision we have for our agricultural industry than to the individual breeder. For this reason we support the Second Reading of this Bill.

Mr. Speaker, we are grateful that the official Opposition supports this Bill. I have always thought that the hon. member for Newton Park is able to express a clear opinion on matters affecting agriculture. Before dealing with the Bill as such, I should like to discuss cultivars in a lighter vein. I am concerned about the hon. member because, as fate would have it, there are sitting poor political cultivars on both sides of him. I do not know for how long he will be able to maintain this clear line of thought. I am referring to the hon. members for Hillbrow and Bezuidenhout, whom I should like to refer to as the two poor political cultivars.

It is a fact that a farmer can only achieve success if he is an able man, if it is a good farm he is farming on, if the climatic conditions are favourable, but also if he uses a good quality seed, plants or varieties. We are living in an era in which millions of people are placing high demands upon agriculture. If we want to place high demands upon the farmer, it is essential that we must be able to provide him with a top quality cultivar or variety. It is essential for the farmer to increase his production and that price increases should be limited. In this process it is also essential for the producer to be placed in a position to increase his income so that this will serve as a greater incentive to him. For that reason we welcome this new development in the plant breeders’ industry.

The hon. member for Newton Park mentioned the significance of the plant breeder and the care, dedication and patience he applies to the project he is working on. In South Africa and particularly in that part of the world where I come from, we can specifically mention two cultivars which South Africa is proud of. These are pure cultivars which have been bred in this country and which have effected drastic changes in the fruit and grape industry. I am referring to the Kakamas peach, a peach which has become famous because of its quality and because it bears true to type. I am also referring to the Pinotage grape, the wine which has become generally known in South Africa, thanks to its quality.

The researcher who is engaged in his plant breeding plays an important role. Because he has to maintain high ethical norms and standards in his industry, he therefore has every right to claim protection from the authorities. In this respect the hon. member for Newton Park quite rightly referred to the 1964 Act, i.e. the Plant Breeders’ Rights Act. For that reason he also expressed his gratitude towards the hon. the Minister this afternoon for this new step.

The fact that we are now able to associate and co-operate with the International Union for the Protection of New Plant Varieties means a great deal to us. It would be wrong of me to keep quiet about this, and for that reason I say that South Africa can feel grateful towards the hon. the Minister and his department for what they have done to establish liaison with the international organization, i.e. Upov. It was not easy. I really think the agricultural industry can thank our hon. the Minister for being successful in his attempts to establish liaison with this international organization. It is a fact that we will greatly benefit through our association with this organization.

I want to emphasize the importance of protection on the part of the authorities, through which high qualities are ensured. It is important for a farmer who farms with long-term plants to obtain quality when he decides to plant. He has to know beforehand that the particular plant or cultivar will serve its purpose. The plant or cultivar has to maintain a high production wherever it is planted. In this regard I again want to mention specifically the fruit tree and the vine. This is not something one can plant this year and take out next year to plant something else in its place. The capital outlay is too big and it takes years before the first crop is harvested.

We have to pay tribute to the private plant breeder. I have already mentioned the Pinotage grape variety, and in this regard one has in mind the plant breeder, researcher and scientist who have perfected the cultivar. We also have in mind the Kakamas peach variety and the researchers who went to great pains and who did research work to be able to produce this peach. For that reason we have to pay tribute to these people. However, we must not neglect to pay tribute to the Department of Agriculture itself. We also have to pay tribute to an organization such as the KWV, which has spent a great deal of money and exercised great patience in the sphere of the plant breeders’ industry.

I am glad about one thing, and that is that mention is made in clause 23 to 27 of the powers of inspection granted to the Registrar. When a cultivar is placed on the market and reproductive material is or remains inadequate, such variety is of no value. For that reason we welcome the idea of powers of inspection and of compulsory licences.

However, I want to mention one aspect I am concerned about as far as clause 27 is concerned. Since I know the hon. the Minister to be a practical and approachable person as farmer and Minister, I know that he will be sympathetic towards this aspect if I tell him what it is. It concerns the period of sole rights on material for new varieties. I am aware of the fact that it was pointed out to the hon. the Minister in representations that were made that the rights granted to plant breeders, could mean that plant breeders themselves could, for several years, arrange the multiplication of material of the relevant cultivars and that they do not necessarily have to operate through plant multiplication organizations in terms of a scheme. It may—and this is what we are concerned about—prejudice the efficient functioning of an official plant multiplication organization. I shall be glad if the hon. the Minister will consider this particular aspect I am concerned about.

I want to conclude by saying that I am grateful—and this I also say in a light vein—that a clause has been inserted dealing with alteration of denomination. It is a fact that our hon. friends from the north have become very fond of the products of certain cultivars in the wine industry, i.e. red wine. Information at my disposal indicates that a vine variety which, if I remember correctly, is called Catawaba, is growing wild in the Transvaal. For purposes of protection I want to ask that the name Catawaba should not be changed into “Cabernet” or “Pinotage”.

Mr. Speaker… [Interjections.] In the midst of all these jibes the hon. the Minister of Agriculture and I are going to tackle South Africa’s agricultural problems and together we are going to solve them without making a fuss of it. I want to put the hon. the Minister’s mind at ease immediately and say that this party wholeheartedly supports the Second Reading of this Bill. The reasons are obvious, namely that in this field South Africa has already rendered appreciated service and has made a considerable contribution over the past years. Throughout the world there are plant varieties which were developed in South Africa and throughout the world there are people who know of the work which is being done in South Africa. They come here to study our methods and like being host to South African experts who travel overseas. It would be a major forward step in South Africa if we could obtain membership of the international control body established to protect the rights of plant breeders. It is a good thing that the hon. Minister submits legislation of this nature to the House to make this possible for South Africa. It is undoubtedly excellent legislation and this is proved by the fact that the organizations concerned with this, inter alia the plant breeders’ organizations, the growers, seed dealers and the Agricultural Union, have expressed their support of this legislation. There are obviously no controversial provisions in this legislation. I would nevertheless like to comment on certain aspects of certain clauses, comment based upon uncertainty and confusion which exist in the minds of certain plant breeders with whom I have discussed this matter. These are not controversial provisions, but only provisions embodied in certain of the clauses which I feel the hon. the Minister may elucidate by means of a further discussion in order to remove the uncertainty and confusion.

The first point I want to make concerns clause 16 and other clauses which provide for a protective direction. A protective direction is applicable where an application has been submitted for the granting of a plant breeder’s right and is meant to protect the person or institution that submitted the application for such period until the application is rejected or granted. A protective direction has the same value as a plant breeder’s right on the particular plant variety which it refers to. The plant breeders feel that this is a sound provision, but that a maximum period should be specified for the granting or refusal of a plant breeder’s right.

The second problem is in respect of clauses 26 and 27 which deal with the refusal of a plant breeder to issue a licence to another person to breed the same plant varieties. The words “reasonable grounds for the refusal” are being used here. Further, the words “unreasonable conditions” to which the granting of such a licence is subject, are also used and then mention is also made of “the reasonable requirements of the public”. The plant breeders feel that the use of language of this nature will create difficulties and problems and they feel an effort should be made to find a more specific formulation, so that everybody will know what is meant. In the same clause it is further stated that these products have to be made available to the public at reasonable prices, and once again it is felt that the concept “reasonable price” does not give sufficient indication of what exactly is meant and that the department will have to come forward with a formulation at one stage or other to make it more clear and more acceptable. When the sole right of a plant breeder is referred to, I think one of the previous speakers has mentioned this—it is only a matter of mention being made of it and the circumstances under which that sole right will be granted, are not specified. Nor is it specified for how long this will last. Confusion in this regard should also be removed.

