Mr. Chairman, I do not believe that at this stage there is anything further to be said in connection with the clause which is under discussion. We have moved our amendments to this clause and we have motivated those amendments, and as far as we are concerned, we are now ready to vote on those amendments.

Mr. Chairman, may I ask the hon. the Minister whether he intends to respond to the alternative amendment which I suggested to him privately in respect of this clause? It was designed to meet the objections he had to the amendment in its original form.

Mr. Chairman, we have already discussed this clause at great length. The hon. member for Durban Point has handed a further amendment to me, and I have given it my consideration.

As I have already said before, I should very much have liked to have accepted an amendment from the hon. member for Durban Point in this regard, due to the very positive …

Order! What amendment is the hon. the Minister discussing now? Is it an amendment over and above the printed amendment that has already been moved by the hon. member for Durban Point?

Mr. Chairman, it is a draft amendment that has not been moved, but which I did in fact discuss with the hon. the Minister.

Mr. Chairman, because of the positive attitude that the hon. member for Durban Point and his party displayed with regard to this legislation—an attitude for which I have a very high regard—I have given my serious consideration to the amendment that he handed to me. However, unfortunately it will eliminate only a very small part of the problem. I am aware of the fact that the biggest problem in the hon. member’s amendment is that the automatic Hen, which has been in existence for years and which is meant chiefly for co-operatives, is being taken away or watered down. The amendment will also result in a tremendous administrative burden being placed on the shoulders of the co-operatives.

I now want to address a friendly request to the hon. member for Durban Point. I want to say that he must be patient and wait so that we can first see how the provisions of this proposed clause work out in practice. If problems are experienced, I give the undertaking to the hon. member that I shall come back to this House again in order to rectify the matter. Since we have now made fairly fundamental amendments to the principal Act, I do not think that we should complicate this matter further now. I believe that we should first give the amended legislation a chance in practice. Then, if problems do arise, I shall come back to this House with it again next year.

Vause, do not be a square. Do not interfere with the farmers.

I am not interfering with the farmers. They approached me regarding this matter.

Order!

Amendments moved by Mr. D. J. N. Malcomess negatived (Official Opposition dissenting).

Amendments moved by Mr. W. V. Raw negatived (New Republic Party dissenting).

Amendment moved by the Minister of Agriculture and Fisheries agreed to.

Clause, as amended, agreed to.

Clause 241:

Mr. Chairman, I move—

In clause 241(3) provision is made for the obligatory single channel co-operative marketing arrangements which were introduced in terms of the existing Act in certain areas for lucerne hay, cotton, tobacco and ostrich products, to continue to be in force despite the repeal of the existing Act. However, the clause also provides for the obligatory single channel marketing arrangements to be amended or repealed. The need for such a provision is obvious. However, there is also a proviso in the clause which subjects the Minister’s power to amend or withdraw such regulations to the approval of the cooperative concerned, which means in effect that the Minister cannot actually make his own decisions, but is dependent upon the approval of the co-operative concerned. If it should happen that a co-operative were to carry out its powers in terms of obligatory co-operative marketing regulations in an unsatisfactory fashion, obviously the Minister must be able to intervene, without the agreement of the co-operative. Therefore I move that the proviso be deleted. The deletion of subsection 3(c) is related to this.

Amendment agreed to.

Clause, as amended, agreed to.

House Resumed:

Bill reported with amendments.

Mr. Chairman, there is an amendment printed in my name on the Order Paper. This amendment has been ruled out of order, therefore I shall not move it. However, we on this side of the House oppose this schedule for the same reasons that we opposed clause 1 of the Bill. We shall therefore vote against it.

Schedule put and Committee divided:

Order! Before commencement of the discussion of schedule B, I just want to point out that this schedule is introduced by clause 6, in the discussion of which all the aspects of the principle involved were dealt with in full. I shall therefore apply the provisions of Standing Order No. 63 very strictly and shall only allow the particulars relating to the schedule to be discussed.

Mr. Chairman, I move the amendments printed in the name of the hon. member for Cape Town Gardens on the Order Paper, as follows—

1. (1) On page 4, in paragraph (b), to omit “or outside”;
2. (2) on page 4, to omit paragraph (d);
3. (3) on page 4, to omit paragraph (e).

I should now like to motivate those amendments, starting with the effect of the first amendment. Schedule B(b) reads—

The intention of this provision is quite clearly to get every single person, whether he was born inside or outside Ciskei, enmeshed in Ciskeian citizenship, whether he wishes to be a citizen of Ciskei or not. The effect of the amendment proposed would be that those persons born outside Ciskei would not, as a result of this Bill being passed, become citizens of Ciskei. The difference between what is proposed in schedule B(b) and what is proposed in this amendment is very clear indeed. We are fully aware that there are 1,4 million Ciskeians who actually live outside Ciskei.

Order! That point was made in the discussion of clause 6.

I appreciate that that point was made in the discussion of clause 6, but at the same time, in talking to schedule B, I believe that I should be able to motivate my amendment.

Quite right.

In motivating that amendment, of course, inevitably there will be some points raised that were also raised in the discussion of clause 6. I also want to point out that in our amendments to clause 6 we did not deal with the aspect of place of birth in relation to citizenship at all.

Now you are talking nonsense. You talked about it the whole time.

We did not bring that up at all, specifically so that we could, in fact, bring the subject up in the discussion on schedule B. So whether one is born inside or outside …

Order! I want to point out to the hon. member that the matter of birth was fully canvassed during the discussion of clause 6. I shall therefore not allow him to repeat that argument.

Mr. Chairman, does not a different set of circumstances apply in the sense that the hon. member is now re-discussing the principle? There is an amendment to the schedule and the hon. member is motivating the amendment. How can the Committee agree to the amendment if it is not properly motivated?

Order! According to the Standing Orders, only the particulars of a clause may be discussed during the Committee Stage. The exception which I have allowed and have allowed very extensively under clause 6 is to allow one member of each Opposition party and the hon. the Minister to discuss the principle. Therefore I have ruled that only the particulars of the schedules and the amendments may be discussed in this particular case. No argument which has anything to do with the principle should be raised.

Mr. Chairman, may I address you again? The hon. member is discussing the effect of the amendment which he is proposing. He is motivating it and is stating the reason for the amendment and what the implications are. He is not discussing the principle. He is merely motivating the amendment. With respect, if the amendment is in order, I submit that the argument is also in order.

The hon. member for Port Elizabeth Central may proceed. I shall listen to him.

Very well, Sir. What I was saying was that the amendment which I am proposing and which deals with people born outside Ciskei, could have an effect on 1,4 million Ciskeians who live outside Ciskei. That is a fact, and I do not think anyone can deny it. The hon. the Minister has repeatedly said that the birthright of the Ciskeian people is being forwarded in this clause. I want to ask the hon. the Minister: Is it not the birthright of people born in South Africa that they should be entitled to have citizenship of the land of their birth? Is this not in fact the case? Is it not the birthright of those who were born in Guguletu, Langa, Soweto, Duncan Village or wherever, that is being abused by this particular provision? Is their birthright to be South Africans not being abused? As far as the hon. the Minister himself is concerned, what would his feelings be if as a South African born and bred his birthright to be a South African was taken away from him by a Government in which he had no representation whatsoever?

I want to come to the next aspect of the schedule, and that is that if the whole schedule B were to be passed in its entirety as it stands now, the effect will ultimately be that there will be not one Black citizen of South Africa once all the homelands have taken their independence. Is that so? Does the hon. the Minister agree that the sort of onerous clause included in all the Status Bills, and this one in particular, is going to result in a situation where ultimately, if every Black homeland takes independence, there will be no Black citizens in the RSA?

Order! I have allowed the hon. member to motivate the amendment, but at the moment he is crossing swords with the hon. the Minister. That has nothing to do with the hon. member’s amendment.

Mr. Chairman, what I am trying to do is to spell out the difference between what will happen in the event of the schedule being passed as it is, and the schedule being passed as I wish to amend it. In motivating any amendment it is an integral part of that motivation to compare what will happen if the schedule is passed in its original form …

Order! I have allowed the hon. member to motivate his amendment but he must not make use of this opportunity to discuss certain principles. He can either discuss the amendments or the schedule as such but within the ambit of my ruling.

Very well, Sir. The final point I wish to make relative to the question of having been born in or outside of Ciskei is the fact that in the event of my amendment not being accepted, the policy of the hon. the Minister, the Cabinet and that party as spelt out in column 579 of Hansard 1978 by the then Minister of Bantu Administration and Development, Dr. Connie Mulder, will be borne out. That is that the whole idea behind this particular schedule is to ensure ultimately that there are no Black citizens. Dr. Connie Mulder had this to say—

I did not notice at the time these words were spoken that any hon. member of that party disagreed with the Minister at that stage.

Order! I must warn the hon. member that if he continues in that vein I shall have to ask him to resume his seat.

Very well, Sir. So much for the first amendment in the name of Mr. Andrew.

My second and third amendments are to omit respectively paragraphs (d) and (e) of schedule B. Paragraph (d) states—

How wide can one possibly cast one’s net? This is a sort of all-embracing clause. What it says basically is that if one speaks Xhosa and one is not a Transkeian then one has per se to be a Ciskeian. If we were to say to the hon. the Minister that although his home language is Afrikaans, it is derived from Dutch and that therefore that makes him a citizen of Holland, would he agree? Of course he would not! [Interjections.] Would the hon. the Minister like to be forced to be a citizen of Holland? I must say, Sir, that this particular paragraph relating to the use of Xhosa as a language will suck people into the net that this Government is casting, descendants of people who moved out of Ciskei in the early days of the last century. As I have pointed out before, there are people who were granted land in areas such as Humansdorp. They were given land by a grateful Governor in those days. Because those people speak Xhosa they have been included in Ciskei.

Then, just in case one very tiny fish may have escaped the net cast by this Government we have paragraph (e) which I am also moving to omit. This paragraph states that—

will also become a citizen of Ciskei. This provision is there, Sir, to catch the last few pathetic little fish that may just have escaped this net. Can one believe, Sir, that simply a relationship is sufficient? One wonders whether such relationship can be transposed to being a relationship by marriage. I wish to put this question pertinently to the hon. the Minister. If a person married a Xhosa or is related to a person who marries a Xhosa, does such a person automatically become a citizen of Ciskei? I want to ask the hon. the Minister whether this is the “volkswil” which he is so fond of talking about. Is this that wonderful thing that he keeps talking about in this House?

Order! The question of the “volkswil” was dealt with exhaustively by hon. members of the Opposition during the discussion of clause 6. I do not think it has anything to do with the dotting of the i’s and the crossing of the t’s in this schedule or with the amendments moved by the hon. member.

Mr. Chairman, I apologize. I admit that I got carried away by my own velocity. [Interjections.]

Order!

I think the logic of paragraph (e), the omission of which we seek, is very clear. That logic is that we have to gather in every single last Black who speaks Xhosa or who is related to anybody who speaks Xhosa or who is culturally identified with the Xhosa people. [Time expired.]

Mr. Chairman, we on these benches are going to support the amendments despite our efforts to convince the Government to accept our point of view relating to citizenship. Despite the fact that as sure as night and day follow one another this will not be the last legislation regarding the citizenship rights of the Ciskeian Xhosa-speaking people who are South Africans, the Government fails to heed our warnings. Accordingly we shall support the amendments.

Mr. Chairman, I rise to support the amendments which have been moved by the hon. member for Port Elizabeth Central. If these three exemptions from the existing schedule are not agreed to, it means that thousands upon thousands of people who object to the deprivation of South African citizenship are going to be affected, and they are by and large the people who did not participate in any referendum on the subject. As we have already pointed out, the vast majority of people did not, in fact, participate in that referendum.

In terms of the hon. member’s amendments schedule B will be left with paragraph (a) which states—

I think this paragraph is at least limiting it to those people who already have Ciskeian citizenship and it will include those persons who have been lawfully domiciled in Ciskei for a period of at least five years which is a normal period of domicile after which people would be allowed to claim citizenship of the country in which they are living.

We are against the principle in this Bill of Ciskei independence, as we have stated during the Second Reading debate, but the schedule, as amended, will at least limit the acquisition of Ciskei citizenship to those who are presently entitled to have it. We believe that if this Bill is to have a less harmful effect than we believe it is going to have in its present state, the Government would be wise to accept the amendments which the hon. member has moved.

I want to stress again that I do not think that a single hon. member on that side, from the hon. the Prime Minister down, has any knowledge whatsoever of the extreme bitterness that has been caused by other Status legislation which this House has passed in other years and which has resulted in the deprivation of the citizenship of the people who are linked in the most informal manner to those territories and who have never set foot possibly in the territories of Transkei, Bophuthatswana and Venda.

Notwithstanding the fact that we have had a Government commission reminding us that one of the causes of the Soweto riots and the riots in the other Black townships was the deprivation of citizenship when the Transkei Status Act was passed in 1976, the Government is recklessly coming along today and doing exactly the same thing. The hon. member for Port Elizabeth Central is attempting now to minimize, the damage which we believe is going to be caused to race relations in South Africa by the passing of this Bill. At this late moment I ask the hon. the Minister to consider accepting the amendments moved by the hon. member for Port Elizabeth Central.

Mr. Chairman, I associate myself with the first amendment of my colleague, but I should like to say something about his second and third amendments in so far as it concerns concrete problems that those amendments cause me. I think the hon. the Minister knows that until fairly recently there was a great deal of confusion about the question of who was a citizen of the Transkei and who was a citizen of the Ciskei. We experienced a great deal of trouble in this regard, for instance where people applied for passports. The department that was responsible for issuing passports, also experienced a great deal of confusion and lack of clarity. Paragraphs (d) and (e) of schedule B, which my hon. colleague wants to be amended, were largely responsible for this confusion. In fact it will aggravate the confusion further. That confusion emanates from the fact that the Transkei was the first area to receive full-fledged self-government. If one looks at the definition of “citizenship” contained in the constitution of the Transkei of 1963 …

Order! I think the hon. member is going completely beyond the limits of the schedule. Yesterday he used the word “stateless” in his speech. Now he is using the word “passports”, but he is repeating the same arguments.

No, Sir.

Order! The hon. member is also talking about Transkei whilst we are now dealing with a schedule relating to Ciskei. I said that I would permit a discussion of the details only, and hon. members must please abide by this.

Mr. Chairman, may I address you on this?

Order!

No. However, the hon. member may proceed if he abides by my ruling.

Mr. Chairman, let me explain. As far as I am concerned, the issue is those two paragraphs which mention the people who use the same language. The language used by the majority of the people in the Ciskei, is Xhosa, and the confusion that arises—and this is all that I am trying to explain and want to ask you to allow me to state my case—is that that criterion applies for citizenship of the Transkei as well. I cannot discuss my problem without referring to the definition of that word in the Constitution of the Transkei. The confusion that arises is that we have two independent States with regard to which the definition of citizenship, as set out in those two paragraphs, is exactly the same. Therefore I cannot discuss the problem with regard to the Ciskei if I cannot refer to the background. Let me put it to you briefly, Sir, that the Constitution of the Transkei of 1963 provides that all persons who are Xhosa-speaking or who are related to Xhosa-speaking people in terms of the second paragraph, are citizens of the Transkei. Therefore, there is no differentiation with regard to Xhosa-speaking people who were resident outside the Transkei, for instance in the Ciskei. All Xhosa-speaking people are viewed as citizens of the Transkei in terms of the legislation of 1963. When the Transkei became independent in 1976, that definition of citizenship was transferred exactly as it stood to the citizenship of the Transkei. In the measure of 1976 …

Order! The hon. member has now used the words “in other words” three times already. Therefore, he is repeating himself because each time he repeats his argument by explaining what he means.

Even with the same gestures.

I want to contend that the definition as set out in the legislation of 1963 was repeated in the legislation of 1976. Therefore we find once again here that reference is being made in these two paragraphs to people who speak the same language as the people of the Ciskei, whilst in fact both the people of the Ciskei and other people speak Xhosa.

Order! The hon. member has already made that point.

It creates confusion and a lack of clarity, and therefore I shall support the amendments.

Mr. Chairman, in reply to the hon. member for Port Elizabeth Central, the hon. member Prof. Olivier and the hon. member for Houghton, I just want to state two cardinal points. The first one is that, as matters developed, there may be no confusion from a legal viewpoint nor did any confusion exist as to which Xhosas were citizens of the Transkei and which were citizens of the Ciskei. It is being done chronologically. The position is simply that when the Transkei became independent, it was determined who would be citizens of the Transkei. On 4 December, all being well, the Ciskei becomes independent and this Bill provides who will be citizens of the Ciskei. Hon. members can therefore accept my word that this is really the position and that no confusion will arise.

Allow me just to go into the matter a little further. I have prepared myself well with regard to this entire matter and have given it a great deal of thought. If one thinks of the fact that there are more than 20 million Black people in ten Black nations in the country, one realizes how well citizenship has been regulated in the country to date, since three States have already accepted independence and there is also citizenship with regard to all the other self-governing States. We are making a special achievement in this country. And do you know why this is being achieved, Sir? It is being achieved because of the fact that there are people who know the Black people very well, have dedicated their lives to them and together with the Black people have given special attention to these matters, over a period of many years.

The second point that I want to make, is that we in Parliament have made legal provision all along for there to be no stateless people in South Africa. This is a very fine achievement. Why can there not be stateless people? The reason is that coinciding with the loss of citizenship, people obtain other citizenship or are put in a position to obtain other citizenship.

They do not want it.

The hon. member for Houghton has been asking here over the past few weeks how many of the people of the Transkei, Bophuthatswana and Venda have obtained other citizenship in the interim. I gave her the figures. In the case of the Transkei, for instance, it was 1 675. As hon. members know, with regard to the Transkei, a board has been nominated to investigate any matters about which doubt exists, and to settle them. Now we are doing exactly the same with the Ciskei.

Hon. members may differ on this, but I am stating it according to the experience that I have had over 30 years, that with regard to citizenship in this country something special is being achieved between White and Black, for which we must be grateful. Then it is tragic that due to certain things that are said by the hon. Opposition in this Parliament in South Africa, the outside world has a completely distorted image of this matter. Since we were arguing about the question of citizenship at a very high level last night, I am not going to cover that same ground again now. I therefore hope that the hon. members accept the conclusion which I have reached after having discussed this matter very thoroughly. If I had had the time, we could have gone into the details and I would have been able to prove my views beyond any doubt.