In clause 42 it is also being provided that should any person feel aggrieved in terms of the provisions of this legislation, the hon. the Minister could appoint a board and such a person could then appeal to this board. A provision exists which reads that the decisions of the board are final, i.e. that no appeal can be lodged against the decisions of a board of this nature. It is felt that plant breeders and others should have the right to appeal to a higher court.

There is nothing which prevents him from doing this.

The hon. member says there is nothing which prevents this, but the wording of clause 42(7b) states that no appeal shall lie against the decision of the board.

He can still go to a civil court.

Yes, I understand what the hon. member means. This means that an appeal can still be lodged with the Supreme Court. I think it will be advisable for the hon. the Minister to state this clearly.

Further, clause 45 deals with offences and penalties in terms of this legislation. Provision is being made to allow matters of this nature to serve before a magistrate’s court. Provision is also being made for fines of not more than R1 000 and for imprisonment of not more than two years. It is felt that in this regard, where highly complicated technical matters have to serve before the court and magistrate’s courts normally do have no knowledge or experience of these matters, it is not advisable for magistrates’ courts to lay down penalties of this nature. Matters of this nature should serve before regional courts and senior magistrates’ courts.

The last aspect I would like to comment on, concerns clause 49, which reads as follows—

It is felt that this indemnity is too wide, that where, for instance, negligence on the part of an official is responsible for losses sustained by any person, the State should in that case accept responsibility. Over and above these questions, which I am putting so that we may have some more clarity from the hon. the Minister, it is with pleasure that we support this Bill.

Mr. Chairman, the Bill as it is before us here, is introduced to meet the demands of the overseas convention. For that reason I assume that the majority of the provisions are aimed at complying with the laws which are recognized internationally. For that reason I am sure the Minister will be able to reply fully to the points mentioned by the hon. member for Bryanston. Sir, I wonder how many people know that the very first emigrants from South Africa were the bulbous plants ships’ captains found at the Cape and took with them to Europe where they, were improved. This once again makes us realize how we can improve our veld plants and turn them into an asset for us. Now this kind of exercise should receive the necessary protection, and the person who did the work, should be able to reap the advantage of it. In other words, we should welcome this legislation because it protects the patent rights of such a breeder.

I just want to draw attention to a few points, because I do not want to repeat what was said by other hon. members. Firstly, I want to draw attention to the important work which is being done by our Department of Agricultural Technical Services on the improvement of plants, and also the work which is being done by our Agricultural Control Boards to establish plant improvement schemes. It would be very foolish if one did work of this nature and did not give the necessary protection to the various products which are established in this way. For that reason it is necessary that there should be very close co-operation in this regard between the Department of Agricultural Technical Services, and the various bodies involved with this task. I had the privilege to see what is being done by one of our institutions at Roodepoort by means of plant improvement and the development of new varieties. It impressed me. It is important to our farming industry. For instance I am thinking of a new direction which is developing, namely the breeding of plants in hothouses—a completely new direction which our Department of Agricultural Technical Services is trying to promote. I am convinced of the fact that with the protection this legislation is going to afford us and the contact this is going to give us with overseas countries, we are rendering our farmers a major service.

The hon. member for Humansdorp, who has just sat own, referred to the protection afforded by this Bill. I want to raise a matter of principle with the hon. the Minister during this stage of the Bill although it is a subject which can also be dealt with in the Committee Stage. I want to refer the hon. the Minister to the definition of “sell” in this Bill, and I want to suggest to the Minister that between now and the time we take the Committee Stage he might carefully investigate the feasibility of formulating a definition of “sell” which could be generally standardized and generally accepted. Mr. Speaker, I believe this would be in the public interest, because at the moment there is a variety of definitions of the term “sell”. I have selected a few at random, and I am sure there are many more examples of variations in the definition of “sell” in many of our pieces of legislation already on the Statute Book. We have a definition in the Hazardous Substances Act, No. 15 of 1972. We have a definition in the Foodstuffs, Cosmetics and Disinfectants Act, No. 54 of 1972. There is yet another definition in the Medicines and Related Drugs Control Act, No. 101 of 1965. There the terms “barter and exchange” is also included in the definition of “sell”. We have a further definition in the Price Control Act, No. 25 of 1964, where there is an inclusion of marking with the selling price, and in the Bill which has yet to come before us, the Trade Practices Bill, there is a further variation on the definition of “sell”. I believe it is not beyond the wits of the legal draftsmen in the Government departments to formulate a single definition of “sell” which could comply with all the requirements needed by the various pieces of legislation. I think the time could perhaps be now. This Minister is now introducing a new Bill entirely, and he could be a trend-setter and ask his legal advisers whether my suggestion is feasible. Then perhaps during the Committee Stage the hon. the Minister would be prepared to move as an amendment a definition which could meet all his requirements and all the requirements of the other pieces of legislation in force in our country. I put this to the hon. the Minister and I would be interested to hear what his reactions are to these suggestions.

Mr. Speaker, the hon. member for Newton Park quite rightly referred to the motion of the late Mr. Ossie Newton Thompson 12 years ago when he proposed in 1964 that we should also establish liaison internationally. But at that time such a body did not exist yet. The hon. member was far-sighted—this I must admit—but this new organization was only developed afterwards when the importance to South Africa of international liaison was realized to an increasing extent. But the hon. member should remember that this does not only concern plants; it also concerns seed. It covers the whole spectrum. When considering the liaison South Africa enjoys with other countries, I want to say we do not discuss politics with people when discussing agriculture. When one produces food, one looks to see whether a man is hungry, and it is praiseworthy when one sees how we receive foreign people here, inter alia researchers, how we exchange people and how our people go there. We are normally extremely excited when something happens here in the sphere of sport. However, these things happen without any fuss and no one is aware of them. The international liaison exists and I think we should be proud of the fact that this department, which is the biggest research department in the Republic and in Africa, is able to achieve things of this nature. I want to thank the hon. member for supporting this Bill, because it is aimed at increased productivity.

The hon. member for Worcester referred to the international organization and the significance thereof. I thank him for that. Of course, he has a completely distorted idea of the grapes which are produced in the Transvaal. But we forgive him. I think we should ask him to pay a visit to the other side of the Hex River Mountains! In any case, I want to tell the hon. member that the licence period is no problem. All these aspects have been ironed out with the various interested parties. I think the hon. member for Middelburg is suffering badly today, because he has not yet made his maiden speech, and therefore is not allowed to speak. He is the president of the Growers’ Association, and now he has to sit there without being allowed to say anything. In any case, his organization and the various interested parties including the individual growers, assisted us in drawing up these provisions. I would like to thank the hon. member for Bryanston for his introductory words, where he said he and I will solve the agricultural problems without making a fuss. I once asked him how many teats a cow had and he then said he knew. I am sorry I asked him this. [Interjections.] However, I think he and I are going to co-operate well.