Finally I want to say something in connection with the amendment that has been moved on behalf of the hon. member for Cape Town Gardens. In view of our earlier arguments, the amendment is unfortunately not acceptable to us. In that respect too I am not going to repeat all the arguments as to why it is not acceptable again now. What is actually the implication of the three legs of the amendment that the hon.’ member for Port Elizabeth Central moved here? In the first place an attempt is being made by means of the amendment to make only those people who were born in the Ciskei, citizens of that country, whilst the rest of the population is excluded from citizenship. We do not find this acceptable.

I do not want to play around with numbers again now. We have already repeated several times here that more voters outside the Ciskei registered for the referendum than was the case within the Ciskei itself. In doing so those people proved that they want to be citizens of the Ciskei, and that not only do they want to be citizens of the Ciskei, but that they also exercised their right by participating in the referendum.

Why then do you not give them a choice?

The second leg of the hon. member’s amendment will amount to the language qualification for citizenship being dropped. We do not find this acceptable either. Language is a very important criterion, not only amongst the Black people, but in all nations. We are very strongly convinced of the fact that should we drop this specific language provision, as is being requested in the amendment, we would be depriving what we have built up with so much trouble, over so many years with regard to this extremely delicate matter of citizenship, of one of its most important cornerstones. Hon. members must please accept my word for it now that it would create a tremendous amount of confusion amongst thousands of Black people if we were to do so.

The hon. the Minister of Education and Training deals with schools. He can testify to the high premium that the Black peoples in this country place on their language. They place a tremendously high premium on their language. [Interjections.] Now hon. members of the official Opposition are arguing that it should be taken away from them. We do not see our way clear to do so.

The last leg of the amendment that the hon. member for Port Elizabeth Central moved, amounts to kinship and cultural qualifications with regard to citizenship being dropped. Very well, I could wax lyrical here and I would be able to occupy hon. members’ attention in a very interesting way with an account of the decisive and cardinal role that kinship plays in the fife of every Black nation throughout Africa. After all, hon. members should know how important kinship is.

Then give them the choice.

Now the hon. member is moving that kinship should be dropped. If we were to do so, we would once again be removing one of the cornerstones by means of which we have been put in a position and are in a position to make a wonderful achievement in South Africa. It is an achievement that has been made jointly by White and Black in South Africa. We really do not see our way clear to doing so in this way, which has been proposed.

As far as culture is concerned, we settled the matter finally with one another here yesterday. I said here yesterday what a premium Black leaders and people outside the national States place on their culture. All that we are doing in this case, is to confirm that we recognize these things that we know from experience are of cardinal importance to the Black people.

In conclusion I want to thank the hon. members who participated in the debate for their contributions. It was a debate that had occasional highlights. I am grateful that the debate has been conducted in a very responsible fashion in general. Nevertheless I want to emphasize one very important point once again. It is the fact that in terms of the legislation under discussion, no existing rights are being taken away from any Black person. This is the truth. We are taking positive action here. If hon. members want to see the positive side of this, they will realize that we are giving people things that they consider fine, that are important to them and that are dear to them. In essence no single existing right—and I emphasize “existing right”—is being taken away from any single Black man in South Africa. The whole argument of the Opposition—and I say this with the greatest of respect—is based on a situation in vacuo. This is what we are objecting to and this is why unfortunately I cannot accept this amendment either.

Mr. Chairman, the hon. the Minister is either a consummate actor or he actually believes the nonsense that he has been trying to put across. He certainly gives every impression of being deeply convinced of what he is saying.

I am speaking the truth.

It is either that or he is a consummate actor. I cannot understand how a man of any intelligence could believe the things the hon. the Minister has just told us. I shall tell hon. members why I say that. The hon. the Minister carries on about the amendment that the hon. member for Port Elizabeth Central has moved and about how we have no understanding or respect for the deep love and longing that the Black man has for his language, his culture, etc. What the hon. the Minister forgets is that we have had three previous Status Bills which forcibly turned Black people into citizens of the countries of origin, no matter how remote that origin happened to be. We are now going down for the fourth time. It is not as if this is our first experience. I ask the hon. the Minister: If that were the case and every Black man was indeed yearning for his language and culture and to be relinked with his homeland via citizenship, why was there not an enormous queue of people after the Transkei, Bophuthatswana and Venda Bills were passed, people queueing up for these certificates of citizenship? There was no such thing. I have put questions here in the House on this matter and found that very few of the Blacks living in the urban areas queued up for these “famous” certificates of citizenship. They did it only when they were forced to do so. They were forced to do so—and it is no good the hon. the Minister shaking his head—because they could not get housing without those certificates. They could not register the births of their children without those certificates. Their children could not take out reference books when they turned 16 without those certificates. That is when they were stateless people, when they had to fall in with the Government’s measures of taking out these various citizenship certificates. There was no voluntary accession of citizenship in the case of those three other countries. If the hon. the Minister really believes what he says, and he appears to, why did he not accept amendments moved by hon. members on this side of the House, amendments which gave the option of citizenship? We have moved amendments in the Committee stage whereby the Ciskeian people, linked remotely by language or culture or because one parent or grandparent had been born in Ciskei, were given the option of taking out Ciskeian citizenship. But the hon. the Minister says that they love it so much that he has got to force it down their throats. That is, of course, exactly what he has done.

The hon. the Minister also had the impertinence to quote here this afternoon the 1 675 Transkeians who applied via Ciskei to regain their South African nationality since the amendment was passed to the Black Homelands Citizenship Act in 1978. I want to point out that that Act was originally passed in 1970.

Order! I really cannot see how this is relevant to schedule B.

Because the hon. the Minister raised that as proof that people were clamouring to get back to their own territory. The 1970 Act deprived those unfortunate Transkeians of their South African citizenship; in fact, it so deprived every Black man who then became a citizen of his ethnic country of origin, but he retained South African nationality, as long as that country was not yet independent. The amendment in the 1978 Act allowed Black people to regain their South African nationality by applying to a non-independent homeland to admit them as citizens, providing that that homeland agreed to it, had not yet taken its independence and providing Pretoria agreed as well. Of all the millions of Blacks that we have in this country, 1 675 applied to regain their nationality through this devious side-door, this strange procedure whereby they could regain their nationality. When we talk about citizenship in this Bill we are of course quite wrong. Blacks all lost their South African citizenship in 1970, and this has been a burning grievance ever since. However, what they did retain as long as they did not belong, however remotely, to Transkei, that took independence in 1976, to Bophuthatswana, that took independence in 1977 or to Venda, that took independence in 1979, was their South African nationality. Then they lost it, and the same applies to Ciskei. They all, in fact, lost their citizenship but they retained their nationality.

What about the convention?

I cannot talk about the convention now, but I promise the hon. the Minister that I shall discuss the convention in detail during the Third Reading.

Mr. Chairman, the hon. the Minister has orated with great fervour and with some conviction in his reply to the amendment that I have proposed. However, he did not answer any questions. Not one of the questions that I put to the hon. the Minister was answered. For instance, a question that remains unanswered—and I should very much like to have an answer to this question—is whether, after all 10 homelands have become independent, there will be any Black citizens left in South Africa. If the type of clause contained in schedule B are included in all the independence Bills, will there be any Black citizens left in South Africa? The hon. the Minister has not replied to that question.

Those questions were canvassed during the Second Reading.

Very well, Sir, I shall not repeat the questions, but I want to say that the hon. the Minister has not answered them, and I do not know how many times they have been asked. None of them have been answered at all. As the hon. member for Houghton said, we are well aware that 1 675 have wriggled through this net from Transkei into Ciskei, and now they are being caught in another one. Where is the next wriggling point to help them escape?

I want to refer to something else that the hon. the Minister said. He said with great fervour and conviction that no single right is being taken away from anybody by this Bill. Does the hon. the Minister not consider that citizenship or nationality in the country of one’s birth is a right? Is that a right or a privilege? This question also has to be answered by the hon. the Minister. How he can argue with fervour and conviction that no rights are being harmed when he is taking their citizenship or nationality away, is something I do not understand.

I once again wish to come to paragraph (d) of schedule B in order to obtain clarification on this issue. I want to refer specifically to the hon. member for Albany. Schedule B(d) reads—

That applies to the hon. member for Albany. [Interjections.]

Order!

Schedule B(d) goes on to state—

The next provision states—

Both these aspects also apply to the hon. member for Albany. Does that, however, make the hon. member for Albany a Ciskeian? In terms of this Bill it would certainly appear to. That is how ridiculous this whole situation is. I would think it very likely that the hon. member for Queenstown, who does not happen to be in the House at the present moment, would also qualify in terms of the three aspects mentioned.

Order! I cannot allow the hon. member to argue that point, because I think his premises are wrong. Schedule B(d) starts off by stating—

Being a citizen of a territory within the Republic does not make á person a citizen of the Republic itself. In my eyes a territory within the Republic is a homeland and therefore a citizen of such a territory would be a citizen of a homeland, or a territory that was formerly a homeland. It does not include South African citizens.

It means the whole.

Let me ask the hon. the Minister of Health, Welfare and Pensions whether he speaks Xhosa.

Yes, I do.

Then go back where you belong.

Then I would suggest that that hon. Minister should perhaps go and live on his R20 per month in Ciskei.

That is right.

That is more than most people have.

Plenty of mealie-meal there.

Order! I must ask the hon. member to apply himself to the schedule. I do not think I can allow him to argue on the basis of a misinterpretation of the clause.

With respect, I would argue … that the interpretation of the clause is being decided on by this Parliament.

That is right.

I believe that the whole point of the argument is that there are, in fact, different interpretations given to clauses by that side of the House and by this side of the House. If the hon. the Minister believes that we have misinterpreted this provision, let him point out to us where we have misinterpreted it. I believe that schedule B(d) very clearly states that the questions raised have been answered in the affirmative in relation to somebody like the hon. member for Albany. Therefore, in terms of schedule B(d) he does qualify, because at the commencement of schedule B it is stated—

Then the various questions are posed in schedule B(d), questions which I applied to the hon. member for Albany. Your point, Mr. Chairman, that South Africa is a territory within the Republic is, I submit with respect, invalid.

If we can get rid of Munnik, perhaps we should support this clause.

I think that is a very good point that the hon. member for Houghton has just made. The hon. the Minister of Health being a citizen of Ciskei is the first reason I have heard for supporting this clause.

Yes, I may well have changed my mind.

I am aware that such a situation will not be forced on the hon. the Minister of Health or the hon. member for Albany.

Order! I do not think the hon. the Minister of Health has anything to do with this schedule.

He has. He speaks Xhosa.

Order! I am now finally asking the hon. member to apply himself to the particulars of this schedule. Otherwise he will have to resume his seat.

Mr. Chairman, on a point of order: Surely the relevance of an argument is material and not the validity? Surely a chairman’s duty is not to rule whether an argument is good or bad. His duty is to rule whether it is valid or not. Yet you, Mr. Chairman, are ruling on whether it is good or bad.

Another result of not accepting the amendment to schedule B could be very clearly seen last month in the events at Nyanga, but I am not going to say anything more than that about that. That is, however, going to be one of the effects, one of the abysmal and ghastly effects, of not accepting the amendments I have proposed. As I have said, in schedule B…

Order! The hon. member need not repeat himself. He must not fool around with the House or the Chair. He must please resume his seat.

Mr. Chairman, I hope the hon. the Minister is going to reply to the questions.

No, I am not, because the hon. member for Durban Central was fooling around with the House.

You will use any excuse not to answer questions.

Mr. Chairman, I should like to put a question to the hon. the Minister and I hope he will reply to it because I mean it quite seriously. I wish to refer to paragraphs (d) and (e) of the schedule. In his reply to the hon. member for Durban Central on his amendment, the hon. the Minister stressed the importance of language and also of culture. I should like to know where the difference in language lies between a citizen of Transkei and a citizen of the proposed new State of Ciskei. That is my first question, and that is important. In the second place, in paragraph (e) it is stated—

Could the hon. the Minister, for my edification, tell us what the essential difference is between the culture of a Transkeian and the culture of a Ciskeian?

Mr. Chairman, I shall reply to it very briefly. This schedule deals with the granting of citizenship by way of exclusion. This was my main objection to the hon. member for Port Elizabeth Central’s argument. He made a mockery of the whole matter. Citizenship is being dealt with by way of exclusion. One can have the case where you have to determine the citizenship of a woman who is married to a man who is a citizen of another independent State, and if one does not have the criterion of language and culture available, where will you get the wisdom from to determine that woman’s citizenship? In the first place, what this is concerned with here is not the distinction between a Xhosa in Transkei and a Xhosa in Ciskei. I have already said that as regards Transkei and Ciskei no confusion exists in law. Any possibility of creating confusion is excluded because of the chronological sequence that is being followed. When Transkei became independent, a group of people became independent and citizens of Transkei in terms of that Act. The people of Ciskei are now becoming independent and citizens of Ciskei in terms of this legislation. Confusion in law is, therefore, being eliminated. Therefore, when one is dealing with cases where a person is a member of another nation and one has to determine of which nation the person is a member, language and culture are cardinal and essential criteria to help one to do so.

Amendment (1) put and the Committee divided:

Mr. Chairman, I appreciate that the procedure is such that I cannot move the proposed substitution printed in my name on the Order Paper, but I can argue in favour of the existing preamble being deleted. If that were deleted, I could then move the proposed substitution appearing on the Order Paper. I must therefore first make out a case for the House to vote against the preamble as it is printed.

The purpose of this preamble is to indicate the intent of the Bill. I think that this, more than anything else, highlights the fundamental difference between the Government and ourselves in regard to the measure before the House. The existing preamble reads as follows—

This makes the intent of the measure, its prime purpose, the objective of becoming independent.

We believe that independence should be only the procedural mechanism for another purpose and that the end purpose should be the creation of, and Ciskei’s membership of, a Confederation of South Africa. We believe it should be recorded in the measure itself that this is the objective in bringing this measure before the House. The intent should not simply be independence but establishing a mechanism or procedure for the creation of a confederation in South Africa.

I believe that the House should now place that intention on record by voting against the preamble as it stands so that we can then insert the intent which the Government claims it has and which we believe should be substituted. If the preamble is deleted, we shall suggest that it be replaced by the following—

In this preamble the objective is clearly stated. The objective is the establishment of a confederation of South African States. This clearly indicates that the granting of independence becomes a procedure through which a confederation is achieved.

There will be other opportunities of arguing—as we have already done during the discussion of other clauses—what we understand by a confederation—what the Government understands by that and what we in these benches understand by that. Therefore I shall sum it up only very briefly. The debate which took place here in the House yesterday was one of the most positive, one of the clearest exchanges of views on basic political philosophy that we have had since the beginning of this session. From the Government we received a clear and unequivocal definition of what they see as confederation. That definition was clearly given by the hon. the Minister who stated the point of view of the Government. We have a different view on the matter. [Interjections.] It is a view which, as the hon. member Mr. Van der Walt says, can be debated during Third Reading. At this stage, however, addressing myself to the preamble of this Bill, I am dealing with a specific issue. That is the issue of confederation. I am trying to explain how we see the sort of confederation envisaged by Ciskei and the sort of confederation which we believe would best suit South Africa.

In view of the unique circumstances of South Africa, the unique problems of South Africa, I believe that we have to have a uniquely South African solution. I also believe one cannot simply superimpose a Western concept, a concept taken from some book, the product of the minds of political scientists, based on Western concepts and Western ideas. That is what the hon. the Minister has done. He has defined the loosest possible form of confederation he could think of, the loosest possible classic concept which imposes no obligations other than consultation. We believe that the form of confederation at which we should aim should be one which would meet the contents of the package deal, the objectives and desires expressed by Ciskei regarding their acceptance of independence.

As we are dealing now with the motivation for this measure, I should like to point out that this motivation includes what Ciskei asked for. It includes the objectives set by Ciskei. This is a matter which I cannot debate now because it will not be in order. I do want, however, to simply name the objectives, the three basic objectives i.e. citizenship, land and the question of consolidation and a structured form of cooperation. We believe that confederation, in order to work, must be structured, and we should like to see it based initially—right now—on the creation of a council of ministers who will have the task of defining and drawing up the final details of the confederal structure.

In order to pin-point this we believe that the measure should state it in the preamble. That is why I appeal to the hon. the Minister to insert in the legislation the sincerity which has flowed from him in the course of this debate, the passionate feeling for what he is trying to achieve, his understanding of the Ciskeian mind which, he has said, this Bill reflects and his understanding of the Ciskeian anticipation, the Ciskeian desire, the Ciskeian objectives. Let us accept that. Instead of just talking about how sympathetic he is to Ciskei and to their aspirations, let the hon. the Minister translate that sympathy into words in this Bill. I appeal to him and to the Government to vote against the preamble as it stands so that we can replace it with words that will really indicate what it stands for. [Time expired.]

Mr. Chairman, we in these benches are also going to vote against the preamble but for different reasons from those that have been expressed by the hon. member for Durban Point. We do not agree with and we would not vote for the preamble that he suggests be substituted for the existing preamble in the Bill, for the simple reason that we do not believe that the sort of confederation that he wants is a genuine confederation. That matter was argued out between the hon. the Leader of the Opposition and the hon. member for Durban Point at Second Reading, so I do not wish to repeat those arguments again. However, in the main we cannot support the proposal of the preamble that he suggests because it contains a provision that states—

We are in principle against Ciskei becoming an independent State. Let us look at the preamble as it stands at present. It reads as follows—

It is my contention that these two provisions in the preamble should be substituted one for the other. In other words, the opening paragraph should read—

And the second paragraph should read—

That would then put the true position because it is the Government of Ciskei that “deems it expedient”. They have been made an offer they cannot refuse. I again state, as we have stated previously, that it is not the people of Ciskei who desire independence; it is the Cabinet and the leader in Ciskei who deem it to be expedient. At no time has any real test been taken of the desirability or otherwise that exists among the people of Ciskei for independence.

Mr. Chairman, on a point of order: Is the hon. member entitled, after such a wide debate has been conducted about the question of the referendum, to broach the matter again at this stage in respect of the preamble?

It is within the rules. The hon. member may proceed.

Thank you, Mr. Chairman. I am actually debating the very words of the preamble and I have suggested a substitution.

Mr. Chairman, on a point of order: Last week when hon. members made gestures in this House, they had to apologize for having made them. The hon. member for Houghton has just pulled a face at the hon. member for Houghton has just pulled a face at the hon. the Minister. Should she not apologize for that?

That is not a point of order. The hon. member may proceed.