The hon. member for Bryanston referred to the maximum period regarding provisional protection. The person applies, but he wants temporary protection until the Plant Breeders’ Rights Act applies to him. The provisional protection expires automatically when he is registered after he has been approved and after it has been determined that the variety, which he wants to register, meets the requirements. From that flows the period of the sole right, which the hon. member referred to, as well as the question concerning reasonable prices. A reasonable price cannot be defined in an Act. It should be borne in mind that we want to take the people with us all the way. Therefore, if we are unreasonable, we may discourage people, and then we shall not achieve what we want to achieve. A reasonable price simply cannot be defined in an Act. If one does not enable a grower to make a reasonable profit, one discourages the industry. Therefore one cannot lay down something of this nature in an Act. The period of a sole right depends on the royalties a person receives and it also depends on whether he has already made his money and whether he has a much sought after variety which sells quickly. Under some circumstances one wants to make the variety available more quickly. For instance, I have in mind the new maize varieties or a new peach variety. The period varies and may be adjusted from time to time. For that reason the Act has been formulated in this way.

The hon. member for Bryanston also asked about appeals to a higher court. In the first instance, a person may appeal to the Minister in terms of clause 42. The Minister may also appoint a board, and the members of the that board must be practical people. The hon. member says a person should be able to appeal to a regional court. These problems are however solved with the appointment of a board of experts who specialize in this sphere. One could have the best judge or magistrate, but there are always problems with technical terms, and so on. However, the interjection of the hon. member for Newton Park was right on target. One may appeal to a higher court, but in practice matters never go that far. We settle the matter amicably.

The hon. member says the limitation on the liability of the State in clause 49 has been made too wide. Liability of the State enters the picture as a result of the negligence of officials or in cases of wilful action. I shall furnish more details about this clause later. However, I appreciate the fact that the hon. member went to the trouble of going into these matters so thoroughly. When these matters are defined in an Act, I feel it is standard practice to do things in this way, in co-operation with the various interested parties.

The hon. member for Humansdorp mentioned the fact that the hon. member referred with gratitude to the work the department had done. He specifically mentioned Roodeplaat. We have men there who undertake research work and place new varieties on the market. Those varieties enable individuals to receive much larger incomes. Incidentally, I have in mind a new grape variety which ripens by 3 November in the Transvaal. A young boy did the research in this respect. He worked on a cross between a Hanepoot and a Catawba. The new variety has the juiciness of the Catawba, but the flavour of a Hanepoot. Then the variety is crossed with Queen of the Vineyard, which is an earlier variety. By 3 November one can harvest that grape and sell it at R3 per 10 1b box on the Johannesburg market. The farmer makes the money, but the researcher never receives any recognition and works every day. For that reason I am glad the hon. member referred with gratitude to the researchers in our department who make it their life task to achieve these objects.

†I now want to refer to the hon. member for Berea. I shall go into the question of the definition of “sell”. I shall ask my legal advisers whether it is possible to formulate a definition of “sell”, and then I shall reply in full to the hon. member in the Committee Stage.

Motion agreed to.

Bill read a Second Time.

Mr. Speaker, I move—

The report of the S. A. Law Commission regarding the right of recourse, in terms of section 3 of the Matrimonial Affairs Act, 1953, of a spouse married out of community of property in respect of contributions for necessaries for the joint household, in which report the provisions contained in this Bill are recommended, was tabled on 29 January 1976.

The problem investigated by the commission lies in the fact that the proviso to section 3 of the Matrimonial Affairs Act, as interpreted by the courts, gives to the wife married out of community of property full recourse against the husband for all debts paid by her in respect of necessaries for the joint household. The commission points out that this is a deviation from common law which can cause a great burden of debt to accumulate against the man or his estate, for example, in the case where the woman is wealthy and contributes considerably to necessaries for the joint household or where the man is an invalid and the woman bears the full cost of the joint household. The woman who is married out of community of property also appears to occupy an unreasonably advantageous position in relation to that of the woman who is married in community of property where the latter has an income of her own which is spent on necessaries for the joint household.

†The Law Commission is convinced that the present arrangement is unsatisfactory and could result in serious prejudice to the husband. I am in agreement with the view of the Commission that it should be accepted in principle that it is the duty of each of the spouses to contribute pro rata according to his or her means for necessaries of the joint household, and the Bill now before the House provides accordingly. In the determination of the extent to which the spouses are respectively liable to contribute, it would be possible to take into consideration, in addition to the income of the spouses, other factors that could influence the proportion of their respective contributions.

*Mr. Speaker, the Law Commission is investigating other facets of matrimonial property law as well. However, because the anomalies to which section 3 of the Matrimonial Affairs Act gives rise have serious implications for spouses married out of community of property, the commission recommended that the proposed amendment be effected at once, and for this reason the Bill is now being introduced.

Mr. Speaker, we on this side will support the Second Reading of this measure. As the hon. the Minister has indicated, this arises out of a report of the S.A. Law Commission, the body we used to know as the Law Revision Committee, a committee of lawyers presided over by a judge. It had placed before it a report of a judge of the Cape Provincial Division of the Supreme Court in regard to a judgment given in his court in a civil action. It arose, as the hon. the Minister has rightly said, out of the Matrimonial Affairs Act of 1953, an Act which itself attempted to regularize and do away with uncertainties which were inherent in the common law—and still are—in respect of the relationship between husband and wife in so far as the provision of necessaries is concerned. As so often happens when one tries to codify the law, time has shown that there is a flaw in the legislation of 1953.

Plenty of flaws in that one.

Yes, there are also other flaws. I agree with the hon. member. One sees from the conclusion in the report of the S.A. Law Commission that they consider that other work should still be done to rectify the relationship between husband and wife. It seems quite clear from the report of the S.A. Law Commission that in the case of marriages out of community of property where the spouses retain the control of their own property, a husband could be and very often was prejudiced in so far as claims were concerned for household necessaries. That was, as I have indicated, a departure from the common law and was one of the findings of the Law Commission. It could also have the result that a considerable burden of debt could accumulate against the husband although the wife was well-off in the circumstances of the marriage. To sum it up, it is designed to do away with unfavourable or unfair treatment against a husband in respect of a marriage out of community of property. Comments were apparently called for and received by the Law Commission from a wide variety of interests, and there was unanimity as to the undesirability of the existing arrangement, but not necessarily unanimity as to what should be done. I think that the changes proposed in the Bill will bring about an improvement. I do not suggest that all aspects a of matrimonial relationships will be solved by the Bill, but it is certainly an improvement and consequently requires support. The hon. the Minister has indicated the criteria which are set out in the Bill, criteria which will guide the court in the future. The court will have a discretion and what the court will take into consideration in claims between the spouses will be not only the income of the spouses, but other factors such as assets of a spouse that may have been used for household necessaries and matters of that kind. All in all it is our view that this is an improvement and we consequently support the Second Reading of the Bill.

Mr. Speaker, I am grateful to hear that the official Opposition supports the Bill. I wonder whether the Bill will be supported by the other Opposition party with the same degree of enthusiasm, because the Bill undoubtedly removes from the Statute Book a discrimination in favour of the wife and against the husband.

Poor chaps! My heart bleeds for them.

The hon. member for Houghton stated by way of interjection that there were other shortcomings, too, in the law of marriage. This is undoubtedly true, but it is not the intention of the Bill to deal with those shortcomings. It is as well, too, to consider the concluding remark of the S.A. Law Commission, which reads as follows—

The commission then goes on to say that a report on this will be submitted at a later stage. Consequently, at this stage we shall confine ourselves to the Bill before the House.