That was a friendly grimace. That was all it was. As I say, no clear expression of opinion of the vast bulk of the people was taken and I point out again that two-thirds of the people who could have registered to vote for or against the referendum on this issue did not register. Therefore we have no clear expression of opinion from the people of Ciskei. That is the one point.

The other point is that the referendum was of course held on completely false premises. The original suggestions in regard to the area of land that was to be granted, the package deal and the options that were to be granted to the people of Ciskei are not contained in this Bill, and therefore the preamble does not reflect the true situation.

Thirdly, it is very important that we realize that the granting of independence as proposed in the preamble is going to mean the deprivation of existing rights, the rights of citizenship or nationality, depending on how that particular expression is interpreted. That means that the right of future participation in the political processes of the Republic will henceforth be denied to the people who are now and in the future going to exercise all their political rights in Ciskei.

Finally, this preamble will, if it is adopted, deprive the people of Ciskei of the rightful share that they should have in the economic fruits of the Republic that they have helped develop over the years.

It may be expedient for the Government of Ciskei to grant independence and as far as the Government of South Africa is concerned it may, of course, be desirous, but this is all part of the overall plan whereby Black citizens in South Africa will gradually be deprived of their rights of political participation within the Republic and will become foreigners in the land of their birth. We shall therefore vote against the preamble.

Mr. Chairman, I do not want to disturb the pleasant atmosphere that was reigning in the House a moment ago, but on the other hand I cannot fail to take the hon. member for Houghton seriously to task. She made the unbelievable allegation that the referendum in the Ciskei took place on “false premises”. The hon. member argues as if we arranged for that referendum to be held. It was the Xhosa nation of the Ciskei who decided of their own free will to hold a referendum. They held the referendum and we had no say in it. It was an exclusively Xhosa matter on which they alone decided, but in spite of that, the hon. Opposition is continually alleging that Chief Minister Sebe decided on it. However, there is a Legislative Assembly and a Cabinet in the Ciskei and just as in any other democratic Parliament the Chief Minister is there in the capacity of a Chief Minister only and he cannot do as he wishes. He is responsible to the Legislative Assembly, to the Cabinet and to the people. However, the hon. Opposition persists in arguing about this question from their own viewpoint, and it actually hurts me to hear how the Opposition has continually grossly insulted the Xhosa people over the past three days, without realizing it. [Interjections.] The Xhosa people cannot defend themselves here.

Why not? [Interjections.]

Hon. members should not adopt that attitude here any longer. With that I have now dealt with the hon. member for Houghton, and I understand that they are going to vote against this preamble.

I now come to the hon. the leader of the NRP, and I want to tell him that without any doubt the preamble that he proposed is a very fine one. The wording thereof is very fine and in general it is not unacceptable. My own view of this is that his wording would be excellent for a preamble to the creation of a confederation, and when we reach that point, one would indeed be able to look at this wording and take it into account because, as I said, the wording as such really is acceptable to me personally—and I am sure I am also speaking on behalf of this side of the House. One would have been able to consider this fine wording, as I have already indicated, as a preamble in the case of a confederation, but it is not acceptable in the case of the Bill that is before the House at the moment.

I want to indicate why it is not acceptable in this case. Three other nations have already become independent—I am referring to the nations of the TBV countries—and in those three cases the preamble was exactly the same as the preamble that is before us now. Any change would involve implications for the hon. the Minister of Foreign Affairs. That is my first point.

[Inaudible.]

Secondly, in essence this Bill concerns one major, important matter, and this is the desire of the people of the Ciskei to become independent. That is why the preamble says in very beautiful, simple words—

for the reasons that I have already mentioned. To allow this legislation to come into its own right, it is therefore much better in my opinion to retain the preamble in its present form. That is why this side of the House does not consider a change acceptable. There is no doubt that we are dealing with this legislation in order to make considerable progress and that a part of that progress is being reflected in the wording which the hon. member for Durban Point is proposing, but, however, let us leave the preamble as simple as it is now, in correspondence with those of the TBV countries. It is also the easiest and best way of doing it. Let us then carry on from here in a spirit of unanimity, with each one of us desirous of making a positive contribution towards solving the very complicated national issues with which we are faced.

Mr. Chairman, I should just like to state something clearly. What I proposed, is that we should make the object of this legislation more than independence alone. What I envisaged, was that it should link up with the new dispensation. The hon. the Minister himself has said on several occasions that we are now at the beginning of a new era, a new political development. Therefore, if we are starting something new, why do we not say so? Must we continue to link this new dispensation, this start of a new political dispensation, to days gone by, to times when confederation was rejected? Here we have a new dispensation, a new idea. Why do we not say so so that it can be seen that we are involved with something new? If we do not do so, we are in actual fact saying that what we are doing now, is precisely the same as what we did in the case of the Transkei, Bophuthatswana and Venda, because we are not changing anything. We must show that it is something completely different and not simply a repetition of what happened in the case of other States. This was what I had in mind with my proposal.

Preamble put and the Committee divided:

Mr. Speaker, I move—

Traditionally a generally accepted rule existed in customary public international law in terms of which sovereign independent States were entitled to immunity from the jurisdiction of the courts of other States and could, as a consequence, not be impleaded against their will in the courts of such other States.

This immunity extended not only to acts of state—acta jure imperii—but also to ordinary commercial transactions—acta jure gestionis. A sovereign State was therefore immune from the jurisdiction of foreign courts in respect of its agents and activities—whatever form the latter might have taken.

*As a result of this doctrine therefore a State not only enjoys immunity in respect of actions taken in giving effect to State authority, but also in respect of ordinary commercial transactions.

If a State concluded a contract with a juristic person in another State for the supply of goods and services for a specific consideration, that juristic person could not implead that State in the courts of the State in which he was a juristic person, if that State did not meet its obligations in terms of the contract.

This wide-ranging rule was known as the doctrine of absolute sovereign immunity. H. Booysen, Volkereg: ’n Inleiding, page 213, describes this rule as follows—

C. Lewis, in an article entitled “Sovereign Immunity and Common Law” which appeared in Lloyd’s Maritime and Commercial Law Quarterly of November 1979, referred on page 461 to this rule as follows—

†Apart from a number of practical considerations which gave rise to the rule of absolute sovereign immunity, the origin of the rule is to be found in the doctrine of sovereign equality of States, a doctrine which is sanctioned by international law and entrenched in article 2(1) of the Charter of the United Nations.

However, it would have been extremely unjust if the doctrine of absolute sovereign immunity remained unqualified ad infinitum and, as Professor Dugard points out in the South African Law Journal, 1980, p. 358, the “advent of the socialist State and the emergence of State-owned trading corporations in States with a predominantly capitalist economy have, however, altered the situation and today many States support a doctrine of restricted or qualified immunity, according to which immunity from the jurisdiction of municipal courts will be granted in respect of acts jure imperii and not in respect of acts jure gestionis.”

*The fact that States have become involved in commercial transactions to an increasing extent has necessitated to an increasing extent, since the beginning of the century and particularly after the Second World War, that the general scope of the immunity rule had to be modified by means of legislation. It was European States in particular, i.e. Italy (1886), Belgium (1900), Austria (1950), France (1961) and the Federal Republic of Germany (1963), that adopted measures in terms of which other States could in future only lay claim to immunity in the case of purely State actions and no longer if they were impleaded in consequence of commercial transactions to which they were or had been a party. Since 1938 this practice has begun to find its way into international customary law which is the law that reflects the practices of States, and at present it is the generally applicable rule as is indicated by Booysen op cit 213 and all other contemporary writers. Lewis op cit 462 discusses the rationale for this state of affairs in his characteristic style as follows—

In contrast to the European States, American and English law—the latter mainly as a result of the Appeal Court’s decision in the Porto Alexandre case in 1920 and the operation of the stare decisis doctrine—has adhered strictly to the rule of absolute immunity and the British courts, in particular, have with few exceptions, of which Lord Denning’s decision in the case of Trendtex Trading Corporation v Central Bank of Nigeria, (1977) 1 All ER 881 is one, allowed several opportunities on which the new trend in international law could have been applied, to pass. In a subsequent article in the Maritime and Commercial Law Quarterly of February 1980 Lewis condemns the British practice and says: “(I)t had become increasingly clear since the Second World War that this country, virtually alone among the civilized nations, was holding to a doctrine that was not only inconsistent with contemporary international legal rules and the general practice of other nations, but was manifestly repugnant to the needs of the commercial community.” Dugard op cit 358 also mentions that “The two most notable adherents to the absolute approach have been the Soviet Union and England” and that the former is not a surprising exception. Ultimately the American and British legislatures were also compelled—the United States of America in 1976 by means of Public Law 94-583 and the United Kingdom in 1978 by means of the State Immunity Act—to intervene and to bring the position in those States into line with developments in the rest of the Free World by means of legislation. The British Act also enabled the United Kingdom to join the European Convention of State Immunity of 1972 as a member of the European Community.

The British Act is particularly illuminating since it not only represents the latest schools of thought on this subject, but is also the first law that tries to regulate the subject of State immunity in its entirety. The principles contained in this Act, have been accepted in a report on the subject (VN Doc A/C/4/323 of 18 June 1979), published at the request of the International Law Commission, as being a guidepost for the future codification of the rules of international law in this field. It is as a result of these considerations that the Bill at present before this House, is cast in the British mould.

†In a number of decisions, beginning with De Howarth v The SS India, 1921 CPD 451, the South African courts, like their British counterparts, adhered to the doctrine of absolute immunity. Dugard criticizes this trend as follows—

To this I shall shortly refer—

I can also refer in this connection, for hon. members who may be interested, to Booysen op cit, page 214.

It may be added that this decision of the Cape Provincial Division was taken on appeal. The Appellate Division’s judgment was reported at page 464 of the fourth volume of the 1976 law reports. The Appellate Division noted the international movement away from the doctrine of absolute sovereign immunity but ruled that a firm decision on the matter, per Corbett JA “must be left for some future occasion”.

In fairness to our courts it must be pointed out that they were never unsympathetic to the plight of South African citizens or companies who were barred from impleading foreign States which relied on their sovereign immunity. Thus, in the case of Prentice, Shaw and Schiess Incorporated v Government of the Republic of Bolivia, 1978 (3) SA 938, the applicant’s claim was dismissed because the Government of Bolivia relied on sovereign immunity, leading Goldstone AJ to make the following observations at page 941—

The future occasion to which Corbett JA referred finally came in December of 1979 when, in a decision reported as Inter-Science Research and Development Services (Pty) Ltd. v Republica Popular de Mocambique, 1980 (2) SA 111 (TPD), His Lordship Margo J, with Franklin and Price JJ concurring, made bold and finally adopted the doctrine of restricted immunity. In an excellent judgment the court came to the following conclusion—

And—

The court then ruled that it was at liberty to apply the restrictive doctrine and proceeded to do precisely that. The Inter-Science decision was followed, on 4 February 1980, by the Eastern Cape Provincial Division of the Supreme Court in a decision which was reported as Kaffraria Property Co (Pty) Ltd v The Republic of Zambia, 1980 (2) SA 709 and it would seem reasonably safe to assume that the South African courts will not in future revert to the doctrine of absolute immunity.

*Even prior to the decision in the Inter-Science case, I requested the Department of Foreign Affairs and Information to investigate the possibility of doing away with the i doctrine of absolute immunity by means of legislation and regulating the question of the immunity of foreign States from the jurisdiction of the South African courts in detail.

The question which arose after the Inter-Science case was whether, in view of the new line taken by the courts, it was at all necessary to regulate this matter by means of legislation. The Department of Foreign Affairs and Information approached the Chief Justice and the Judges President of the Provincial Divisions of the Supreme Court, as well as the Department of Justice on the matter and they were all ad idem that legislation was necessary.

There are various reasons why legislation is still necessary—

1. 1. The courts have only declared that the doctrine of restricted immunity will apply in future, but there are still no guidelines as to which actions will qualify as commercial transactions.
2. 2. Legislation which regulates the matter in detail ought to promote legal certainty and South African companies and subjects will therefore feel themselves at liberty to enter into legal agreements with foreign States, knowing what legal remedies will be at their disposal if such a foreign State failed to comply with its contractual obligations.
3. 3. In addition, legislation ought to be an easily understandable source of knowledge of the legal profession in South Africa for foreign States, in any case to a greater extent than the few reported court decisions, which do not address a great many questions.
4. 4. Now that the courts have accepted limited immunity, there are a multitude of matters connected with the distinction between Government actions and commercial transactions, which require regulating and explaining. Besides matters dealing with the material aspects of the law there are also matters of legal procedure which will have to be regulated by legislation. It would probably take years to reach clarity in respect of all allied and relevant questions if it were left to the courts to decide, and in the interim injured parties would have to undertake litigation with an unnecessary degree of legal uncertainty. Lewis expresses the same idea as follows—

I could illustrate this problem by means of a practical example. On 2 December 1980 the Witwatersrand Division of the Supreme Court granted EFAX (Pty) Ltd, trading as International Paper ’Industries, a writ of attachment ad fundandam jurisdictionem on property of the Transkeian Embassy in Pretoria, after the same court had ordered on 18 November 1980, through another judge, in a similar application from the same company against Bophuthatswana, that—

I respectfully suggest that the court was not acting in accordance with international law by allowing attachment ad fundandam on embassy property, which is protected by international law against any form of attachment. The Department of Foreign Affairs and Information was therefore compelled to direct the State Attorney to take steps to rectify the order for attachment of embassy property ad fundandam jurisdictionem. Unfortunately the matter was seized upon by certain newspapers to suggest that the Government was making attempts to frustrate a legitimate claim of a South African company against the Transkei, whereas the intention was merely to protect embassy property. We in no way intended to make it impossible for the company to litigate. In fact, the records prove that there were many cases where South African companies have litigated against foreign States without there having been any suggestion of interference by the authorities. As a matter of fact, in the case under discussion the company received satisfaction through the instrumentality of the Department of Foreign Affairs and Information, without further legal action. Hon. members can imagine what chaos there would be in international relations if attachment of the property of embassies was authorized. It could also happen to our embassies.

The Bill therefore seeks to confirm the principle that when the Government of a foreign State undertakes an ordinary commercial transaction with, for argument’s sake, a South African company, that State must meet its obligations like any other contractor and if it fails to do so, there will be legal remedies at the disposal of the prejudiced company to recover damages resulting from the specific State’s failure. I am convinced that hon. members will agree with me that this is an equitable innovation in our law and that it is in line with the position in the Free World.

Apart from commercial transactions, the Bill singles out other matters and agreements in respect of which common sense and one’s sense of justice dictate that when States enter into such agreements, they ought not at a later date to be able to rely on the immunity rule to evade performance of such commitment.

†Examples are contracts of employment, delictual liability, ownership, possession and use of property, excluding property used for the purpose of a diplomatic mission or consular post, patents and trademarks and State participation in bodies corporate.

The Bill leaves sovereign immunity in respect of acts of State intact, and that is as it should be, since the international rule of sovereign immunity was originally formulated for this purpose only. The strings that were later attached served neither a useful nor a just purpose and will ultimately only be sacrosanctus to those States in which free enterprise is non-existent. The Bill represents a complex piece of legislation and it is very much a venture into the unknown, but I want to assure hon. members that the department will, once it becomes law, monitor the application of the Bill carefully and Parliament can be asked to effect amendments if cases arise in practice which warrant amendment. At present I am satisfied that the Bill represents an effort to serve the South African community at large and in particular the business community as such, without any adverse effect on the interests of the States that are represented in this country and that honour their contractual obligations as a matter of course and honour.

*The Bill was formulated to keep pace with changed and changing conditions. It is in line with international customary law as it now stands and it gives South African subjects or South African companies entering into commercial agreements with Governments of foreign States an important protective mechanism.

I trust that the Bill will meet with the unanimous support of all hon. members.

Mr. Speaker, the hon. the Minister has given as a very detailed and comprehensive account of the developments in this branch of international law which led up to this Bill. He gave us a very comprehensive account of what is intended with the Bill and why the Bill actually places South Africa’s legal position on the same level as that attained by other States in recent years. It is a Bill which in one fell swoop, as it were, closes the gap that existed between the South African view of the immunity question and the view that existed in most other foreign States with which we had relations.

The hon. the Minister explained that the concept of absolute immunity arose originally out of respect for sovereign States and for sovereigns themselves. He explained that the concept grew and was established in Great Britain because it was said that an arrest of a sovereign’s agent, for example, a diplomat, offended the dignity of such an agent. It was felt that even if one sued a sovereign State through such an individual in respect of a commercial transaction which he entered into, that in itself amounted to an undignified step against a sovereign State. The hon. the Minister has indicated how, particularly since the Second World War, more and more countries adopted the restrictive approach towards immunity of foreign States, and he indicated that by the early ’seventies the only major countries left with the original absolute approach were, in fact, Soviet Russia, the United Kingdom and ourselves in South Africa. Only since 1976 have our courts started cracking, as it were, the absolute doctrine, and have they started to introduce a restrictive approach. Although it seems that they have now adopted the restrictive approach, there are still different approaches to the doctrine in the various Supreme Court divisions in the country. This is therefore, a positive Bill and one that should be welcomed in all quarters, particularly by the practitioners and the foreign States who will now know where they stand. We therefore support the Second Reading of this Bill.

If this Bill is passed, the courts will be able to concentrate on the real merits of the issues in front of them, rather than concentrating their attention on the long preliminary skirmishes that very often took place in order to establish whether or not a State was entitled to immunity. Now the issues and the merits will be the main criteria before the courts. The Bill creates certainty and it therefore enables litigants to plan ahead for litigation.

There are two minor points that I wish to raise with the hon. the Minister. The first one is not a matter of principle but maybe the hon. the Minister can deal with it. I refer to clause 11 that deals with the Admiralty provision. The position is that the Department of Transport Affairs has engaged Senior Counsel to draft a new Admiralty Courts Jurisdiction Bill, in order to bring the Admiralty provisions completely up to date and into line with international practice and convention. I understand that the hon. the Minister’s advisers have not had an opportunity of actually discussing this Bill with the draftsmen of the new Admiralty Bill, but perhaps one ought to point out that, although it is unlikely that clashes between this Bill and the new Admiralty Bill will occur, one should keep an open mind on this particular aspect. There should however, not be any difficulty in effecting amendments either to this Bill or to the new Bill that is being drafted in order to accommodate possible clashes. That is merely a point that one should bear in mind.

Secondly, clause 16 of the Bill gives the State President the power to issue by proclamation in the Government Gazette restrictions or expansions of immunity if the need arises. The State President virtually takes the role of a legislator in terms of that clause. That in itself is not a healthy situation, particularly where, in terms of this Bill, the State President would not merely be dealing with administrative but actually with legislative functions. However, one understands why it may under certain circumstances be necessary to make use of that clause.

I merely want to make the point that section 15 of the UK Act, from which we have obtained this idea, does go a bit further in that it provides, as it were, for a safety clause. It does this by ensuring that both Houses of Parliament are in a position to annul any of the orders proclaimed in the British Government Gazette by Her Majesty the Queen. My point is therefore that one ought to be careful in using clause 16, because it does not have the counterbalance of section 15(2) of the British Act. If this provision in our legislation is not used carefully the State President could become a legislator. This would affect practitioners, in particular, because one knows from practice that for example in shipping cases immunity provisions often have to be researched and applied within a very short period of time because their application is normally a matter of urgency. If this type of legislation were therefore to be promulgated piecemeal in government gazettes, practitioners would have to refer to government gazettes to find out exactly what the law was at any given time. That would make it very difficult for them indeed in times of emergency to establish exactly where they stand in law. Those are two aspects that I merely raise so that the hon. the Minister could perhaps deal with them.

As a whole the hon. the Minister has dealt very comprehensively with the law. He referred to cases to indicate what the South African courts’ attitude was in the past. He has also indicated that this Bill does, in fact, include a number of provisions that are included in the European Convention for the Immunity of States which was passed in 1972. It therefore serves no purpose for me to repeat any of those points which were so ably put across by the hon. the Minister. This is a positive piece of legislation and this side of the House therefore supports the Second Reading.

Mr. Speaker, I am grateful to be able to react to what was said by the hon. member for Durban Central, and I am grateful that he and his party have pledged themselves to agree to the Second Reading of the Bill before us. However, I not only want to thank him for his support, but also for his positive attitude and his commendation of the hon. the Minister’s Second Reading speech.

He referred specifically to matters in connection with clauses 11 and 16. In consequence of that party’s general approach to matters of this nature—and I refer to the State President’s authority to comply with certain obligations—clause 16 in particular could prove troublesome to them. However, I thank the hon. member for the fact that he only asked that the provision be applied with circumspection. I think that deserves our appreciation. I feel the hon. the Minister will also respond adequately to what he had to say in connection with clause 11, because he advocated that this provision should not conflict with possible legislation on admiralty proceedings.

If it had not been for the interesting nature of this Bill, in I think the commendation of the hon. the Minister’s Second Reading speech and the positive attitude towards the legislation as such would have sufficed. Two matters in particular figure prominently in the legislation. On the one hand we are dealing here with a modern legal development. However, there is also an element of political development to be discerned. Previous speakers referred pre-eminently to the legal development, but the importance of the legal development lies in the fact that at a given juncture in the Inter-science Research and Development Services case a turning point was reached in the decision of Mr. Justice Margot when modern trends in the relations between States were carried into effect. The new trends can be seen in the fact that the modern State is venturing to an ever increasing extent into the field of commerce. For this reason it was therefore essential to introduce legal developments to adjust to the general change taking place in respect of the State as such.

The emergence of the socialist State is one of the reasons why Russia in particular is not keen to waive the theory of unrestricted immunity. Since we are living in a specific part of the world and have a specific philosophy, i.e. that we are desirous of bringing about a constellation of States and a belt of international commerce in Southern Africa, it is of cardinal importance that our legal developments should also keep pace with this trend. The most important example arising from the authority for this is to be found in one case to which the hon. the Minister referred, the so-called Inter-science case, where a specific commercial undertaking was nationalized by a State. In terms of the old international law the contracting party did not previously enjoy the protection to which it could most certainly have laid claim. I feel Mr. Justice Goldstone expressed this aspect very effectively in the Prentice, Shaw and Schiese Incorporated v Government of the Republic of Bolivia case where he intimated that the private person concluding a contract with a State in fact finds himself in a defenceless position. Such a person has entered into a valid legal agreement with a State, but is not in a position to take issue with that State, owing to the theory of unlimited immunity which applied in public international law. For this reason, and in spite of this case and judgment given by Mr. Justice Goldstone, the decision of Mr. Justice Margot is all the more commendable. However, the most important aspect is the sensitivity displayed by the department by taking immediate action to introduce legislation to bring about legal certainty. With our political goals and what we want to achieve in respect of good relations in Southern Africa, it is of vital importance that we protect the private sector and private enterprise, where they come to the aid of the State in their way by forming economic trade links and participating in commerce. For this reason the protection of the private sector and the incentive we are offering by means of this measure to participate in commerce, is in my opinion most certainly one of the most important elements of this measure.

I should like to single out one aspect of the legislation. I refer to clause 17, which deals with the obligation resting on the Minister or his department to issue a certificate in order to declare to a court know what is a State, what is not a State, who is a head of State and whether the dispute is being conducted before the court by an element of a federal State or not. Without in any way unnecessarily emphasizing the potential troublesomeness of this clause, I think that with this approach we have not only brought legal certainty; we have also ensured that the courts need not occupy themselves with a debate on the question whether a specific State is or is not in fact a State. As it is expressed so strikingly by O’Connell in his book International Law—

For this reason legal practitioners must not venture into the field of international law as such to ascertain whether or not a State is in fact a State. The opportunity is being created to determine by the mere submission of a certificate by the department and the Minister what is a State for the purposes of this legislation, and what is not.

The fundamental rule of this legislation and the fundamental rule of international law, namely that the courts of one State are not under the jurisdiction of another State, is a sound rule and is laid down accordingly, but the exception which makes provision for agreements in the field of commercial contracts and service contracts as well as certain delictual liability which can be incurred by a State, I feel leads to sound legal development and also serves a political purpose.

Mr. Speaker, it is with a certain measure of temerity that I rise to put the point of view of the NRP in respect of this measure because, Sir, I am not a legally trained man and those hon. members who have spoken before me have all been legal gentlemen. However, I sincerely hope that I shall be able to make a positive contribution to the debate here this afternoon.

The hon. the Minister is to be congratulated on an outstanding presentation in his Second Reading speech wherein he left us with absolutely no i’s that needed dotting or t’s that needed crossing. He did say towards the end of his speech that this Bill was a complex piece of legislation and, furthermore, that it was very much a venture into the unknown. I agree wholeheartedly with those sentiments, and I think that were it not for the fact that the session is drawing fast to a close, probably every legal brain in this House would have liked to spend some time debating the very interesting clauses that are contained in this Bill.

I want to say that we welcome the introduction of this legislation. It supplements the Diplomatic Privileges Act of 1951 and it effectively brings the Republic of South Africa into line with other Western countries, more recently, as the hon. the Minister indicated in his Second Reading speech, the United States in 1976 and the United Kingdom in 1978. It does this, Sir, because it draws a distinction between restricted and absolute immunity. This distinction has become more necessary to accommodate the tendency on the part of capitalist countries to establish State-owned corporations for commercial purposes whose operations, be they contractual or otherwise, must be regarded as falling outside the ambit of acts covered by the old doctrine of absolute immunity. This has long been the case in socialist states as well as was indicated by the hon. the Minister when he referred to Soviet Russia in his Second Reading speech.

The Bill before us reflects in a clear and positive form the accepted new trend in international law which is, as I said just now, to apply absolute sovereign immunity only to acts of State, such as, for example, the appointment of diplomatic representatives which, by their very nature, require the exercise of unfettered sovereignty. Furthermore, the legislation restricts sovereignty in respect of acts relating to trading, general ownership, the use of property, contracts and so forth. We in this party regard the restriction of absolute immunity in respect of death, personal injury and property damage as being of particular importance in the public interest.

Like the hon. member for Durban Central I wish to refer to one particular clause to which I would appreciate some reaction from the hon. the Minister. I refer to clause 11 which deals with Admiralty proceedings. I am sure the House is aware that our Supreme Court functions as a Court of the Admiralty in that it applies British legislation which is incorporated into our law by way of reference. While from a strictly legal point of view this would appear to be satisfactory, we feel that it would be more consistent or in keeping with the dignity of the Republic and it would perhaps be better legal practice if specific legislation in this regard were to be introduced. I commend that thought to the hon. the Minister and hope that he will react to that suggestion.

In conclusion I should merely like to add that we, like the hon. member for Durban Central and as indicated by the hon. member for Krugersdorp, feel that the Bill will be of great assistance to the courts in South Africa in resolving what has up to now been an area of some uncertainty, namely the determination of the restricted or absolute nature of sovereignty when that particular item is at issue.

For the reasons that I have outlined, we whole-heartedly support this measure and we look forward to developments that may emanate from that unknown to which the hon. the Minister made reference in his Second Reading speech. I think he has suggested that due to careful monitoring by his department of the Bill and the effects of the Bill, we shall probably see amendments come before the House from time to time. This, however, is the sort of measure where only experience is going to be the teacher. I think to have this open-minded approach to this legislation is highly commendable. We support the measure.

Mr. Speaker, I rise not to detain the House unnecessarily on this matter, but to support my colleague the hon. member for Durban Central in the comments that he has made and the general support he has given to the Bill. At the same time I should like to draw attention to the fact that on the Order Paper notice is given of certain amendments standing in the name of the hon. member for Durban Central.

None of these amendments is intended to negate or to contradict any of the provisions of the Bill, but rather are they amendments which flow out of very careful examination of the equivalent British Act of 1978 which requires in our opinion a certain fleshing out of some of the definitions and the provisions contained in the Bill which we have before us.

The first one is the question of introducing a definition of the word “court” into this Bill in that a court might be seen in a restricted measure. It might be seen to be the Supreme Court’s Appellate Division whereas there may be many occasions on which courts, people or bodies other than courts in the formal sense of the word do have judicial functions. Here I think of such bodies as the Rent Board, the Board of Trade, the Censor Board and others which are not subject to normal review by the courts of the land. Where one is dealing with a definition or the use of the word “court” in a document which is going to be subject to international interpretation, it is our view that consideration could be given to defining “court” as to include any person or body exercising judicial functions. It is a point of view which the hon. member for Durban Central will develop during the Committee Stage.

The other amendment relates to clause 3 on the question of the waiver and it merely makes it quite clear that in terms of our law it will be deemed that the head of a diplomatic mission has the authority to waive and that nobody could shield behind the fact that there may be a dispute or some uncertainty in this matter. This is taken from the British law and it seems to be appropriate.

The last one concerns the question of a commercial transaction and the amendment is aimed at the adding to the concept of a commercial transaction another form of transaction which places an obligation on a foreign State by virtue of a contract which whether it is commercial or otherwise, is performed wholly or partly inside the Republic.

These amendments will be moved by the hon. member for Durban Central, but we thought that we should draw attention to the fact that they stand on the Order Paper. We should also like to convey our appreciation to the hon. the Minister’s department for having made available its law advisers for fairly extensive discussions on these aspects in our preparation for this debate.

Mr. Speaker, as far as the hon. member for Durban Central’s reference to admiralty matters is concerned I would certainly ask the legal adviser of the Department of Foreign Affairs to have discussions on the drafting of admiralty legislation in order to ensure the closest co-ordination. If required I would not object to that Bill amending the present measure before the House. However, I will not be able to postpone the passing of this legislation any longer because I think I would thereby harm the potential interest of certain South African citizens. We will do our best to liaise as closely as possible on the subject of admiralty legislation. The hon. member for Umhlanga also referred to this matter. If I remember correctly, the legislation regarding admiralty law was prepared in 1972 but was never put into operation because it contained certain inadequacies. Apparently a completely new Bill will now have to be prepared. My department will, however, liaise very closely with those drafting that Bill.

*As far as the remarks by the hon. member for Krugersdorp are concerned, I want to point out that clause 17 was specially designed to simplify matters for litigants. Hon. members may imagine that it happens in certain instances—for example, where the status of certain countries is questioned and as a result of all the problems surrounding the recognition and non-recognition of countries—it is sometimes almost impossible to settle a dispute in this regard. For that reason, the clause concerned has been inserted precisely in order to help the litigants. In any event, these are questions which fall within the discretion of the executive, and which could cause embarrassment if they were debated in the courts. I trust that all hon. members will accept this.

†I take note of the remarks of the hon. member for Sea Point and I understand that when we reach the Committee Stage the amendments suggested by him will be further dealt with by the hon. member for Durban Central.

I wish to thank all hon. members who took part in this debate for their positive and constructive attitude in supporting the Bill. In particular I would like to thank the hon. member for Sea Point for the gracious and complimentary remarks he made in connection with the assistance rendered by the legal advisers of the Department of Foreign Affairs and Information.

Question agreed to.

Bill read a Second Time.

Committee Stage

Clause 1:

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

That relates to the definition of “court”. Reference to section 22(1) of the 1978 Act of the United Kingdom shows that the concept of “court” was defined more widely than the traditional concept of “court”. It is understandable that in the United Kingdom this sort of definition is necessary. It is obviously more necessary in that country than it would be in South Africa, because in the United Kingdom there are, in addition to the courts, numerous tribunals and boards which do exercise judicial functions. That is far more the case there than in South Africa. However, the complete lack in our Bill of a definition of the word “court” could perhaps in future result in situations arising where a tribunal, a board or an individual exercising judicial functions finds that in a case in which the defendant is a foreign litigant that foreign litigant falls back on the immunity which is accorded to foreign States. The proposed amendment, as the hon. member for Sea Point has pointed out, does not contradict anything in the existing Bill but, in my view, could be a refinement if included.

One can think of practical examples, such as the position a taxing master could find himself in when, after a court order for costs has been made after litigation has been concluded, he is faced with taxing a bill. His decision, which in our practice has to be abided by by the parties, is not a decision made by a court. If then a foreign State refuses to accept his authority or his ruling as regards costs and falls back on its immunity, obviously the whole purpose of this legislation will be frustrated. Other possible examples could be decisions or rulings made by the Rent Control Board, the Road Transportation Board, etc.

I indicated initially that one obviously understands why in the United Kingdom this definition is included. There they have a far greater number of disputes being decided by tribunals than we have. My view, in putting this amendment, is that it cannot do any damage to the Bill while it could possibly cover aspects which could in the future create problems unless the word “court” is defined in a way such as is proposed, for example, in this amendment.

Mr. Chairman, the hon. member for Durban Central is probably correct when he says that his amendment cannot materially change the Bill. On the other hand the law advisers and I cannot really see why it is necessary. In fact, we have a problem with the amendment in the sense that we cannot see how it will work in practice, what it will entail or what its purpose is.

I am aware that in section 22(1) of the British Act the concept “court” is defined to include tribunals and bodies carrying out judicial functions. This appears in the British Act because many matters and particularly cases arising from service contracts are not tried by ordinary courts, but by so-called industrial tribunals. This is the position in Britain. Our system is not the same at all.

I went into the question of whether a definition such as that proposed by the hon. member for Durban Central should not also be included in this Bill. However, the advice I have is that conditions it is not necessary in South Africa. The following considerations served as the basis of my standpoint—

1. 1. There are indeed a variety of courts specially instituted by law in South Africa, but such courts will also be deemed to be South African courts for the purposes of the Bill. The point is, therefore, that those special courts are in fact described as courts, and the provisions of the Bill will apply to them as they will apply to the divisions of the Supreme Court and magistrates’ courts.
2. 2. I cannot think of one other judicial institution to which States may desire access to which they do not have access in any case.
3. 3. The way in which each institution which is not a court and which deals with public interests, performs its activities, is in each case subject to the power of review of the courts. There is in fact a wide diversity of principles for which administrative law makes provision and in regard to which the courts may exercise their power of review.
4. 4. In the past immunity meant that a State was exempt from the jurisdiction of the courts, but not that States were not bound by the decisions of other institutions. It is a rule among nations that a legal obligation rests on States to respect the rules of other States. However, penal sanctions cannot be imposed on a State if it fails to respect those rules, and in terms of the Bill it will not be possible to impose a penal sanction under such circumstances.

Institutions other than courts, which have decision-making powers which could possible affect States, are however as accessible to States as they are to any other person or body, and there is nothing to prevent a State from taking the decision of such a body, or the way in which it was taken, to the courts on review.

†I think the hon. member for Durban Central also mentioned the example of the taxing master. The taxing master is in fact an official of the court. The court can therefore compel the taxing master to comply with the court’s order or decision. Therefore, in the circumstances, I regret that it will not be possible for me to accept this amendment of the hon. member for Durban Central.

Mr. Chairman, it is quite correct that, as the hon. the Minister indicated, in terms of the examples mentioned by me any litigant will be able to rely on the right of review. It is also quite correct that we find ourselves in a different situation from that in the United Kingdom with its many tribunals. This is also certainly not an amendment which we on this side of the House will insist on having accepted.

I believe that the hon. the Minister has given us ample indication of the reasons why it was excluded. I believe that those reasons do make sense and that they contain some measure of validity. Practice will in future prove whether or not it will be necessary to define it any further. I am also sure that the hon. the Minister will not be averse to accepting any further amendments in future, should it be necessary.

Amendment negatived.

Clause agreed to.

Clause 3:

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

The hon. member for Sea Point has already indicated very briefly what the intention of this amendment is. Again it is based almost entirely on the United Kingdom Act, and what it is aimed at is merely to round off clause 3 as it is printed at the moment.

If one looks at the amendment one notices that it is particularly the final portion of the amendment which, in my view, is important. That is where it provides for those persons who enter into contracts on behalf of a foreign State to be deemed to have the right to waive immunity as well. Where this could be significant is perhaps in the following example. I am not sure whether this has already happened in practice, but theoretically one could find that an official, for example the head of a Government department, is authorized to enter into a contract with a foreign State. He may in that contract also insert a waiver of immunity for the courts in which the contract is to be performed. If it then results in litigation, that foreign country may then assert that although the official had the authority to enter into the contract, he was not given specific authority to waive immunity. What this amendment therefore tries to achieve is to ensure that an individual who contracts on behalf of the Government and who inserts into that contract a waiver of immunity is deemed to have had the authority to waive immunity. It is exactly that aspect that one mainly tries to cover with this amendment. I believe it can add to the effectiveness of the Bill and it is for that reason that I move the amendment.

Mr. Chairman, at the outset, when we began work on the legislation, we did consider a provision of this nature, but for a variety of reasons which I shall not go into now, we initially felt that it was not necessary. However, the amendment of the hon. member for Durban Central does not detract from the Bill and I therefore accept it.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 4:

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

1. (a) a commercial transaction entered into by the foreign state; or
2. (b) an obligation of the foreign state which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the Republic.