It is clear that in terms of the common law, a husband and wife have the obligation towards each other to support each other on a certain basis. The 1953 Act brought about a change to the common law to the effect that that right between the parties was removed when the parties were married out of community of property. This had a very unfortunate result for the husband. This is most clearly shown in a court case which appeared before the Supreme Court in 1967, the case of Foord v. Vardy and Another as reported in the S.A. Law Reports, 1967 (1) 692 (W). The facts were that in 1962 Mr. Foord was involved in an accident in which he incurred a brain injury. He was admitted to hospital where he remained until his death in 1964 as a result of the brain injury. While in hospital from 1962 to 1964 he had no income. There were no children of the marriage. During the period that he was in hospital, his wife worked and earned an income. She supported herself on this income. After her husband had died, she sued her husbands’s estate for the expenditure she had incurred from her own income to support herself during the time that he had earned no income. In implementing the Act, the court decided that the husband’s estate was obliged to repay those expenditures to the wife. As I have said, the conclusion to be drawn is that there is clearly a discrimination against the husband in favour of the wife. The Bill now seeks to rectify the matter. I believe that we should congratulate the hon. the Minister of Justice on having been sensitive enough not to introduce the Bill last year, which was the year of the woman, but to have waited until 1976.

And 1976 is a leap year, too!

Let us consider how the Bill will work in practice. In terms of the Bill we shall now have the situation where each of the two parties, in terms of their relationship towards each other, will be obliged to contribute to the joint estate pro rata according to their income and means. When the pro rata contribution is calculated, there are certain aspects which may be taken into account, inter alia the services rendered to the joint household by a spouse, for which a servant would otherwise have had to be employed and remunerated. If I am not mistaken, this means that if the husband is obliged to wash the dishes one evening, he will perhaps be able to claim a credit for this from his wife. [Interjections.] Perhaps this would result in the husband, with the permission of his ever-loving wife, staying away from the washing up. Since this Bill bears the stamp of “man’s lib” in 1976, I take pleasure in supporting its Second Reading.

Mr. Speaker, I must say that the hon. member for Pretoria Central brought tears to my eyes. When I think of all these poor men who have been suffering all this terrible discrimination for so many years, it is a very sad story indeed. I want to reassure him that we women will look after him. We will support this measure because we happen to agree with the principle of pro rata contributions to household necessaries and we believe that if you want equal rights, you have to have equal responsibilities. I should, however, like to receive a little reciprocal treatment from the gentlemen in this House. I should like them to realize that this is only one of many, many discrepancies and anomalies in our law.

No, there are not that many.

It is ten years since this House amended the Matrimonial Affairs Act and as hon. members will realize, the original Act was passed way back in 1953. Indeed, I made my maiden speech on that particular measure.

Yes.

I am glad the hon. the Minister remembers that.

I am still waiting for you to say something about the disabilities of men.

I am saying it now, right now. The hon. the Minister has not waited in vain, but I am still waiting for him to say something about the disabilities of women. I have not heard him speaking up. He speaks up with great eloquence on all sorts of subjects, I must say, with remarkable ability to change some of the views that he held, but I have not heard him saying anything about women. I shall therefore have to wait a little longer.

You have belonged to only one party since you became a member of this House, have you?

No, no! I can only say that I was much younger in those days and made silly mistakes when I was younger; the hon. the Minister was older when he made his. When he made his mistakes he was a very old man. [Interjections.] It is years since I left those gentlemen. I was very young when I belonged to their party. At least I soon saw the error of my ways; it took him much longer. The other thing is that at least I remained on the side of the House that was and still is fighting the Government. In that respect the situation is rather different too, but we shall not go into that now, because it is not really germane to the measure before us.

As I say, it is ten years since we amended the Matrimonial Affairs Act. What interests me, is that only this particular aspect has been plucked out of the apple—one worm, so to speak, leaving a lot of other worms behind. I am sorry I missed the hon. the Minister’s Second Reading speech, but I was called away to take a trunk call. I gather that he said that this measure arose out of the Law Commission’s report, something which we all know. The Law Commission’s report does say that the commission is busy considering other aspects of the law. Indeed, the hon. the Minister himself, in reply to a question of mine earlier this session, informed me that the Law Commission was busy considering other aspects of our matrimonial laws. What I want to know is why this matter has suddenly become so urgent. As I say, it is ten years since last we made an amendment to this Act. Could this then not have waited a little longer? Could it not have waited until we had received a complete report from the Law Commission on all the different aspects of our law it is presently considering? We would then be getting a much more balanced measure before the House instead of this one which, I agree, removes the normally that the wife can claim back the full amount she has contributed towards the household necessaries.

I am interested to see that this Bill and the Law Commission’s recommendations go a lot further than the recommendations made by Judge Vos. My legal friends tell me that there was a case, Engelbrecht v. Engelbrecht, in which the judge drew attention to the anomaly and suggested that the proviso be changed so that the wife could claim up to the full amount and not simply the full amount without qualification. This would give the court the discretion to award her less than the full amount she contributed towards the household necessaries. I wonder why the Law Commission did not take that into consideration.

Who told you that they did not do so?

If they did do so, they certainly have not carried out the judge’s recommendations. It seems to me that, since the situation is being changed, instead of swinging the pendulum right back the other way, it would not have been a bad idea to introduce such changes a little more gently. As I have said, the hon. member for Pretoria Central brought tears to my eyes with his sad story of the woman who supported her sick husband while he was in hospital and contributed towards the cost of the household necessaries and then, when he died, actually had the impertinence to claim her full contributions against his estate. That, I gather, was the gist of his story.

Those are the facts.

I wonder whether the hon. member has omitted one or two other facts such as that the husband might have disinherited the wife entirely if they were married out of community of property. That is another big flaw in our present legislation. The husband may have taken a fancy to a nice young nurse who was attending him. [Interjections.] Well, he might have made his will before he became unconscious. Indeed, some people are unconscious while they sit in this House. That goes to show that anything can happen. In any case, what I have outlined is possible. I do not know whether the hon. member knows the full details of the case. Under our present law it is a glaring anomaly that spouses—I am referring to husbands and/or wives because I do not discriminate on the grounds of sex in this regard—can be completely disinherited if a spouse, married out of community of property, leaves a will disinheriting his or her mate. I think that that is dead wrong. I think there should be a minimum inheritance for the surviving spouse where the two people concerned were married out of community of property.

What about the position of the husband?

A spouse can also refer to the husband.

I thought you said “wife”.

No, I was most careful to say “spouse”; so the hon. member, too, will be looked after. In fact, this House is discriminating very seriously against the husbands of female members of Parliament, if it comes to that. I want a little reciprocal action in this regard. I want the husbands of members of Parliament who happen to be women also to be able to enjoy pensions. Will the hon. member please just bear that in mind … [Interjections.] That is rank discrimination and, what is more, it is discrimination against the men, the poor old men.

Anyway, as I say, we are supporting the principle of this Bill. I do not think it should be a party political measure at all. In fact, if any members on these benches wish to disagree, they are free to do so. That would not necessarily mean a split in the Progressive Reform Party; we do not consider this to be a party political measure. I think people should be able to express their own views on this. As a matter of fact, I think we are pretty unanimous in our support of this Bill. Nevertheless, I am going to move an amendment at the Committee Stage because, with due respect to the Law Commission, the hon. the Minister’s department and the people who framed the Bill, I think it is a messy Bill. I think it is very ambiguous.

It is a sexy Bill!

Yes, it is sexy too. Is it the hon. the Minister’s intention that this measure should deal only with the income

Why do you not leave this for the Committee Stage?

All right, I shall do so. I am going to move an amendment anyway, and I shall send it to the hon. the Minister for his consideration. I do not think this Bill conveys what he really meant it to convey.

There are just one or two other points I wish to make. As I said, there are all sorts of very important issues left untouched, by this measure. There are all the anomalies concerning women married in community of property, the guardianship of children, etc., which should have been included in one comprehensive measure which we could then have considered instead of this scruffy little one-clause Bill which really does not meet the requirements. There is, for instance, the question of the rights in respect of the joint assets that may have been built up in a marriage. The hon. member for Pretoria District referred to the case of a wife claiming against the estate of her husband. I want to put it to him that it is equally inequitable that, when a husband and wife jointly have built up a business and the husband goes on to become a reasonable prosperous man, the wife has no claim on any of the assets which they built up through their joint efforts. Take, for instance, the husband and wife running a little delicatessen shop, both working from morning to night. She would probable do the lion’s share of the work because she would have to prepare the articles they sell. When such a husband becomes wealthy, his wife has no claim whatever on the assets.

There is a lot to be said for marrying in community of property in those circumstances.

Yes, indeed! But then we must do away with the disabilities of marrying in community of property. The hon. member will admit that those disabilities are pretty fearsome as far as women are concerned. I refer to those ludicrous provisions in terms of which a woman cannot, for instance, enter into contracts or make hire purchase agreements. Granted she can open a banking account, but only with the utmost difficulty. She has to produce all sorts of documents. Even if she is married out of community of property and the marital power is not excluded, all sorts of problems arise when a woman wants to buy or sell shares or open a bank account. Such provisions are ludicrous in this day and age.

Therefore this Bill is a half-baked measure. It is full of ambiguities. Another major point I want to make is that I see endless litigation arising out of this measure. I know these questions only crop up when a marriage goes sour; that is true enough. When a marriage is going well, no problems crop up. However, if it goes sour, then indeed there is litigation. I think this law is embarrassingly vague. What guidelines is the court going to use in regard to the services rendered in the house? Are the normal services excluded which men expect their wives to render anyway? Are they extraneous to the normal so-called services which a wife is meant to render, such as being the nanny to the children, the cook, the hostess

But you ate the apple, not we.

… and all the other small and great services that the wife is meant to render? I do not know how any court is going to assess these services. It is going to be very difficult indeed.

As I have indicated, despite our objections, we shall support the Bill. I am glad, incidentally, that the Bill is not being made retrospective. If I am not mistaken, the law society recommended retrospectivity as far as this is concerned. I want to say at once that I am very glad that the hon. the Minister has not, in fact, accepted that recommendation of the law society. The Law Commission, of course, also turned it down. I am glad about that because I see endless cases otherwise arising out of this measure being made retrospective. I agree with the principle of the matter. I think that if one is a women’s libber and believes in equal rights for women, one must believe also in equal responsibility for women. Therefore the principle of pro rata contributions to the household is something I do agree with.

Are you a women’s libber?

Certainly I am a women’s libber, but that does not mean to say that I have to put up with impertinence from back benchers. As I have indicated, I think the Bill in its present form is messy and could be knocked into better shape. I was going to ask if the hon. the Minister would not consider sending it to a Select Committee after the Second Reading. [Interjections.] I therefore move as an amendment—

Mr. Speaker, I just want to give a short historical background to this section of the Act itself. This, I think, will be quite interesting, particularly to the hon. member for Houghton. In 1953, when the legislation was first brought before this House, the first proposal that was made to the House was based mainly on the common law prevailing at the time, this clause stating that, if a spouse paid any debt, the spouse—both husband and wife—would have the right of recourse against the other spouse for one-half of the amount that that spouse had paid.

The Bill was discussed in this House, amongst others by the hon. member for Houghton who, as she told us just now, made her maiden speech on that occasion. Whether it was due to the fact that she made her maiden speech on that occasion or not, I do not know, but the Bill when it came back from the Senate, had been amended. Instead of each spouse having the right to claim a half from the other spouse, the Bill was amended such that, if the wife paid any debt, she alone would have recourse against her husband for the full amount paid by her, not one-half of it.

Lucky girl!

Whether that was due to the influence of the maiden speech by the hon. member for Houghton, I doubt very much. Nevertheless, she has now seen the folly of her ways, and her whole happy house has come tumbling down about her ears.

[Inaudible.]

As the law stands today, if the Bill is not amended, the following can actually happen in practice. A wife contributes her income that she earns while the two spouses are living together, having been married in community of property. She contributes, for example, R150 per month of her income to common necessities for the household. Over a period of two years she would have contributed R3 600. If, for the next two years, she contributed R200 per month towards the necessities of the common household, it would mean that she would have contributed an additional R4 800, bringing the ultimate total to R8 400. Then perhaps having found somebody else more interesting, the wife decides to go on a spree. Resolving somehow or other to divorce her husband, she commits a misdemeanour. Her husband sues her for divorce. She then claims from him—and in terms of this law she can claim from him—R8 400.

So she goes to this poor, unfortunate, innocent male spouse and says to him: “Look, unless you grant me my terms in regard to this divorce I am going to claim R8 400 from you”. I now ask the hon. member for Houghton whether she believes in the rule of law, whether this is justifiable, whether this is right … [Interjections.]

Did you listen to my speech?

I believe the hon. member for Houghton has very long teeth when she says that she will agree with this particular amendment. [Interjections.] I also want to correct the hon. member for Houghton. The case of Engelbrecht, which was heard by Mr. Justice Vos, carried a recommendation from the judge to the effect that the words should be changed in the existing law so as to read: “Up to the full amount” instead of “for the full amount.” She is quite correct in that respect, but I ask her whether she thinks that amendment would be of any use whatsoever. I do not think she can agree. I believe she is quite right when she says this matter should be supported. However, I do not think it is necessary to refer the matter to a Select Committee. I think, in fact, the Law Commission acted in this matter with exemplary speed, because the case of Engelbrecht was heard, and the judgment delivered, in April 1974; and here we now have the Bill before the House, correcting something which is patently wrong in the existing law. [Interjections.]

Mr. Speaker, in the first place I merely want to indicate that despite the fact that there are ten male members of this House in this party, and only one female member, that female member supported this men’s liberation measure. So, for those who seek division, there is actually no division at all. What is quite interesting, however … [Interjections.]

The hon. member for Pretoria Central got carried away in an emotional storm of men’s liberation, and I wondered whether he was going to move an amendment to the title of this measure so as to change it from the Matrimonial Affairs Amendment Bill to the Men’s Liberation Amendment Bill. However, he did not quite know what to do with the “affair”. I think that is probably why he decided to drop it.

I think, however, that we need to look at this rather coolly and quietly, because what is sought here is quite clearly to bring about a measure of justice between the spouses. The hon. member for East London City was either deaf when the hon. member for Houghton spoke, or he decided he was not going to listen to her in any case, because what he alleged the hon. member for Houghton had indicated, was quite unrelated to the reality of what she had said. I think one needs to stick to the facts so as not to become confused, but I want to make two specific points in relation to the Bill.

Firstly, the hon. member for Houghton indicated that there was at least one amendment which was necessary. I think one should state now that that amendment relates to the fact—and I think this is wrong—that only the spouse’s assets which are being applied in respect of necessaries should be taken into account. I believe, however, that all the assets of a spouse should, in fact, be considered in that context.

If one refers to the report of the commission, one will see that it is mentioned on page 4 that the fact that a spouse has unproductive assets, is also a material factor. What worries me is that, even though the Bill contains the phrase that any other relevant fact may be taken into consideration, it is stated, in the same clause, that the assets of the spouse are being applied in respect of necessaries. I believe a court will interpret this restrictively, and will not allow assets, which are not being used for necessaries, to be taken into account. I think therefore that the amendment, which the hon. member for Houghton proposes to move, is necessary in order to see that justice is done. It is quite clear that one cannot have someone sitting there with million of rands’ worth of assets that are unproductive, the income from such assets not being used for household necessaries, without taking into account that the spouse who is paying may only have an income and no assets at all. So, quite clearly, assets as a whole should be a factor to be taken into account.