This amendment to clause 4 seeks to ensure that foreign States will not be able to rely upon the immunity of the courts in such contracts as do not fall into the classification of commercial transactions. The Bill, as in the case of the British Act, defines in clause 4 what commercial transactions are and defines the type of contracts that would be classified as commercial transactions. I am grateful for the assistance that I received from the legal adviser of the hon. the Minister because the best example to use in illustrating why this amendment would be useful was brought up by him. The example brought up by him relates to a lease that a foreign State enters into for the occupation of, for example, an embassy building or any other building. That form of contract would not be classified, as I understand it, in terms of clause 4(3)(a) of the Bill as a contract for the supply of goods and services. Therefore it is possible that a grey area may arise as to whether or not such a contract could rely on immunity from our courts. What this amendment seeks to achieve, therefore, is to ensure that contracts which perhaps do not fall into the goods and services type of contracts are caught in the net, are brought in on the same basis as commercial transactions. In terms of the proposed amendment that contract would be wholly or partially performed in South Africa and therefore would also be subject to the same provisions as a commercial transaction. For that reason I believe it can add to the effectiveness of the Act and it can make sure, as the hon. member for Krugersdorp indicated, that ordinary contracts are not frustrated because of reliance on immunity provisions where such a contract is not a commercial contract.

Mr. Chairman, the proposed amendment of the hon. member for Durban Central is an improvement and I accept it.

Amendment agreed to.

Clause, as amended, agreed to.

House Resumed:

Bill reported with amendments.

Third Reading

Mr. Speaker, I move, subject to Standing Order No. 56—

Mr. Speaker, I briefly wish to express appreciation for the manner in which this Bill has been prepared and dealt with not only by the hon. the Minister but also by his advisers particularly. I thank the hon. the Minister for accepting the amendments and I am glad that we can approve of this Bill this afternoon.

Mr. Speaker, in response to earlier remarks made by the hon. member for Durban Central, I can assure him that the State President will exercise powers conferred on him in terms of clause 16 with great circumspection.

Question agreed to.

Bill read a Third Time.

Mr. Chairman, the strong objection that this side of the House has against the proposed amendment of section 29, is based on two legs. Firstly, it relates to the scrapping of the audi alteram partem rule. There cannot possibly be any justification whatsoever for excluding that rule. Any Government that starts removing that principle from its laws has either become jittery or is arrogant, and that is the situation that we have to look at. The removal of the audi alteram partem rule was dealt with during the Second Reading, and I should therefore like to concentrate on the second aspect that we object to and which could be a very serious consequence of this Bill. I refer to the resultant possibility of abuse of ministerial power. This clause gives the hon. the Minister a blank cheque to abuse his ministerial power. Obviously the hon. the Minister will deny that he intends to abuse his power and he will say that he only intends to act on good and reliable evidence. But however bona fide the hon. the Minister may be, any Minister to whom powers are given as wide as those contained in section 29 will be tempted or pressurized into abusing this power. That is an inevitable consequence of too much power in the hands of too few individuals. During the Second Reading debate the hon. the Minister himself gave an indication of how easy it was to start sliding down the slippery slope towards misuse of absolute power. I proceed from the assumption that he did not actually mean what he said during his Second Reading speech, and I quote (Hansard, 23 September 1981, col. 4475)—

*What was the hon. the Minister saying here? He said that if it was a potential risk to the State, he was going to act. Consequently he is prepared to act before he has ascertained for certain that a risk does in fact exist or that subversive activities have already taken place. According to what he said in his speech he consequently wishes to act when, in his opinion, the possibility exists that an organization may act in a subversive way. This is an indication of how dangerous it is to eliminate the audi alteram partem rule from legislation of this nature. This is why this side of the House rejects the clause as it stands at present. We are doing so specifically because we want to prevent decisions from being taken in terms of views of this nature. In addition we are doing so because we realize that every developed country in the world considers the audi alteram partem rule to be a matter of principle.

The hon. the Minister indicated that the audi alteram partem rule was being eliminated so that action could be taken against subversive activities. However, let us examine what is happening in other countries, particularly countries which we may consider to have inferior legal systems. Let us take a look, for example, at China. What happened a short while ago when Mao Tse-tung’s wife was accused not only of subversive activities, but of high treason as well? In China she was granted the right to state her case.

Yes.

This is precisely the same kind of subversive activity which the hon. the Minister wishes to cover with this provision.

Worse than the communists.

This is exactly the same principle which is at stake. [Interjections.] This is an unimportant example, but the point is that she was given the chance to state her case. The principle remains the same here.

†China is a country whose legal and political systems many South Africans look askance at; yet we are moving backwards as far as our legal system is concerned, as far as our legal rights are concerned. What are we doing in passing this Bill? We are making absolutely sure that in matters covered by this clause justice will not be seen to be done. Is that the direction in which that hon. the Minister wants this country to move? He will be creating a precedent which, if not guarded against, could easily become the order of the day. It is a sad fact that once one breaks down and removes such principles, it is so very difficult—in fact, almost impossible—to get them back without drastic political revolutions and new political orders. It is so easy to remove them, but so difficult to restore them. Once they have absolute ministerial powers, Ministers in general will find it easy and convenient to bypass the courts. It becomes easier and easier to implement one’s views and to do so without any public checks and balances. The hon. the Minister has already, in his Second Reading speech, given us an indication of how he sees concepts such as the rule of law. Let me quote the following from his speech (Hansard, 23 September 1981, col. 4471)—

*Is the rule of law in that case a “sickly story”? Is the audi alteram partem rule also a “sickly story”? [Interjections.]

†Is this the attitude which prevails among the Ministers which govern the country? Is this not an indication that once this rule has been removed from this clause, we are most definitely going to slide down the slippery slope? This clause is a dangerous backward step and we on this side shall oppose it as vigorously as we can.

Mr. Chairman, the hon. member for South Coast put our case extremely eloquently during the Second Reading. In the light of the seriousness of the amending legislation, we should like to tell the hon. the Minister in no uncertain terms why we object to the new inclusion in section 29. I think the hon. the Minister himself will agree, as will hon. members on that side of the House, that the right of appeal is a cardinal rule in Western judicial practice. I think the hon. the Minister will agree with that. He has seen it working, not only here but also in relation to provincial matters. Secondly, the powers of the executive, which includes the hon. the Minister, in the democratic philosophy should be subject to restraint. I think the hon. the Minister as a subscriber to the democratic process and sound judicial practice, will not be able to deny those particular aspects. The hon. the Minister will also fully appreciate that we in this party and the official Opposition take great exception to the fact that the affected party should be prevented from being given notice of the intended action and being able to defend their case.

We believe that the minimal prerequisites for justice should be contained in the appeal factor and that a notice should be served on the intended defendant. I also think the hon. the Minister will agree that the effect of this clause is that the right to be advised of intended executive action and the opportunity to state one’s case, even if only to a Minister or an appeal board, is the minimum prerequisite to see that justice is done. I should like to point out to the hon. the Minister that it is obvious that his difficulty arose from a specific case. The hon. the Minister will appreciate that we are always to be found for the control and prevention of abuse. However, I do not believe that one should prejudice the rights of legitimate welfare and charitable organizations based purely on the experience of one organization which was not a welfare organization and which abused this particular process. Therefore, regrettably—and the hon. the Minister will appreciate this—we are unable …

That is a good point that you made.

How do you know that they abused it?

They abused it in terms of their intent to be a charitable organization raising funds for welfare purposes. The hon. the Minister agrees with that. However, the abuse of intention does not legitimize the abrogation of two cardinal principles we mentioned, namely the right to be heard, the right to defend one’s case and the restraint on the executive. The hon. the Minister will not be surprised to hear that although my party is strongly to be found for control and the prevention of abuse, we are unable to support this amending clause.

Finally, I should like to tell the hon. the Minister that it was the intention of the hon. member for South Coast to move an amendment to nullify the effect of the particular new insertion here, but we have been advised that this will not be possible in terms of the Standing Rules and Orders. Therefore we will not be able to move it. We will only be voting against the clause. I should, however, like to point out to the hon. the Minister what the effect of this amendment is. The hon. the Minister is trying to be the policeman, the prosecutor, the judge and the jury, all in one. Regrettably, this party is not to be found for the introduction of such powers to the executive in South Africa.

Mr. Chairman, the hon. member for Durban Central dealt with the audi alteram partem principle. The hon. member also dealt with the “rule of law”, and I think it is perhaps as well for us to have clarity with regard to these “principles” before I proceed to reply to his statements.

†When we talk about the rule of law we must ask ourselves which law is referred to in this phrase namely the rule of law. Which law are we referring to?

Just laws.

What law are we really referring to? This is a question which I think has been discussed in all avenues of jurisprudence over many years and the only law that can possibly be referred to here is the law of the country, the law of the land. In the expression “rule of law”, the law referred to is the law of the land. There have been discussions in this regard about natural law and all sorts of law. In many books that have been written on this subject we find that this really boils down to …

It presupposes just law.

That hon. member says it presupposes just law. Sir, this particular point has been written about on many occasions and on each occasion one comes back to the same point namely that the law referred to here is the law of the land. In a democratic society the law can always be changed.

And so can the Government.

While a law is on the Statute Book it means that the voters of a country are satisfied with that particular law and with that particular Government. That is why, among other things, the only law that can be referred to here is the law of the land.

How does this rule of law really come about? The rule of law is ensured by the integrity, independence and highmindedness of the judiciary. The judiciary ensures that the balance of the scales is maintained.

Having said that and having said that the law referred to in the rule of law is the law of the land, I should now like to discuss the maxim audi alteram partem. What actually is this audi alteram partem rule? It is a means of determining the intention of the legislature. That is all that it is. To arrive at that intention of the legislature is the whole purpose of a court of law. When one uses the audi alteram partem rule it is an approach to the interpretation of laws. That is what it is. I say this because in the absence of a clear intention in the interpretation of a clause, one applies the maxim of audi alteram partem. This one does because one says that clearly the legislature has not excluded the hearing of the other party. It is only a means of interpretation and nothing more. The point is simply that it is always the intention of the legislature that is supreme. One has to ascertain the will of the legislature and that means the rule of law. The rule of law is the intention of the legislature. Of course, those laws can be changed by another party after having won an election. What we are doing in this particular clause is we are ensuring that the rule of law is maintained. We are ensuring that the intention of this legislature is made clear and we do so in terms of the rule of law. This is not frivolous at all. Let me repeat it once more. We are ensuring that the intention of the legislature is made clear so that when the particular legal provision is interpreted there can be no doubt whatsoever in regard to the exact intention of the legislature. That is all we are actually doing. This is completely within the bounds of the rule of law. I think hon. members should get very clear in their own minds what the rule of law is. I can also assure them that if they wish to write a book about the rule of law and what it really means it would run into volumes and volumes. It is very easy to talk about natural justice and just law in the vague terms in which those hon. members have been doing here. However, we are dealing here with the future of a country.

*The hon. member for Durban Central maintained that the Minister could exceed the bounds of his powers completely and abuse them at will. I want to make it quite clear that such an allegation is not correct. In fact, it is entirely wrong, for there are three things we must examine. The first is that the Minister may act only in the public interest. It is stated in the clause. He may act only in the public interest.

But does he know what it is?

If he does not act in the public interest, he may be taken to the Supreme Court on review. There is an hon. member sitting on the other side who knows what I am talking about, for there is one problem he shouted out the other day: You may not be able to prove it. That is not the point. The point is that there is a legal remedy. I say that one can prove it, but the point is that there is a legal remedy that would be available if the Minister were to act arbitrarily. That is point two.

The third aspect is that the Minister is in any event answerable to Parliament. Hon. members may rise here and put questions to the hon. the Minister. Consequently the Minister may not act arbitrarily, as is being suggested.

There is another point to which I want to refer. The hon. member for Durban Central said that there was a possible risk. Unfortunately I cannot recall his exact words in this regard. However, I want to put a question: If there is information that a subversive organization is engaged in something which is aimed at bringing this country to its knees and it is collecting funds, how long must one wait before stopping it? I think this is the question which must be asked in this regard. How long must one wait before one stops it? Must one allow it to make a fait accompli of its effort to undermine the country? When is one to stop it?

†The point I am trying to make is this: The attempt should be foiled at the earliest possible opportunity. If we do not agree on that, then we just do not agree, and the PFP is soft on security. That is the end of it. I maintain that we should make it as difficult as possible for subversive elements to raise funds. As soon as there is the first glimmer of this being the situation—one can ascertain this with reasonable certainty—one should act; one cannot wait until the whole act has been completed and perpetrated.

They do those acts because of the very Acts you pass in this House.

I want to make it clear that if one has the interests of the people (volk) of this country—White and Black, everyone—at heart, one must give attention to this at the earliest possible opportunity. As soon as there is a reasonable measure of certainty that something is happening, action must be taken. Reference has also been made to China. [Time expired.]

Mr. Chairman, I really should like somebody to pinch me, because I am not sure whether I am really awake. I do not really believe my ears. [Interjections.] The hon. member for Pretoria West—he is a legal man—has the temerity to stand up in this House, this legislative body, a body which creates laws for the country, a body which creates international laws, a body which creates justice, and to argue firstly that he does not know what the rule of law is other than that the rule of law is the law of the land. I just cannot understand such an argument. How can that hon. member come along today to say that he does not know that the rule of law is the rule of natural justice.

I should like you to define that.

No country in the world has to legislate and lay down in the Statute Books what the rule of law or the rule of natural justice is.

What do you know about it?

What I know about it is that I practised it for 30 years. We have spoken about the rule of law for ages. The world has known the rule of law for ages. It is written into constitutions and practised in all civilized countries. The hon. member for Pretoria West says it is the rule of the land. I would like to ask the hon. member the following question: If, for example, the criminal procedure is amended so that there shall be no cross-examination of any witness, will the hon. member go along with that?

You bet he will!

Is it not natural justice to cross-examine a witness? If we pass a law here to the effect that a witness is no longer cross-examined, will hon. members go along with that? What utter rubbish! The hon. member says the audi alteram partem rule is an interpretation. I cannot believe my ears. Firstly, the hon. member contradicts the hon. the Minister because the hon. the Minister says his reason for introducing this Bill is to cover a loophole in the law. This loophole is that a defendant can rely upon the audi alteram partem rule, the right to be heard. It is a travesty of justice for the hon. the Minister to say that a right given to a person to be heard is a loophole. Then the hon. member for Pretoria West says this rule is an interpretation! One of the most prevalent crimes at present, especially in the Cape, is that of rape. Judges, among them the Judge-President—who I think is not unknown to the hon. the Minister of Health, Welfare and Pensions—have commented on the rape cases in the Cape and the attitude towards it. If one reads about a rape case where a defenceless female—who is perhaps 12 or 13 years old—has been raped and in addition to that been assaulted, one is incensed with what one has read. You feel as if you want to take the law into your own hands and deal with a person like that. Yet, no one is entitled to take the law into his own hands. The person accused of rape, who may have committed a heinous crime, is entitled to be heard in court. That is the audi alteram partem rule and we will uphold that principle, since it is for a court of law to find that person responsible.

Order! The hon. member must come back to the contents of the Bill.

I am dealing with the point made by the hon. member for Pretoria West, who says that the audi alteram partem rule is purely an interpretation. Must the courts then interpret the matter purely on that basis?

I would like to ask the hon. the Minister if he will at any stage advise an organization why an application has been refused. Secondly, I would like to ask him why he did not allow the Director to refuse the application if he was suspicious of Fosatu’s modus or purpose in raising this? Why did he not allow Fosatu to appeal as it can in terms of the Act with which we are dealing at the moment? Why did he not then give them an opportunity? I would like to submit that if the hon. the Minister had done that, it would have been cheaper and quicker; justice would have been done; the other side would have been heard, and he would not have been put in the position where he has to say that he has to close a loophole in the law. It would not have been necessary; he could have dealt with it in terms of the Act. He could have refused the application. I can see no urgency in this matter. They have not collected and used funds; they have only applied to collect funds. The Act itself is quite sufficient, and hon. members on this side of the House have made it clear that the hon. the Minister has the power to deal with this situation. If an organization wants to misuse funds, the hon. the Minister has the machinery to prevent it. Why do we then have to make idiots of ourselves? Why do we have to come to this House to bring this about? Is this not a just society? Do we not live in a just society?

No, we do not.

Must justice not be done and must it not be seen to be done in this country? Must there be one-sided decisions by one individual? Sir, we are not soft on security.

Not soft, just “pap”. [Interjections.]

Not at all. Read section 29. It says nothing about security. It refers to “public interest”. “Public interest” can be as broad as it is long. It could relate to moral or immoral actions or anything.

Now the hon. the Minister has the burden placed on his shoulders to take decisions in the public interest. Because “public interest” is as broad as it is long, it is that much more necessary that the audi alteram partem rule should apply. The other side should at least be heard. One can still turn down the application. We are not dealing with registered organizations because they have been passed by the Director. Any fund-raising by registered organizations has already been approved. We are therefore dealing with organizations which apply for temporary permission. Surely the Act as it stands can be administered expeditiously. It need not be over six months. It can be done in a short time. One can hear the application, let them appeal if they want to and let it take its natural course. Why do we have to come with an amendment of this nature?

I am sorry that the amendment of the NRP has been ruled out of order because in these circumstances we would have supported an amendment of that nature. We would support anything which would prevent this delegation, this miscarriage of justice, which we are now being asked to approve. We shall vote against it in the strongest possible manner.

Mr. Chairman, I listened to hon. members of the Opposition and the way in which they were carrying on is a very clear indication to me that I was correct in using my powers …

Hear, hear!

I am answerable to this House, not only in my own opinion, but also on the basis of judgments given from time to time by judges. I have here the judgment by Mr. Justice Centlivres to which I referred in a previous speech. It was in 1954 and dealt specifically with this type of matter. He said on that occasion—

The judge said that Parliament may change it. [Interjections.] Surely the Opposition is not Parliament. The majority in Parliament are sitting on this side of the House. I am submitting this amendment to Parliament and in the interests of South Africa this Parliament must say whether it wishes to give me those powers. Surely it is not the Government which does this. The hon. member for Durban Central tried to attack me as though I were perricious. He spoke of “this arrogant Government”. This is an insult to Parliament. It is Parliament which is occupied with this legislation and not the Government. I am an instrument of Parliament. I was appointed by the hon. the Prime Minister because I am a member of this Parliament. I want to make it clear that if Parliament says that in this specific case the audi alteram partem rule must disappear, then it disappears. [Interjections.] It has been insinuated by the other side of this House, just to cause repercussions in the Press, that the audi alteram partem rule was going to disappear across the board. I want to say this is misleading, that it is untrue.

[Inaudible.]

I am not talking to ignoramuses now. I am talking to hon. members who participated in this debate.

You are a nasty little man.

I want to tell the hon. member for Durban Central that he is still a young member of this House and that he will have to moderate his words if he wishes to make an impression on the public of South Africa. He should not try to create the impression here that this is the start of a complete change in our legal system.

[Inaudible.]

The hon. member for Durban North made a very important point.

Mr. Chairman, on a point of order: Is the hon. member for Houghton entitled to say that the hon. the Minister is a fascist?

I said “Argue with a lot of fascists”.

And you are a communist.

Mr. Chairman, on a point of order … [Interjections.]

Mr. Chairman, I ask you for a ruling on the reference by the hon. member for Houghton to this side as “a lot of fascists”.

You are.

Order! The hon. member must withdraw that.

I withdraw it, Sir.

Mr. Chairman, on a point of order …

Order! The hon. the Minister must withdraw what he said about the hon. member for Houghton.

I withdraw it, Sir.

One all.

I now come back to the hon. member for Durban North. That hon. member identified the problem accurately. I am now referring to the case in which I prohibited an organization from raising funds. It was a trade union which was ostensibly raising funds on behalf of the public. The information at my disposal—which I may unfortunately not disclose in this House—originated from our intelligence network. I shall consult them in future as well. Out of a total of 2 500 I prohibited only one. I have already referred to that. Now the hon. member for Hillbrow wanted to know why I had not first afforded the director an opportunity of approving the fund-raising effort. The hon. member must please not be naïve. If the director had approved of that organization’s fund-raising effort and I had subsequently prohibited it, that organization would have been able to take me to court, which would have meant that we would have been back to square one. This could have resulted in lengthy court cases lasting even longer than a year. Meanwhile that organization could have continued to raise money to its heart’s content. [Interjections.] Of course they would have been able to do so. They could merely have applied for a court order against me, which could have resulted in my having to run back and forth from one court to the other. Surely I am not here to play children’s games.

An interesting aspect of this measure is that, when the original Bill was introduced here for the first time, hon. members of the official Opposition simply accepted that I had all the powers at my disposal which I am now asking for in this amending Bill. They conceded this. The hon. member for Bryanston was their main speaker on that occasion. That was before they had lawyers who could discuss these matters in this House. At the time the hon. member for Bryanston made a long speech here and maintained that the Minister was arrogating all possible powers to himself, something which would prevent people from taking him to court. The hon. member unburdened himself of a whole string of remarks here. If I had the time I would have quoted them to hon. members.

The member for Umbilo spoke in a similar vein in 1978 and also made a long speech. He, too, said that the Minister was arrogating all possible powers to himself. Surely this means that hon. members of both Opposition parties were under the impression that I did have those powers. This was their impression until the learned judge gave a different judgment, and I respect the judge for his finding.

Now the hon. member for Hillbrow is ostensibly expressing his concern about my having said during my Second Reading speech that I was eliminating a loophole. However, the hon. member was quoting only half of my words. When one is dealing with the official Opposition, it is always the same story. They are always quoting only half of what one says. Why do they do that? They do it simply to try to make an impression on the Press. [Interjections.]

During my Second Reading speech I said that the proposed legislation was not aimed at Fosatu alone, but that it was intended to give expression to the original objective. Surely the original objective was that the Minister should have that right. Hon. members opposite accepted it as such. Hansard will confirm this. Furthermore the hon. member for Hillbrow maintained that this legislation was aimed at eliminating a certain loophole in the existing Act specifically because the existing Act did not achieve the original objective.

The hon. member for Pretoria West gave a very interesting elucidation. [Interjections.] Hon. members of the Opposition can go ahead and laugh. At times they laugh in a way which sounds just like a ghost roaming through a graveyard. Let them laugh. Thank heaven they cannot get past this Parliament, nor the general public, with their subversion. In the meantime, however, they can continue to five comfortably, while they go down on their knees every evening to say thank you that the NP is in power. [Interjections.]

The hon. member for Pretoria West raised arguments which I do not want to repeat now. He made it very clear that there were circumstances under which one would have to act in the interests of the security of this country. Is there one hon. member in this House who feels that when I know about these circumstances, via information which I may not disclose—and surely this is not irresponsible—I shall not take action against an organization which has in mind the subversion of the power of the State or the provocation of the State? Is there any hon. member in this House who would say that, irrespective of the rule of law, etc., I should not take action? Is there a single hon. member who would say that they expected me not to take action when I knew that; it was a subversive organization? Let me ask the hon. member for Pinelands: Does he want me to sit still when I know that it ii a subversive organization?

Mr. Chairman, may I ask the hon. the Minister a question?

I shall reply to the hon. member’s question at a later stage. I am talking to the hon. member for Pinelands now. If the hon. member for Pinelands and I know that there is an organization which is acting subversively, would he take it amiss of me if I prohibited that organization from raising funds?

Yes.

It is a decent question I am putting to the hon. member. Would he be angry with me if I prohibited that organization?

I still think that they should have the right of appeal.

The hon. member took a long time to think up that reply.

Now I should like to tell hon. members on this side of the House—and now I am speaking to Parliament for Parliament is in fact the instrument which will decide whether this amendment is to be placed on the Statute Book, not the Opposition, nor the NP—that Parliament has to ensure that it safeguards its own State. If Parliament knows that there are organizations that are raising funds in order to act subversively, and legislation, in which it is being asked that certain actions should be taken in order to prevent such organizations from raising funds, is submitted to Parliament by the Minister, surely I expect Parliament to grant the Minister those powers in the interests of this country.

I do not want to become involved in other arguments, except to say to the hon. member for Durban Central that the allegation he made to the effect that this was the beginning of the total abolition of that rule—the hon. member spoke, inter alia, of a woman who appeared before the court in China—indicates to me that not only has his argument become irrelevant in regard to security legislation in this country, but so has the Opposition. Surely the hon. member cannot come forward with such an argument while we are arguing about serious matters. I am not going to deal any further with the hon. member’s arguments. I think that as a young member he will still have to control himself and use arguments which are more moderate when he is arguing about some of these matters.

I convey my gratitude to the hon. member for Pretoria West for his contribution. He made the point I wanted to make, viz. that it was Parliament that would decide on this amendment. The Opposition is entitled to oppose it, but then they must do so in the knowledge that they are opposing something which is in the interests of the security of the State. Let this be on their conscience.

The hon. member for Hillbrow asked whether I would ever inform the organization in question. Well, if it is not classified information, in which case one does not wish to disclose one’s sources, I am at all times prepared to inform the organization about the matter. The fact of the matter is that I have so far prohibited only one organization out of almost 2 600 cases. Surely this is an indication that we think very carefully before taking our decisions.

I have already replied to the question as to whether we should first afford the Director an opportunity of deciding and then set a long process in motion. Surely one could just as well, when one has the necessary information, prohibit an organization at the earliest possible opportunity, for this has to serve as a warning as well. I want to state in this House today that organizations that do not want to confine themselves to social work and to raising funds for that purpose, must steer clear of this legislation, for if they do have other objects in mind, I shall, in the interests of the State, prohibit them from pursuing those objects.

I shall now reply to the question of the hon. member for Parktown.

Mr. Chairman, as I understand the hon. the Minister, he is now speaking about organizations that are a danger to the State. It is in respect of such organizations that he wishes to prohibit the raising of funds. However, I should like to ascertain whether the Minister of Justice or the Minister of Police do not have the powers to do so, so that the Minister of Health, Welfare and Pensions need not become involved in this.

If they had had such powers, I would have left it to them. Consequently that is not really a good question. Why would I become involved in these matters if another Minister could deal with them? [Interjections.] The hon. windmill should keep quiet while the hon. member for Parktown and I are arguing about this question.

Who is a windmill?

The hon. windmill.

Mr. Chairman, on a point of order: Should the hon. the Minister not address a member by his constituency? [Interjections.] The hon. the Minister seems to be referring to someone … [Interjections.]

The hon. the Minister must please refer to an hon. member by his constituency.

With reference to the question which the hon. member for Parktown put to me, I just want to assure him that if the Minister of Justice or the Minister of Police are able, under their legislation, …

Mr. Chairman, on a point of order: You have not given a ruling …

I have asked the hon. the Minister to refer to an hon. member by his constituency.

The hon. the Minister must apologize.

I must apologize to the hon. member for Parktown for not being able to reply to his question properly because hon. members opposite are constantly interrupting me.

The Minister of Police or the Minister of Justice have legislation to impose restraints on certain organizations, but they do not have legislation under which they may take action against the raising of funds. There is no legislation in terms of which funds that have been raised may be seized or returned to the people who made contributions. However, the hon. member cannot expect me to hand over this Fund-raising Act to the Minister of Police or the Minister of Justice either, so that they then have to deal with the ACVV, the Girl Guides, the Voortrekkers and the other 2 500 organizations. However, I do not expect us to encounter many problems; in fact, there may be no problems in this regard in future, for suspect organizations know that, under this Bill, they will be under observation when they apply.

Another member who spoke earlier said that I was going to take action even if I only thought that something appeared to be suspicious. However, I shall take action only after I have received information from our intelligence network. Such information is then evaluated and only once it has been properly investigated, is it submitted to me.

I now want to address hon. members on this side of the House and tell them that it is within their power to ensure that this Bill is passed. They are in the majority and consequently they are the people who safeguard the security of this country. [Interjections.] That is why they are responsible for ensuring that this kind of legislation is placed on the Statute Book, even if it were to tread on a few toes here and there. We are dealing with dangerous people in this country. Although we are able to identify our enemies, we cannot always prove that they are engaged in subversive activities, even though we are completely aware of this. I could furnish dozens of examples of people who are engaged in subversive activities, yet we cannot prove it. If one were to require legislation of this nature one day, it is important for the Bill to be passed so that I, as the Minister concerned with the Fund-raising Act, may take action which is in the best interests of South Africa and of the security of our country.

Mr. Chairman, I think the hon. the Minister is under a misapprehension when he says that this side of the House has no true concern for the security of the State. I don’t think that is so at all. I should like to make it very clear to the hon. the Minister that we have no objection to the control and prevention of abuse. What we are saying to the hon. the Minister is that this is the wrong way to go about it.

I should like to ask the hon. the Minister and also the hon. member for Pretoria West how hon. members on either side of the House will know of cases where the hon. the Minister has exercised his right in terms of this particular clause. The hypothesis has been put that in his interpretation of what is in the public interest, the hon. the Minister will to a large extent be controlled by this Parliament and that we will be able to pass judgment on the hon. the Minister’s decision. I should like to know from the hon. the Minister, however, how we will know the details of those cases in which the hon. the Minister has exercised the powers that will be granted to him in terms of this amending Bill? I ask that question because it is impossible for us to undertake that function—even to accept that responsibility—if we are not to be well informed about the circumstances surrounding each particular case.

That is a very simple statement.

That is the question I am putting to the hon. the Minister and, because it is such a simple question, as that hon. member seems to agree, I trust we shall be able to get an answer from the hon. the Minister. I do not mean that in a derogatory sense. I am just replying to that hon. member who made the interjection.

Let me tell the hon. the Minister, however, that there are other ways of controlling people who abuse the system. Nevertheless, whatever control measures are exercised, in the interests of sound judgment and control one cannot get away from the fact that the individual concerned, the affected party, must have an opportunity to put his case.

That is right.

Surely that has nothing to do with the abuse of control. There is, in fact, better control if the party concerned knows what the indictment against him is and also has the opportunity of putting his case, perhaps not always in a court of law, and I say that because of the reasons the hon. the Minister has given, such as the time factor, the abuse of the judicial system when cases are dragged out so that those persons can continue to perpetrate their deeds. Would the hon. the Minister not consider it better, however, for those individuals to be able to appeal to some or other appeal board or sub-committee, rather than having them rely on the arbitrary decisions of the hon. the Minister? I am sure that on reflection the hon. the Minister will agree with that.

I am sure he will not.

Mr. Chairman, the hon. the Minister based his entire argument motivating this amendment on the security of the State. No one is going to fault him, I am sure, when it comes to the security of the State. Our difficulty—I have mentioned this but the hon. the Minister has not yet responded to it—relates to the question of “public interest”. Public interest is, of course, not necessarily synonymous with the security of the State. The hon. the Minister, I take it, wants to be true to his intentions. I therefore want to ask the hon. the Minister whether he would be prepared—I know he cannot do it today because, strictly speaking, this aspect is not before us now—at the first opportunity, perhaps during the next session, to change the words “public interest” to read “security of the State”. If one bases one’s argument solely on the security of the State, one has a totally different argument. The term “public interest”, however, has such wide ramifications that it is capable of virtually any interpretation whatsoever. That is the one difficulty.

This brings me to our next difficulty. I am alarmed—and I think the public of South Africa is also going to be alarmed—at the statement made by the hon. the Minister today when he said that if he wanted to abolish the right of the other party to be heard, he would do so, and do it again and even do it in terms of other legislation as well.

That I did not say. Those are your own words.

All right, but my question is still: Will he do it? [Interjections.] Are we to regard this as a precedent that can be extended to other legislation as well? If it is to be used as a precedent, the prospect is certainly a frightening one. The hon. the Minister knows that an accused person can be brought before the courts. He can be found guilty in a magistrate’s court and then appeal to the Provincial Division. Even if he is again found guilty in the Provincial division, he can lodge an appeal with the Appellate Division and there be found not guilty. Why? Because he has had an opportunity to be heard. We cannot all be right. We are not gods. We are human beings subject to human error. Everyone is capable of human error. There are, of course, miscarriages of justice at times. Sometimes these occur inadvertently or sometimes because the case is not put properly. If one does not give the other party the opportunity to be heard, how on earth would one know that justice is being done and that one is not making a wrong decision? One therefore cannot possibly create a precedent of this nature, which goes against the very rule of natural justice.

The third point I wish to put to the hon. the Minister is this: What are we dealing with? We are dealing with an application by an organization to raise funds. At this stage they have not yet raised funds and have not yet collected any money. They have not yet spent any money for subversive or any other purposes whatsoever. They have merely made an application to raise funds. It does not make any difference whether it takes one week, six months or one year for the hon. the Minister to give them a reply. Why does one need legislation of this nature when they have not yet collected the money and nothing has happened? They have merely made an application to raise funds. Therefore, what is the fuss all about? With great respect to the hon. the Minister, …

Order! I think the hon. member is going a little too far in his argument now. This is the Committee Stage and I understand from the Temporary Chairman that he has already allowed a fairly extensive discussion of the principle. In the circumstances I think the hon. member must restrict himself to the particulars of the clause.

Mr. Chairman, I am merely replying to what the hon. the Minister said when he made a statement just now with regard to the entire argument that was advanced here today. [Interjections.]

Order! I was not here when the hon. the Minister spoke, but I take it that the hon. member will agree that two wrongs do not make a right.

I shall not be wrong, Sir. I should like to conclude by asking the hon. the Minister to tell us why it is necessary to take these drastic measures to interfere with what is the pillar of law and justice in South Africa when in fact nothing has happened. No funds have been collected. Why cannot the normal machinery laid down in the Act apply until such time?

Mr. Chairman, I think the problem on that side of the House is twofold. Either they do not want to understand and are trying to make it easier for themselves by not attempting to understand, or otherwise they do not recall the background history of the situation. I should like to quote two excerpts from what the then Minister of Social Welfare and Pensions said about clause 29 of the original Bill. He said (Hansard, 15 June 1978, col. 9541)—

The Van Rooyen Commission investigated fund raising. The hon. member for Pinelands knows everything about it. After all, he is aware of the Van Rooyen Commission.

[Inaudible.]

I said the hon. member for Hillbrow must ask the hon. member for Pinelands about the Van Rooyen Commission. The Van Rooyen Commission was appointed to investigate the collecting of funds. The hon. member for Pinelands can tell the hon. member for Hillbrow about it.

*I want to quote further what the then Minister of Social Welfare and Pensions said (column 9542)—

The hon. the Minister then went on to give the facts that I have given hon. members here, for instance that there was no authorization for confiscating money. There was a commission of inquiry into this matter and one of the recommendations of the commission was that section 29 should assume the form that it still assumes today. Then everyone accepted that the audi alteram partem rule had been eliminated. Everyone accepted it as such. A judge then pronounced a verdict in which he intimated that this was not the case, and I accept his verdict. It is a well-known judge who gave that verdict. He said that this is not the case. Another judge said: “If you want to do away with the rule, Parliament must do away with it”. This is what we are doing now. Why then is so much mischief being ascribed to this very essential measure that has been pointed out by a commission, passed by Parliament and with regard to which it is important for an amendment to be made on the Statute Book? No one should have any doubt about what it is about. I am not ashamed to repeat what the then Minister said. If there is any undermining …

Will you tell us about the cases you turned down?

I said earlier on that information that I used in one regard, is of such a nature that I cannot reveal it. It is confidential information. However, this does not mean that it was any old information that had not even been evaluated.

The hon. member for Hillbrow asked why I do not appoint a sort of tribunal to look at the information once again. With all due respect, if one receives certain evaluated information from our security people, why would a tribunal be in a better position to decide than the Cabinet and myself could decide if I were to submit it to them? After all, we can decide on the security aspect. Why should we still appoint a tribunal? Surely then we can simply make it a “uni”bunal, which will be myself.

I think it is important for me to tell the hon. member for Durban North that when I spoke about the Opposition, I meant the official Opposition. I was not referring to his party. Therefore, he need not be touchy. I was speaking about hon. members of the official Opposition who attacked us on certain matters, and they can look up what I said in my Hansard.

Mr. Chairman, I should like to ask the hon. the Minister a question. The hon. the Minister has machinery in, inter alia, sections 8 and 9 of the Act. If the Director turns an application down, the organization concerned can appeal. At that stage nobody has collected any funds and therefore no harm has as yet been done. Why is it necessary to remove the audi alteram partem rule and not allow this provision to apply? Nothing has as yet been done at that stage. No money has as yet been collected. Could the hon. the Minister please deal with that?

Business suspended at 18h30 and resumed at 201100.

Evening Sitting

Mr. Chairman, I asked the hon. the Minister a question and I wonder whether he would deal with the matter. I think he knows the question.

Would the hon. member please repeat the question?