The other matter that causes some concern is what I see as an opening to litigation in the phrase: “or that a spouse is rendering service to the joint household for which moneys of the spouses would otherwise be applied”. Thank goodness, the word “moneys” is included here because, had that word not been included, one’s imagination might have run wild as to what services should be taken into account. Even the fact that the word “moneys” is being used, is to my mind likely to cause difficulty. I think one needs to try to have legislation that will cause as little litigation as possible. That is why, despite the fact that I agree with the principle of the Bill and consider the measure to be equitable, I believe, that a little bit of thought on the matter in a Select Committee might well produce a result which will reduce litigation. May I ask the simple question whether “rendering services to the joint household for which moneys … would otherwise have to be applied …” means that, if one were to have a driver to drive one’s children some distance to school and the wife undertakes to do this, it would be taken into account? I do not think so. Where is the line being draw? I do not think the line can be drawn with any degree of certainty and I believe that this is going to cause unnecessary litigation until a principle is established here and, more particularly, until we know into what category each particular service falls. That is why, in these circumstances, I support the request of the hon. member for Houghton that, while we agree with the principle of the Bill, we feel that a Select Committee, appointed after the Second Reading of the Bill, might render a very useful service in this regard.

Mr. Speaker, I rise to thank the hon. members on the other side for supporting the principle of the Bill and I want to indicate now that I will certainly look at the wording again. Any amendments that are offered to us we shall also look at very carefully. Naturally, we all want this Bill to cause as little litigation as possible. I want to tell the hon. member for Houghton that, despite the fact that she may look askance at me for saying this, I am always on the side of the ladies and not on the side of the men. The only reason why this Bill is before the House before the other related Bill, is that there are so many disabilities, as the hon. member knows, that that Bill of necessity must come a bit late. I can see that the hon. member is in a tremendous hurry to get the other Bill before the House and I will do my very best to get it before the House before she retires one day, which I sincerely hope is not in the near future. I want to assure her that I have no doubt that this Bill will be known as Helen’s Bill and I will see to it that it is introduced before she leaves the House.

*Mr. Speaker, I do not think much more needs to be said about this Bill at this stage. I want to thank hon. members for their contributions. I must honestly say that I do not believe that the wording is unintelligible; it must of course be interpreted by the courts. It will be interpreted when a case comes before the court and the interpretation will depend on the evidence. The judge will take cognizance of the pro rata principle laid down in the bill. This is the important principle; the others are in fact only indications of what may be taken into account. When the judge has that principle before him, how he is going to work out and apply the principle will depend on the evidence submitted to him. I do not think there is uncertainty in this regard, but because one does not, in any case, want any uncertainty in this regard, I am quite willing to look at the matter. As far as the Select Committee which the hon. member for Houghton proposes is concerned, I think it is entirely unnecessary. I, too, believe that this House has members capable of making a sound contribution, but I cannot concede that the Law Commission has erred here in any way. The report before the House is indicative of a high degree of learnedness and thorough consideration and I do not believe that the thoroughness with which this most learned gentlemen have approached the matter should be called into question in any way. Consequently, Mr. Speaker, I am of course unwilling to support such an amendment.

Motion agreed to.

Bill read a Second Time.

Mr. Speaker, I move—

In the first place, the aim of this Bill is to enable juristic persons to practise as attorneys, notaries and conveyancers, and in the second place to comply with a request by the Registrar of Banks that banking institutions and building societies be dealt with on the same basis in legislation.

On the recommendation of the Commission of Inquiry into the Companies Act, provision was made in that Act for private companies which, owing to the requirements with which they have to comply, can conveniently be utilized by professional people to enable them to practise as members of a company. In fact, stockbrokers and quantity surveyors have already been making use of this since they were granted the necessary authorization by law. In view of the advantages to its members which could accrue there from, the Association of Law Societies requested that such authorization also be granted to attorneys, notaries and conveyancers.

†Some of the advantages referred to by the Association of Law Societies, Mr. Speaker, are the following: (1) A partnership is an un-incorporated association of individuals and accordingly the property and rights of a partnership are vested in its members. On a change in its membership, assets must be transferred to the new partners. On the other hand, the property and rights of a company are vested in the company so that it is never necessary to transfer assets when there is a change of membership. (2) A partnership is automatically dissolved by the death or insolvency of a partner and, generally speaking, a partnership may be dissolved at any time by any partner. On the other hand, no individual member of a company may require it to be wound up nor is it wound up because of the disability of a member. (3) As self-employed persons, partners in a professional practice cannot become members of a pension or provident fund, which privilege is open to any member of their staff. If they are members and employees of a professional company, this unsatisfactory position will be remedied.

In the circumstances, it has been decided to support the views of the Association of Law Societies, and provision is made in clause 4 of the Bill now before the House for juristic persons to practise as attorneys, notaries and conveyancers. The provisions thereof are self-explanatory. Consequential amendments are contained in clauses 1(d), 2, 3, 5(d) and 6.

*Mr. Speaker, the registrar of Banks has pointed out that under the existing dispensation all banking institutions have to meet the same requirements. Consequently, there is no reason for preferential treatment of any institution. The same goes for building societies. Consequently it has been requested that all banking institutions and building societies be dealt with on the same basis in legislation. This request has already been complied with in respect of other acts, the Administration of Estates Act, for Example. In terms of this Bill the matter is now also rectified in the Admission of Attorneys, Notaries and Conveyancers Act of 1934. Clauses 1 and 5 are relevant in this regard.

Mr. Speaker, I am pleased to advise the hon. the Minister that the official Opposition will not oppose this Bill at the Second Reading. I believe the attorneys’ profession has been waiting for this Bill for some time now. The main effect of the Bill is, in fact to incorporate partnerships. I believe it is well known that attorneys generally practise in partnerships and the Bill will now allow them to incorporate themselves and to give them the form of a company. The Minister also re-defines institutions as the hon. the Minister has just mentioned, i.e. banking institutions and building society institutions, which, as he has said, brings such definitions into line with the Banks Act and the Building Societies Act. I believe that this was necessary so that it could be made quite clear to attorneys where they may place the moneys they are entitled to place when the moneys are considered to be trust moneys.

I believe, too, that we are all aware of the fact that there is a trend in this modern-day society of ours to incorporate. The medical profession has allowed its doctors to incorporate. I believe that stockbrokers also incorporate. This Bill, as far as the attorneys are concerned, is well due and should be passed here today. The Companies Act, as the hon. the Minister rightly stated, makes provision for such a form of partnership, a professional partnership. Section 53(b) of the Companies Act states that a company may be registered which has as one of its conditions that the past and present directors of the company shall be jointly and severally liable with the company for the debts and liabilities of the company during the periods of office of those directors.