The question is whether we cannot allow the law, as it stands, to take its normal course so that they can apply to the Director and if they are refused, they can then appeal. At that stage they have not raised any funds and no harm could have been done. Since no harm has been done and they have no money with which they can do any harm, why can we not allow the law to take its normal course?

Mr. Chairman, the reply is two-fold. Let me take it as an example that the Director gives permission for the particular organization to collect funds. Such an organization is then in the jockey’s seat because it can collect funds. If I step in to prevent them from collecting funds, then if the Act stands as it is at the moment in the light of the judge’s decision, the organization will take me to court. The court proceedings will have to take its normal course. I am sitting with information which is of a security nature. This whole business can go on for a considerable period; practically for years, because they already have the permission of the director to collect funds. When they take me to court, it does not stop the actual collecting of funds. I am only coming in from the side, and since they have the permission of the director one cannot stop them. This is the first aspect.

The second aspect is that if I stop them beforehand in terms of the existing legislation, then what has happened recently will happen again. After we have had a judge’s ruling I cannot now intervene to prevent them collecting funds. Let us take a third possibility. If the director refuses, he has to give reasons for his refusal because they will take him to the appropriate appeal committee. There the director will have to divulge what I call security information and it will not be to the benefit of the State, the public at large or anybody else if such information is divulged.

That is the point.

We always have those two sides. They could of course take me to court. This is a harsh clause and I admit it, but it is specific and it is not the start of any avalanche. It is merely aimed at providing for certain circumstances in which security is a very prime factor when one deals with matters of this nature. This is not aimed at the Boy Scouts, the Voortrekkers, the ACVV, the Lions or anybody who wants to collect funds. Such persons or organizations are in no danger whatsoever. The provision is aimed at very special circumstances and I have already mentioned that over a period of two years there was one case. That was the case which necessitated the amendment since the court interpreted the existing legislation in the way it did.

Clause put and the Committee divided:

Mr. Speaker, I move—

The South African Development Trust, that is charged with land consolidation in regard to the homelands, has had a scheme in operation for some years in terms of which farmers whose land has been bought up have received an offer to take part of the agreed purchase price in the form of long-term Government stock. Approximately R120 million was issued in Government stock in this way up to the end of last year, when the system was terminated. Much of this stock has already been negotiated, and in addition, many of the original holders no longer require or deserve credit for agricultural purposes. Nevertheless there is still a group of creditworthy farmers with financial needs.

†One of the main reasons why the scheme was abolished can be attributed to the steep rise in interest rates and the resultant decline in the market value of the stock. The situation has now arisen where those farmers who have to buy alternate land but who failed to negotiate their scrip in time, are left with an asset with a diminishing value in a market of rising land prices. Many of these farmers cannot obtain sufficient credit facilities against security of this stock and they will be forced to sell at considerable capital losses.

*In order to assist farmers who are still in possession of stock and need financial assistance for farming purposes, this Bill envisages amending the Land Bank Act so that the Land Bank Board will have the power to determine the value of Government stock issued to bona fide farmers in deserving cases in connection with the purchase of land under the Development Trust and Land Act, 1936, and will accept them as security for Land Bank loans.

In the past financial year the Land Bank has received 3 760 applications for long-term loans from farmers for a total of R268 837 941, of which 3 120 applications for an amount of R190 452 227 were granted by the Land Bank Board. The bank has also received an additional 3 455 applications for short- and medium-term loans from individual farmers amounting to R58 866 183 of which 2 668 applications were granted totalling R42 969 050. During the same period, agricultural co-operatives and control boards have approached the bank for 62 payment loans for normal capital expenditure amounting to R22 745 100, R21 656 800 of which has been granted by the Land Bank Board. Apart from that, the Land Bank Board has advanced seasonal loans amounting to R3 366 598 000 to agricultural cooperatives and control boards. An amount of R44 841 000 has also been granted to co-operatives in the course of the year under the grain silo loan scheme.

I mention these figures to indicate to this House that the additional financial obligation which this legislation will involve for the Land Bank will not be so great in proportion to its other business, that it cannot be accommodated with ease within the existing financial resources of the Land Bank.

The additional powers envisaged for the Land Bank in terms of this Bill will go a long way towards further promoting and expanding the interests of the agricultural sector in our country and will also meet an acute financial need which arose due to circumstances beyond the control of those who require financial aid for farming purposes.

Mr. Speaker, I think the hon. the Deputy Minister, in his Second Reading speech, set out the background and the details of why this amendment is being introduced. I think it is a good amendment, and we in these benches will support it with pleasure.

To some extent this legislation is the result of the escalation that we have had in interest rates during the past few years. That means that if people wanted to use the RSA stock they received for agricultural purposes and could not go to the Land Bank, they might have to sell that stock on the open market, and, depending on when they sold it, perhaps suffer a capital loss. For those people who have received RSA stock and who want to go back into farming, I think, this will of course be extremely useful. It will of course be used specifically for farming purposes. Therefore I think this measure will be welcomed generally by the farming sector. Of course, it will not remedy the situation of those people who sold out their farms but who have not been paid out yet and who are still sitting with their RSA stock, which, at the present moment, they might have to sell at a capital loss, particularly those of them who do not want to go back into farming.

I think the objectives of this measure are very good. Wherever we can encourage people to go into the agricultural sector, I believe we should do so. Personally it worries me that we have people with farming talents who are sitting with basically paper assets, and who might not go into farming because they would not be able to raise enough capital since they would have to sell that stock at a loss. From that point of view, I believe, everything we can do for the agricultural sector is in fact important. We do talk a lot about the development of the industrial and the mining sectors in South Africa, and that is only right. I do think, however, that it is also important that we look after the interests of the development of the agricultural sector because that helps to develop the rural areas of South Africa where we tend to face extremely important economic difficulties. From that point of view I think it is to be welcomed.

This Bill deals with the Land Bank, and is therefore a financial measure. I think it is actually good banking. It is well known in the banking world that RSA stock is some of the best security one can get for a bank overdraft. For a bank the best security one can lodge with them for such an overdraft is in fact Government stock. It is considered to be prime security. Therefore from the point of view of the Land Bank it is a good investment, it is good security and it follows sound banking principles. A third point why it is good is because there is a tendency in our economy for people to accumulate paper assets—and I do not mean that derogatively—and then these assets are not used for productive purposes. I think anything we can do to have paper assets used productively is to be welcomed. This tendency for people to collect paper assets is partly because of the rampant inflation we have experienced in recent years and partly because a lot of people do not think it is worth while to take risks as an entrepreneur to develop the economy of South Africa. Consequently an institution such as the stock exchange is no longer performing one of those essential old functions of raising new money for industrial development. It has become like Lord Keynes pointed out, a game of snap, old maid or musical chairs, where one tries to pass on the shares to somebody else before one is caught out.

Having said these few words, we welcome this Bill. We shall be supporting it but we do have one amendment that we should like to move in the Committee Stage.

Mr. Speaker, we in the NRP shall be supporting this measure. I should like to say to the hon. the Minister that it is something that everyone in the farming community who has had to sell his farm because of the consolidation process in the homelands, has been calling for, and it is for this reason that we welcome it. As the hon. member for Edenvale said during his speech, paper money is not the best asset to have, especially if one is a farmer. If one comes from a farming background it is better to have one’s money in land. This legislation does open the way for farmers to get back into farming, namely those farmers who have had their farms expropriated by the South African Development Trust. I think the prime reason for this Bill is to accommodate those fanners who lost their farms because of the consolidation of the homelands. These farmers were paid out for their farms in cash which represented only about 40% of the value of those farms and the rest they had to accept in Government stock. This process of buying up farms for consolidation has exacerbated inflation in respect of the price of agricultural land, because first of all these vast areas of land were taken out of active commercial agriculture, and secondly, it has placed in the hands of farmers who are wanting land money that they will use to get back into agriculture. This has had an inflationary effect. Unfortunately these farmers had only 40% of their assets in cash and the rest in the form of stock that was given to them by the Government. I accept the fact that South African stock can be sold on the market and, no doubt, a number of farmers have sold it. I am sure that at one time or another some of them actually made a capital profit on the stock. But the problem that arises today is that any farmer who has been holding his stock in the hope of buying a suitable farm now finds that the value of the stock in capital terms, because of the high interest rates that are being paid, has now been reduced. They find themselves in this dilemma. It is for this reason that I believe these provisions will assist such farmers and we therefore welcome them very much indeed. However, if I heard the hon. member for Edenvale correctly, this is only part of the story. There are those farmers who for various reasons do not wish to or are not able to return to farming and who now find that they are holding stock which, as far as its capital market value is concerned, has probably dropped by anything up to 40%. These farmers are in trouble today. Of course, they do not fall under the provisions of this Bill and so I want to draw the hon. the Minister’s attention to their plight.

Unfortunately my colleague, the hon. member for Mooi River, is not here this evening. He is our spokesman on agricultural affairs, and there is an amendment on the Order Paper standing in his name. This amendment concerns clause 4, and I intend to put the argument of the hon. member for Mooi River in this regard during the Committee Stage. I sincerely hope that the hon. the Deputy Minister will consider the views that I shall express on my colleague’s behalf.

I appreciate the figures that the hon. the Deputy Minister read out during his Second Reading speech. I think this is an opportunity for hon. members and also for the public at large to take note of the amounts of money that have been lent to the agricultural community by the Land Bank. These are considerable sums of money; indeed, they run into thousands of millions, and I think this gives some indication of the manner in which the Land Bank has assisted and is still assisting the agricultural community. Now we have these provisions in the Bill before us that seek to assist those farmers who got caught out in having their farms expropriated because of the consolidation of the homelands. We welcome this Bill and will be supporting it.

Mr. Speaker, I am very grateful to both Opposition parties for supporting this measure. I only find fault with one of the statements of the hon. member for Amanzimtoti, viz. his contention that land purchases in respect of consolidation are the cause of an increased rate of inflation. I do not believe that is correct.

The agricultural industry is characterized by heavy capital investment and a growing demand for long-term credit. When it was founded in 1912, the Land Bank had a capital fund of R5,47 million. According to the provisions of the Act at the time the bank was dependent on parliamentary allocations for further funds. However, in the course of time the Land Bank changed, in accordance with the needs of the agricultural industry. It was interesting to listen to the statistics quoted here by the hon. the Deputy Minister, and I want to mention one more which I believe is also very interesting and illuminating. According to the available statistics, the total amount for which applications were received and considered increased by 130% between 1970 and 1981, while the total amount of loans granted increased by more than 200%. The total amount for 1980 was R189,75 million.

An analysis of the purposes for which mortgages were applied for and granted by the bank over the past five years indicates that as is also pointed out there, the greater part of the amounts were utilized for the purchase of land. Therefore the Land Bank and its financing occupies an important place in the South African agricultural economy and exercizes a stabilizing influence on it.

For a number of years the South African Development Trust has operated a scheme in terms of which farmers whose land has been bought up for consolidation purposes are partially compensated in the form of long-term Government stock. Since the interest rates had not changed much in recent times, it was found that not too much was gained or lost if this stock was disposed of before the redemption date. However, in view of the recent sharp rise in interest rates and the scarcity of capital, this now means that farmers will suffer heavy capital losses when they seek to dispose of this stock. Moreover, farmers have the problem that if they want to use such stock as security for loans for farming purposes at the Land Bank, they are not allowed to do so because the Land Bank does not permit it. In order to solve this problem, the hon. the Minister—and, of course, the Land Bank as well—obliged by reacting to representations and accepting this consolidation stock as security against normal Land Bank credit to farmers, and this Bill before the House is the enabling legislation authorizing the Land Bank to advance money to farmers against security of such stock issued by the Government. It is not remarkable, therefore, that all three parties in this House support this legislation.

I wish to conclude with the request to the hon. the Minister and I want to link it to the request made by the hon. member for Amanzimtoti. There is a group of people—I refer to widows, etc.—who neither can nor want to make use of Land Bank financing. However, they, too, have to realize their stock. In many instances they have virtually no choice. Although in the past this consolidation stock could be realized before the redemption date without heavy losses, the position has now changed. These people did not acquire the consolidation stock of their own free will. The State compelled them to do so. In fact, they had no choice. Therefore, in my opinion it is only right that that group of people should also be looked after in these changed circumstances. I therefore address this friendly appeal to the hon. the Deputy Minister and the department and also to the hon. the Minister in his absence, and call upon them please to give the necessary attention to this aspect as well.

Mr. Speaker, I wish to thank the hon. member for Edenvale and the hon. member for Amanzimtoti for supporting this Bill. The hon. member for Edenvale advanced three reasons why his party does support this Bill. I agree with all of them. I think the most important one was the one that was also made by the hon. member for Amanzimtoti. I am referring to the possibility of changing paper stock into productive capital. This is very important, especially in these times and particularly for the farming community. I therefore do thank them very much for supporting this Bill.

*I also wish to convey my sincere thanks to the hon. member for Smithfield for his exposition of the reasons why, after due consideration, the Land Bank decided that it would accept this stock as security for bona fide farming purposes. I am very grateful for his clear exposition. I also listened attentively to the representations he made—the same representations were made by the hon. member for Amanzimtoti—on behalf of those who possess stock but do not intend going back to farming. The Bill before us makes no provision whatsoever for those people. Those people will have to negotiate their stock on the normal financial markets either at a premium or at a loss, depending on the market conditions and the prevailing interest rates. However, it has come to my attention that the S.A. Agricultural Union is at present investigating that very aspect of the problem. I have been informed that they are going to submit a very bulky memorandum to us in due course. We hope it will be short and concise and not as bulky as they have intimated. In that memorandum they will elucidate this matter further. When we receive that memorandum we shall give the matter the necessary attention.

Question agreed to.

Bill read a Second Time.

Committee Stage

Clause 2:

Mr. Chairman, there is an amendment printed in the name of the hon. member for Yeoville on the Order Paper. We will not be moving that amendment, but instead I should like to move the following amendment—

The motivation for this amendment is that recently there was a court case in which it was decided that in law the cession is of no effect unless it is accompanied by the certificate relating to the cession. In other words, for the cession to be legally perfected, it is necessary that the stock certificate should accompany the cession. If this amendment is accepted, I think it will make it easier for the Land Bank to take action in the event of a default. It ought to give the bank greater security in the event of default for, as I have pointed out, legally for a cession to be perfected, it is necessary that the stock should also be with the cession. I may mention that a pledge in good order is a preferred claim in terms of the Insolvency Act. I believe this is an amendment which will allow the Land Bank to act more quickly and with fewer legal hassles than would be the case if the amendment is not accepted.

Mr. Chairman, the hon. member for Edenvale was kind enough to discuss this amendment with me. The Land Bank had a very close look at it in consultation with the legal advisers, and I have decided that, as it is standard practice, I will accept the amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 4:

Mr. Chairman, I rise to speak to the amendment printed on the Order Paper in the name of the hon. member for Mooi River, who unfortunately is not here today. However, I am not going to move the amendment at this stage, but rather motivate the hon. member’s amendment. I should like to hear what the hon. the Deputy Minister has to say about it.

This clause fixes the maximum amount of advance which may be made by the Land Bank against security of stock issued by the Republican Government. In line 6 on page 4 it is stated that the amount of the advance which will be made shall not—

In simple terms this can be explained as follows: Let us assume a farmer was bought out by the Government, because his farm was required for consolidation, and the value of his farm was, let us say, set at R100 000, but he was paid out R40 000 in cash and R60 000 in stock. Let us assume further that this farmer—I am speaking on behalf of this farmer—desired to get back into agriculture and he wanted to buy a farm that cost R100 000. He would therefore like to have cash, but he only received R40 000 in cash. This was his dilemma: He had stock to the value of R60 000. I know that the hon. the Deputy Minister is going to say it was negotiable stock and he would probably have sold it, but I believe the interest on such stock is about 9%. The farmer might not have been aware of the ways to play the stock market and therefore he could have held on to the stock. In the meantime the market interest rate could have gone up to 18%—double what he is getting. This means that the value of his stock on the market has been halved; in other words, his R60 000 in paper money is now worth R30 000.

We now have a provision before us in which the Land Bank is prepared to advance the farmer cash against his stock, but the clause states that the Land Bank shall determine the value of the stock. In the prevailing market conditions the farmer is not going to get his R60 000, but R30 000. He is therefore caught, if I may use the term, in a cleft stick.

The amendment standing on the Order Paper in the name of the hon. member for Mooi River seeks the deletion of “value (as determined by the board)” and the substitution therefor by “parity value”; in other words, the Land Bank will advance parity value which in this case is R60 000. I know that from a banking point of view this will be unacceptable and I can appreciate that, but I am speaking on behalf of the farmers of South Africa who are caught in this dilemma. They believe and they feel that they have been “slenter”-ed—if I may use such a term. I should like to hear what the hon. the Deputy Minister has to say.

Mr. Chairman, I have a small problem with the amendment.

The amendment has not been moved.

But I have a problem with the amendment as it stands on the Order Paper. If we see it in its precise context—I shall deal with the Afrikaans text—it amounts to exactly the same as the existing wording.

Order! I have a problem because the hon. member has not moved the amendment. Technically I may not therefore permit the hon. the Deputy Minister to reply to it.

Mr. Chairman, since the hon. the Deputy Minister is not in a position to reply, I move the amendment standing on the Order Paper in the name of the hon. member for Mooi River, as follows—

When one looks at the Afrikaans text one notes that the hon. member’s amendment envisages the deletion of the words “waarde (soos deur die raad bepaal)” and their replacement by “pariteitswaarde”. The proposed section 26A would then read—

As the proposed section reads at present, it may not be more than the value as determined by the board. The amendment proposed by the hon. member says exactly the same as the clause as printed in the Bill. Therefore I think it is pointless, because it does not stipulate that it must be the parity value. The amendment of the hon. member states that it may not be more than the parity value. In effect, we are saying exactly the same, but whereas the hon. member proposes that it should be the parity value, we say that it must be the value as determined by the Land Bank. Let me explain why I prefer the present wording to be retained. In section 26 of the Land Bank Act as it reads at present, the procedure in terms of which the Land Bank carries out valuations where land is offered as security, is laid down. In section 26(1)(a), for example, reference is made to the fair value of that land as determined by the board. Section 26(1)(b) provides that in the case of State land, an advance made on the security of land shall not exceed four-fifths of the amount actually paid in respect of the purchase-price, plus four-fifths of the value (as determined by the board) of improvements made since the agreement of purchase. Section 26(1)(c) relates to State land held under lease, and in this case, too, it is a question of the value as determined by the board. In other words, what this amounts to is that where the Land Bank has to determine land values for the purpose of advances made against the sole security of land, it is standard practice to work on the value as determined by the board. I therefore consider it important that when it is a matter of advances that have to be made against the security of stock, we should also give the board the autonomy to determine the value of that stock. One of the problems the hon. member may have is that when the security is offered solely for the purchase of land, the buyer may lack capital. However, when we look at the proposed section 26B, which is really the important section, we see that this stock, together with the land being purchased, can be offered as security for the purchase of the new properties.