Mr. Speaker, this incorporation trend is a world trend. In the United States of America it has been in operation for many years and I believe that it is operating in New Zealand too. It is a natural evolution which I do not believe will remove the traditional respect that the public have always held for legal firms; I believe that it will enhance the image of the attorneys’ profession because it will give to them a sense of continuity and enable them to continue in practice without the necessity for change taking place. The legal practitioners will find many benefits in this Bill, a few of which have been mentioned by the hon. the Minister. In the first place there will be no necessity for the transfer of immovable property when a new partner comes in or an old partner leaves. The second one is that it is important that an attorney’s partnership, if it is dissolved in any way by one partner leaving or another one coming in, will have to renegotiate any leases which have been entered into in relation to that partnership practice and properties which they may have leased. They will also have to draw up a new partnership agreement on each occasion that a partner leaves or joins the firm. Basically, speaking in terms of the common law, partners as between each other should agree unanimously on decisions to be taken in relation to their partnership, whereas now in terms of the incorporation the partners themselves, acting as shareholders, could vote in regard to issues. Then, too, there is the position that any one partner under common law can bind the partnership by an act of his own, whereas now in terms of the incorporation, once a partnership is incorporated, this aspect can be controlled by the shareholders themselves.

Finally, Mr. Speaker, on the death of any one partner the bank account is usually frozen, causing considerable difficulties for the remaining partners. The advantage to the general public is that there will be continuity of practice, which I believe will give to the public a sense of stability with regard to attorneys’ practices themselves. It will also build up confidence in those firms themselves.

I have one minor query, and that is with regard to the name of the company. In terms of clause 4, the new section 28quat(1)(c) reads as follows—

My query to the hon. the Minister is whether it would be possible for the firm to incorporate in its name some indication of the fact that they are in fact practising as an incorporated company. For instance, would they be entitled to use after the names of the partners, the word “proprietary” or the words “incorporated” or “corporation”? I believe that the general public should be informed of the fact that the partnership itself is an incorporated partnership.

We note also the amendment of section 33 of the principal Act regarding the appointment of a curator bonis in the event of an attorney ceasing to practise. This appears to have been something which was missing from the Act itself because the section that is being amended referred to an attorney who had been struck off the roll, who had been suspended from practice or who had been declared by a court of competent jurisdiction to be incapable of managing his own affairs, or who had abandoned his practice. It did not cover the case of an attorney “ceasing to practise”. Those are new words which are inserted. The rest of the words which are inserted are simply consequential upon the fact that there is a clause dealing with incorporation. I believe that this inclusion is well justified and that it is necessary.

Mr. Speaker, we have no objection to the Bill and we will support the Second Reading.

Mr. Speaker, we on these benches support this measure. We shall vote for the Second Reading. The major issue is of course the issue of incorporation. I believe that the traditions of the legal profession, particularly of attorneys, with whom we are dealing at the moment, are very important for the status of the profession. What is important, however, is that while one keeps the best from tradition it is necessary to keep up to date with modem developments. This measure does, I believe, keep up to date with modem developments. The advantages of incorporation have been touched upon by the hon. the Minister and have also been dealt with at somewhat greater length by the hon. member for East London City. I shall not repeat them. What of course is significant, is that neither of them referred to the somewhat touchy subject of tax. There is no doubt that, if correctly handled, there can be an advantage in respect of tax. I only hope that the hon. the Minister of Finance will not change the law in such a manner that there can no longer be any advantages from incorporation. There seems to be no reason why, if the advantage is available to people in other activities, the same sort of advantages should not be available to professional men. I also think that the concept of incorporation should in fact be made available to all the professions, as long as one accepts the fact that as a result of incorporation there should be no prejudice, firstly to the professional standard, secondly to the clients and thirdly to the public in general. These factors can be applied to attorneys and I do not see that there is any possibility of prejudice in these three fields. One can perhaps hope—and the hon. the Minister will perhaps think along the same lines—that the other half of the legal profession will be a little less conservative and apply its mind, in some respects, not just to incorporation, but even to such elementary things as partnership from which they have stayed away so long. I think that the day will come when that arm of the profession will also have to look in another way at this particular problem.

Dual practice?

The question of dual practice is a subject which we might debate on another occasion because, Mr. Speaker, you will rule me out of order if I seek to speak about dual practice under this Bill.

Come on Harry, take a chance.

I do not take chances like that hon. member.

I should like to touch upon a few of the technical provisions of this Bill. The hon. member for East London City asked whether it was permissible to have the words “incorporated” included in the name, because of the manner in which this particular provision has been drawn in the new section 28quat(1)(c). I should like to go a little further because I believe that in addition to drawing attention to the fact that the partnership is now incorporated and is a corporate body, there should be permission to use a limited number of words which could be specified in the statute, such as “and partners” or “and associates”, because there is nothing wrong with using those words. They will not constitute a form of advertising. They are allowed at present and I think that one should amend the Bill in order to allow that to take place. The question of incorporation might be dealt with in a different way in terms of the Companies Act.

The other matter I would like to draw the hon. the Minister’s attention to is the fact that I believe the memorandum and articles of a company should in every case be subject to the reasonable approval of the Law Society. I think there are standards which may have to be observed, for instance in relation to the method of conducting the practice. There is another matter which I think can cause trouble. I believe there has to be some provision for what is to take place if there should be a death or a dissolution. There must be a method of valuing the shares or there must be a necessity to liquidate the company in a particular way. I do not believe that one can leave this solely to partners who initially formed a company without the approval of the Law Society, because juniors who come into it will just have to accept it as it is or not come into it at all. I believe the articles in particular should be subject to the approval of the Law Society concerned.

The other matter I would like to touch upon is the question of what happens when somebody dies. In terms of the Bill as drafted, the present situation is that there is no voting right, but, also no participation in profits. If we compare this with other similar legislation, we will find that there is no voting right. This is absolutely correct; a person who is not qualified should have no say in the affairs of the practice. However, it does seem to me that a case can be made out that a widow and her children should at least in the six month period participate in the profits as is the case in other incorporations, for example the stockbrokers. I am not drawing an analogy with one or the other, but I think there is a case that in these sorts of circumstances the estate should at least be able to benefit from the profits during that period. In this Bill there is no provision for what is to happen if one does not come to terms in respect of the price at the end of the period. Here, again, it is perhaps important for the Law Society to approve the articles if the Bill is not to be amended, because I think there must either be a compulsory arbitration, or otherwise something else should happen in that period. All the Bill says at the moment is that one must cease to be a shareholder within six months. If they are not going to buy one out or they will not do anything else and the parties cannot come to terms, there must be some way of resolving this kind of deadlock.

I have raised these matters merely because I think they need to be dealt with. From the profession’s point of view, it is important that they should be ventilated. However, the principle of the Bill is one which we support. This also applies to the other provisions of the Bill to which the hon. member for East London City has already referred, and I do not think that it is necessary in these circumstances to repeat it.

Mr. Speaker, the hon. member for Yeoville raised two matters with which I do not agree. I feel that perhaps he has not scrutinized the legislation which is before us at present with sufficient care. His request that the memorandum of association and articles of association should be scrutinized by the law societies would, in my opinion, give rise to an extension of the powers of the law societies which, at the moment, they do not have. At present it is not required that they inspect the partnership agreement of a partnership in order to ascertain its contents and approve of it. To concede to this request now would, in my opinion, result in our granting them the power to acquire a say in the mutual relationship of the partners which is not essential and which would involve an extension of their existing powers. The legislation is calculated to ensure that while professional companies are allowed at the same time the clients and the public will in no way be prejudiced. In so far as the mutual relationship between partners is concerned or, in the case, say, of the mutual relationship between shareholders in the case of a professional company, this cannot prejudice the clients of the firm or of the professional company.

In the second place, the hon. member pleaded that the heir of an attorney who was a member of a professional company which may be established under this Bill, should continue to share in the profits for a limited period after the death of such a partner. In my opinion this would introduce a new principle into the Act which deviates from current practice with regard to partnerships and which could call into question the professionalism of the profession of attorney. The attorneys’ profession, like any other profession, insists that only people who measure up to the academic and other standards set should be permitted to become a member or, as employers, should be able to derive benefit from such a firm. I am therefore of the opinion that this would introduce a new principle which would clash with current practice and I doubt whether there is a need for this in the attorneys’ profession. I believe that in general, when a person dies, or retires due to age, partnership agreements and also the memorandum of association and articles of association of these professional companies provide adequately, in one way or another, for the care of his family, whether by the paying out of goodwill or the paying out of his interests. In one way or another there is a joint agreement which provides for the heir of such an attorney who dies.

I do not want to repeat the benefits which have already been mentioned. In my opinion it is of cardinal importance to stress that nothing in this Bill detracts from or alters the protection enjoyed by the public and clients of attorneys. That is why it is important to state clearly that the accountability of an attorney towards his client is not affected by this and that, other than in the case of ordinary companies, he will be jointly and severally accountable with the company which may be formed.

In conclusion, the hon. member for Yeoville raised the issue of income tax. I think it is necessary to say that any income tax benefits which may derive from this will be limited and that consequently this is not a factor of very great importance. However, I also feel that it would be in the interests of the promotion of productivity and the campaign for thrift if a formula was in fact found which would ensure that the companies formed in terms of this Bill were also dealt with as ordinary companies for taxation purposes. With these few words, then, I too wish to welcome the Bill from this side of the House and thank the hon. the Minister for having given effect to the request made by the Law Societies.

Mr. Speaker, I want to express my appreciation for the almost overwhelming unanimity prevailing in the House as regards this legislation. It is in fact in everyone’s interest that legislation of this kind relating to the profession of attorney be passed. As far as I am concerned, very positive ideas have been advanced this afternoon which will undoubtedly be given consideration before the Committee Stage. Thank you very much for the support.

Motion agreed to.

Bill read a Second Time.

Mr. Speaker, I move—

As hon. members know, the butter industry has since 1951 been afforded complete protection against competition from yellow margarine. However, the total prohibition on the manufacture of yellow margarine was lifted in 1971, but the manufacture of margarine was still made subject to permit control in any case. Owing to increasing consumer demand, margarine manufacturers have made repeated applications for an increase in their quotas. Owing to the implications inherent in this to the dairy industry, these applications were without exception submitted to the Dairy Board for its recommendations.

The total quota for yellow margarine was therefore increased with the knowledge of the Dairy Board so that it amounts at present to 74 000 metric tons. According to the figures which margarine manufacturers make available to my Department of Agricultural Economics and Marketing, it would appear that the production and sales of yellow margarine have now stabilized at approximately 5 000 metric tons per month, and it would also appear that the manufacturers only manufacture as much as it is possible to find a market for. Therefore there is no longer any justification for continuing to apply the permit system. But the system of permit control cannot be discontinued without effecting amendments to the Dairy Industry Act, 1961.

This Bill, therefore, seeks to amend the Dairy Industry Act, 1961, so that permit control will now be done away with. Since problems may arise under the proposed new dispensation which cannot be foreseen at present, it is being deemed necessary for the State President to be vested with the power to reintroduce permit control by way of proclamation in the Gazette, if this should subsequently become necessary.

As the hon. members know, yellow margarine may only be manufactured from vegetable oils, and consequently this is stated as a condition when permits are issued. Since permit control is now being lifted, and it is considered essential that margarine should still be manufactured from vegetable oils, the Bill is in addition providing that this requirement may be included in the regulations which are made in terms of the Act.

In conclusion I could just mention that both the Dairy Board and the South African Agricultural Union were consulted and agreed to all the proposed amendments.

Mr. Speaker, this side of the House is not going to oppose this Bill either. I want to remind the hon. the Minister that in 1971, when this side of the House gave its consent to the manufacture of yellow margarine because there was a need for it, it was at the same time necessary for us to point out certain dangers. The hon. gentleman said that it is now necessary to do away with the permit system. That is correct, but there is still going to be complete control over the manufacture of margarine. Consequently I think it is no more than right that I point out to the hon. Minister that, as a result of the manufacture of margarine, we had the situation that the butter production in South Africa showed a tremendous surplus. As a result of this 17 butter factories have recently closed down in South Africa. I cannot see how this bodes any good for the future of the dairy industry. I want to urge the hon. the Minister to watch the situation very carefully, for it is increasingly becoming the object today to persuade farmers to go in for industrial milk and fresh milk production.

In the meantime the cream producers in South Africa are diminishing steadily. There are large areas of the country in which farmers cannot go in for the production of fresh milk or industrial milk. I am referring now to the extensive parts of the country. Up to now they have also been excellent butter and cream producers. What is the hon. the Minister’s reply to the situation if there is no future for these people? Once again I can foresee in future that, since we now see that cream producers are diminishing in number, we are again going to find the situation in the country that these people are going to be required. One does not want an imbalance between the manufacture of yellow margarine on the one hand and the butter and cream producers being completely pushed out of production on the other. Therefore I hope that the form of control which is still going to be present will take thorough cognizance of the position as it obtains outside, and that we will not have an imbalance so that there would subsequently be no production and distribution of natural butter in South Africa.

Mr. Speaker, the hon. the Minister made the amendments in this Bill very clear. The hon. member for Newton Park pointed out certain dangers which may arise as far as the butter farmers are concerned. To a certain extent I want to agree with the hon. member, but I want to tell him that I think margarine has, up to this stage, already proved that its existence is justified. I think the quota for margarine has already reached its maximum. I cannot see how there can in any way be a danger to the butter industry in our country in that we are allowing margarine to be sold on our markets. I am convinced that these amendments constitute absolutely no danger to the dairy industry, nor to the margarine industry. We have introduced the provision in the legislation that the State President has the power to reintroduce permit control at any time he deems fit, or where any danger exists that the butter industry is being threatened. Therefore I feel that these amendments in the legislation are entirely justified, and I associate myself wholeheartedly with them.

Mr. Speaker, we on this side of the House support the Second Reading of the Bill.

Mr. Speaker, I want to thank hon. members for their support. The hon. member for Newton Park made it very clear that there were dangers, but I do not know what the hon. member meant by “dangers”. However, the butter surplus will remain with us just as long as we have industrial dairy products. I am thinking for example of the production of skimmed milk from the industrial sector, and the production of cheese from the industrial sector. I think I can say quite candidly today that there is a far greater source of cream than was the case with cream farmers in the past. In other words, there is far more cream from the industrial sector than there was from the source of the old, ordinary and traditional, cream farmer. We have every sympathy with these cream farmers, but if we do away with the permit system now surely it does not mean that these people will not have a market. The factories are not being closed down simply because we would like to do so, but because they have become obsolete. It is simply no longer economic to keep them in operation. This is why the factories have gradually been closing down. After all, we did have to help them so that they did not suffer very great losses. He is afraid there will be an imbalance, but I do not know why there need be a conflict over this matter. Margarine has proved itself to be a very good spread. In fact, the consumer is asking for it. Because margarine is also an agricultural product I can see no need for a conflict between these two products. The dairy industry also accepts it as such. I want to give the hon. member the assurance that if problems should arise we will, as in the past, most certainly help this industry, which finds itself in difficulties, in a very rational manner.

I also want to thank the hon. member for Ladybrand for the sterling contribution which he made here as an authority on this industry. I believe that we are on the right road, and that is why we have the support of everyone, even of the little party which calls itself “these benches”.

Motion agreed to.

Bill read a Second Time.

Mr. Speaker, I move—

Agreed to.