I think there are a few points that should be made in this connection. If the hon. member’s amendment envisages compelling the Land Bank to accept the parity value of that stock, we must accept two principles. In the first instance, the Land Bank is not a discount house. It is not an institution that offers discount facilities for Government stock. That is not the aim. The principle behind this concession is one of accommodation for the bona fide farmer enabling him to offer this stock, too, to the Land Bank as security for farming activities. It is not solely for the purchase of land. We must also make the point that this stock can be offered not only as security for the purchase of land but also as security for all farming activities as expounded in section 22 of the principal Act. I am therefore not prepared to accept this amendment, because it will not bring about an improvement, nor will it change the aim of the proposed section 26A as it reads at present.

Mr. Chairman, although I have sympathy with the point made by the hon. member for Amanzimtoti, we on these benches cannot accept his amendment, because I think it introduces a very bad banking principle. Let us look at the valuation of stock for banking purposes. If we accept the hon. member’s amendment and say that you are obliged to lend at parity value, you can have the following situation: Let us say that stock was valued at R10 000 and that there has been an increase in interest rates so that the market value of that stock is now, say, R6 000 or R7 000. If the hon. member’s amendment is accepted, the Land Bank will be obliged to lend R10 000 against security of R6 000 or R7 000. I appreciate the problem, but one of the fundamental criteria in a bank particularly is that it should be solvent and that it should have the discretion to lend money without breaching solvency regulations.

Order! Before the hon. member for Edenvale proceeds, I should like to inquire from the hon. member for Amanzimtoti whether he insists that his amendment stands.

Yes, Mr. Chairman.

Mr. Chairman, I am not sure whether we are talking on an amendment which is about to be moved or which has been moved. However, if we were to accept that amendment, we would be accepting a principle which would not only affect the Land Bank, but would in fact also be a dangerous principle as regards the solvency of all our banking institutions in South Africa. For that reason I regret that we cannot accept the amendment.

Mr. Chairman, that is all very well, but this question of stock must be seen in its true context. It must be seen against the background of the situation in which it was used. The farmer who accepted the stock as a method of buying him out to speed up the process of consolidation was in fact making a sacrifice and the trust of the Government is at stake in this regard. The farmer co-operated in acceding to that method of being bought out to facilitate the Government’s policy and this now puts him in a worse position than he would normally have been in. The situation in which he was asked to co-operate was of the Government’s making. We are now trying to make amends by making those bonds good, as regards their value, for him to make a purchase to replace the property which he has foregone in the interests of the entire country.

That farmer is now on the losing end. If the value of the bonds is to be decided upon by the board, taking into consideration the hon. member for Edenvale’s banking principles, there is no security attached to the stock and the Government in fact has not supported the very person who co-operated in this scheme to facilitate and speed up consolidation.

If the amendment is not accepted, I would say that the hon. the Deputy Minister and the Land Bank should have another look at this to see if they can bring about a situation to reaffirm the trust there should be in stock issued by the Republic Government. I must say that at present in the eyes of the farmers affected that stock is probably the worse kind of currency they could have come across. They have been put in a very embarrassing position and it does not redound to the credit of the country, the Government or anybody else. It is all very well saying that we must apply banking principles, or rather comply with them, and that we have to do this and that. Those principles might have their place in the financing of the country. What, however, also has a place is the sacred trust between the Government and the farmers concerned. This is not being met in this case and I would say that in order to put the situation, which is a very serious one to rights the hon. the Deputy Minister and the departments concerned must bring their ablest men together and do what they can in this regard.

Mr. Chairman, in the first place I think one should approach this Bill from the viewpoint that the Government is, in introducing this measure, trying to remedy a situation which caused the farmers embarrassment, and is seeking to give those farmers who, under certain circumstances, wanted to take up farming again and who were unable to offer the necessary security, an opportunity to do so. On the other hand one has a financing institution which, as the hon. member for Edenvale in fact put it, has to examine as a banking institution what security those farmers are able to offer. We know that the amendment is concerned primarily with the application of the Act as such, for example how this has to be done.

Surely we know that when interest rates dropped, certain payments were made by way of Government stock in order to ensure a profit on that Government stock. On the other hand, however, it is also true—and one should not lose sight of this—that in the present circumstances, while interest rates are rising, the capital value of that Government stock in essence has diminished. Now the farmers are experiencing real problems in discounting that stock.

The second aspect is that the ownership of the Government stock which is to be lodged with the bank as security, will not be transferred to the bank. The ownership of that stock remains with the farmer concerned. Consequently if interest rates were to change, the capital value of those Government stocks would change accordingly, something which the farmer could later utilize again to his own benefit. That is why I do not think that we should adopt an inflexible attitude in this respect and commit the Land Bank, which is an autonomous banking institution, in regard to securities, which could have a fluctuating effect. In the past the Land Bank has always revealed itself to have a sympathetic attitude to the farmer. Surely we know this. Consequently we can only hope that in the application of this legislation, we shall continue to experience the same sympathetic attitude on the part of the Land Bank, and that the farmers, for their part, as well as the Government itself, will be sympathetically disposed to certain actions taken by the Land Bank. However, as far as the financing aspects are concerned, I do not think that we can accept the amendment which has been proposed here.

Mr. Chairman, I can sympathize with the viewpoint expressed here by hon. members of the NRP. I have to submit, however, that that matter should be raised under a different Bill. I accept that hon. members of the NRP might have a good case, but whatever the rights or the wrongs of it one cannot change the basis on which financial institutions are regulated. This is the point. That they do have a valid argument, I agree. I do not think, however, that they can ask the Land Bank to solve their problems in this regard.

Mr. Chairman, I fully agree with what the hon. member for Edenvale has just said. From a pure banking point of view I therefore have to sympathize with the hon. the Deputy Minister and with the hon. member for Edenvale. This is, however, an opportunity of making out a case for those people who have been affected and who have suffered. That is why we intend to use this opportunity in order to put across their point of view.

Mr. Chairman, I do not believe I can improve on the arguments put forward by the hon. member for Edenvale and the hon. member for Ventersdorp. I believe they have made their point very, very well.

*I really cannot improve on it. They explained clearly exactly what the situation is. However, I think that the hon. member for Amanzimtoti and the hon. member for King William’s Town were arguing about an amendment which they did not move.

†Mr. Chairman, I should like to read out the provision as amended by the hon. member for Amanzimtoti. It reads as follows—

They suggest that no advance should exceed that value, but that that value should be determined by the Land Bank and the board. In other words, the amendment they have moved does not imply that the advance to be made by the Land Bank should be equal to the parity value of the stock. What they ask for is that the advance should not exceed the parity value of the stock. That is why I say that they are debating an amendment which has not been moved. The amendment they have moved, I cannot accept because it will not bring about an improvement of the clause. What is more is that what they are asking for in their amendment already exists in the clause as it stands at the moment.

Amendment negatived (New Republic Party dissenting).

Clause agreed to.

House Resumed:

Bill reported with an amendment.

Third Reading

Mr. Speaker, I move, subject to Standing Order No. 56—

Mr. Speaker, in the first place I should like to thank the hon. the Deputy Minister for accepting my amendment. As I said in my Second Reading speech, we welcome these steps that allow paper assets to be put to productive use because it is only when we put our assets to productive use that we create wealth and job opportunities. I think, as I have already pointed out, that it is very important that we do this in the rural areas of South Africa. I think too that, by passing this legislation, we are assisting in overcoming to some extent the criticism that Jonathan Swift levelled against politicians in general in Gulliver’s Travels, in that section that deals with the voyage to Brobdingnag and where he says—

Perhaps by passing this Bill tonight we have helped to a small extent to alleviate that criticism that Swift levelled against politicians.

Mr. Speaker, I wish to thank the hon. member for Edenvale for his kind words.

*I also want to take this opportunity to convey my sincere thanks to the hon. member for Ventersdorp and the hon. member for Smithfield for their contributions and for their support for this clause.

Question agreed to.

Bill read a Third Time.

Mr. Speaker, I move—

It has always been the custom to refer Bills amending the Water Act, 1956, to a Select Committee for investigation. As hon. members are aware, the same has been done in respect of this Bill. It is gratifying to know that the Select Committee accepted the legislation unanimously without any amendment, and in what I am told may be record time.

I want to take this opportunity to thank the chairman of the Select Committee, the hon. member for De Aar, and the other members of the committee for the support and speedy finalization of their task.

In order to regulate the water supply to consumers, the principle of establishing water boards was embodied in the Water Act of 1956, to very good effect. Because our country is poorly endowed with water resources, in-depth investigations have been carried out over the years into ways of supplementing our scarce water resources in order to meet the steadily growing demand for water, particularly for industrial and urban use. One possible supplementary source that has been identified is the reclamation of water from industrial and sewage effluent. Therefore, with a view to preventing the pollution of water resources and the ultimate use of purified water as an additional source of water, water boards have a considerable interest in the purification and disposal of waste water. Therefore it was an entirely logical development to provide for the extension of the powers of water boards to enable them, too, to undertake the purification and disposal of waste water, effluent and waste and, in point of fact, that is all that is envisaged by the legislation at present before the House.

†A situation has arisen in the Richards Bay area which makes the provision of facilities for the purification and disposal of waste water, effluent and waste on a centralized basis as a part of the infrastructure, extremely desirably from an economic and other points of view. Various large industrial concerns have already established themselves in the area, and it has also been announced that a large paper manufacturer is to establish a pulp and paper plant in the area. The nature of the industrial effluents and waste of these undertakings is such that the disposal thereof at sea would appear to be the most practical solution. This decision was arrived at after extensive investigations and research by, inter alia, the National Research Institute for Oceanology of the CSIR at Stellenbosch, the Sea Fisheries Institute of the Department of Agriculture and Fisheries, the Oceanographic Research Institute in Durban and the National Institute for Water Research of the CSIR in Durban.

It was decided that facilities, such as the proposed sea outfall scheme at Richards Bay, which are entirely aimed at the servicing of a particular area, should rather be undertaken and operated by a locally orientated body. Various alternatives were investigated in this regard, but the best solution appears to be that these facilities be financed, constructed and operated, as part of the infrastructure for the area, by a water board which, as previously indicated, has a direct interest in the purification and disposal of waste water, effluent and waste. A water board, namely the Mhlatuze Water Board, has already been established for the supply of water in the Richards Bay area. Such an arrangement will result in the same institution supplying water in bulk to the area, also having the responsibility to purify waste water and to utilize it as an additional source of water should it be required in future.

*The most important instrument for effecting the orderly utilization of water is the Water Act, 1956, which has been on the Statute Book for 25 years. In order to keep pace with the country’s dynamic development and adapt to changing circumstances, the provisions of the Act have been amended or extended as often as 16 times since its acceptance in 1956. The Bill at present before the House is the 17th amending Bill. The rationalization of the Public Service and the associated rationalization of legislation affords an outstanding opportunity for the consolidation of the Water Act which the innumerable amendments in the past have now made desirable. In view of this the services in an advisory capacity of Prof. J. C. de Wet, former professor in law at the University of Stellenbosch, who is widely regarded as an expert in the field of water law, have been obtained. He will act as consultant to the department in this important task. In the nature of the matter, this is an exceptionally complicated and time-consuming task but I have been given the assurance that excellent progress has already been made. However, the circumstances at Richard’s Bay which I have already sketched, demand urgent action, as hon. members will understand, and the amendments contained in the Bill before this House could not therefore be held over for inclusion in the consolidated and revised Water Bill which is being contemplated.

When we consider the two clauses of the Bill we note that the necessary provision is made in clause 1(a) to enable a water board to construct or acquire a scheme to purify or dispose of waste water, effluent or waste and to manage such a scheme. Paragraphs (b) to (f) are purely consequential amendments, while paragraph (g) regulates the establishment or construction of new schemes for the purification or disposal of waste water, effluent or waste within the area of jurisdiction of a local authority. This paragraph also stipulates publication in the Gazette of conditions and tariffs relating to the purification or disposal of waste water, effluent or waste. Although water boards are statutory autonomous institutions, hon. members will note that the conditions and tariffs must have the approval of the Minister before being published. Therefore the control of tariffs, among other things, is still vested in the Minister.

That, then, Sir, is a brief indication of the scope of the Bill.

Mr. Speaker, I think the hon. the Minister set out, in some detail, the motivation for this Bill. I therefore do not think it is necessary, from the Opposition’s point of view, to spend too much time on this. I think it should be passed without any obstruction whatsoever. It was accepted unanimously by the Select Committee, and if one looks at the Bill it is fairly obvious why this was the case. It is not a controversial Bill at all. In fact, the only controversy I can think of in regard to water is between those who think that fluoride should be added to it and those who do not, or between those who think too much has been added to their whisky and those who feel that too little has been added to the whisky. Water is, however, important and this is an important Bill. We have to appreciate that without water there would be no farming, no mining and no industry. There would, in fact, be nothing. The recycling of water is particularly important. One only has to think back to the report of the Club of Rome that looked at the diminishing natural resources in the world as a result of population growth and economic growth. I think that the value of what is being done here will become more apparent in many areas of our lives in which we are going to have to re-use our natural assets. It is encouraging to note—and I think it is the correct decision—that the Richards Bay scheme is going to be administered by the local body. I think that this is a good thing, especially when it comes to things like water affairs. We also welcome the announcement made by the hon. the Minister, in his Second Reading speech, concerning the rationalization of the law. We accept this Bill and will support it with pleasure.

Mr. Speaker, we in the NRP wish to support the Bill.

Mr. Speaker, I should like to convey my sincere thanks to the members of my committee for their excellent co-operation during the various committee meetings. I should also like to convey my thanks to Mr. Otto, the Director-General, Mr. Marais, the Deputy Director, and Mr. Le Roux of the department. I want to thank them for the able way in which they assisted the committee.

In conclusion, I also wish to thank the committee clerk for the good work he did for the committee.

Mr. Speaker, I thank hon. members for their support of this Bill and I thank the Select Committee for the exceptionally good work that has been done.

I realize that there are hon. members who have some difficulty with one of the aspects of clause 1. In clause 1(g) the following is stated—

However, in clause 1(a) the following more comprehensive wording is used—

However these words are left out of clause 1(g). That is what the hon. member is somewhat concerned about. The reason for that, I can tell you in all honesty, is that at the moment the Department of Water Affairs, Forestry and Conservation has a new sewage works at Hammarsdale, which has just been completed. It does not belong to the local authority but to the Department of Water Affairs, Forestry and Conservation. If, in terms of this clause, the local authority were to be given the right to decide what should be done with that water works, the local authority of Hammarsdale would be in a position to prevent the Department from doing as it saw fit. The water works does not belong to Hammarsdale but to the Department. I can also say at this point that it is the intention to transfer the new sewage works at Hammarsdale to the Umgeni Water Board. It is for that specific reason—the hon. member asked me about this—that the clause reads as it does at present.

Question agreed to.

Bill read a Second Time.

Committee Stage

Clause 1:

Mr. Chairman, on a point of information: According to the hon. the Minister this particular clause deals with the waterwork at Hammarsdale for sewerage disposal. The point on which I would like some clarity is: Could it be the intention of the Department of Water Affairs to actually move in in the area of a local authority where there is a scheme in existence that is running reasonably well? This is the point that worries me. I should like some confirmation from the hon. the Minister that it is not his intention to do so. That is all I want. I raise this as a point of information more than anything else.

Mr. Chairman, I have mentioned why there is a difference in clause 1(g). It is not the intention to take over any other waterworks without the consent of the local authorities.

Mr. Chairman, I rise to thank the hon. the Minister.

Clause agreed to.

House Resumed:

Bill reported without amendment.

Bill read a Third Time.

Mr. Speaker, I move—

Mr. Speaker, I think there are two points which arose in the Select Committee one of which was in fact discussed at the beginning of this year. I refer to the amount of R496 104,90 which the Select Committee could not recommend during the first session earlier this year. Subsequent to that the Select Committee received a report in respect of that amount and we then found it possible to recommend the amount for specific appropriation.

This amount, of course, relates to unauthorized Defence expenditure. It arose in a situation where people did not follow the normal procedures which are laid down in the departmental manuals. I do not think there was anything illegal about this expenditure as was subsequently determined, though it did occur in what appeared at the time to be very suspicious circumstances. The point that has to be made is that particularly in the case of Government departments it is essential that the procedures are followed, because where the procedures are not followed, one finds that public money is wasted. This is what happened in this particular account.

I only wanted to deal with this particular item and there are other hon. members on this side of the House who will deal with the other item.

Mr. Speaker, I think the hon. member for Edenvale put our position in regard to the Defence aspect fairly clearly and we shall not oppose the ratification recommended in the report. I should like to point out, however, that it is fundamental that if there are certain rules laid down, those rules must be obeyed. If the Treasury regulations are not obeyed it inevitably leads to trouble. We have a long history of problems which have arisen because Treasury regulations were not obeyed.

This particular case has a strange history. Troops had to be transported and a bus service was employed. The price was obviously too high, but no tenders were called for. The Treasury regulations were ignored and when tenders were later called for, eventually the same company tendered, but tendered at a lower price than they had been doing the work.

This indicated quite clearly that they must have been aware of the fact that they were getting away with it in those circumstances. The other matter which made it even more ridiculous was that one of the officers who was involved in this matter and had been participating in the events leading to the contract, shortly thereafter went to work for the bus company. It was not really so bad because he only stayed with the bus company for a short while and then he left it for financial reasons and, believe it or not, went back to the Defence Force. It was a set of circumstances which I think, required more than just an explanation. One thing is also clear and that is that there seems to be an impression in some circles that when one renders a service for certain Government departments one can charge almost what one likes. We have to be very careful that that impression is not sustained because if that happens the taxpayer will undoubtedly feel that his money is not adequately being looked after. It is very important that the taxpayer should have that feeling of confidence. We will accordingly support this recommendation.

Now, however, comes the second part of the saga and that part goes back to the Department of Information. Here we are dealing with a matter which has been outstanding for a long time and which, as far as we in these benches are concerned, we are not prepared to ratify in any circumstances. The situation here is that a certain gentleman by the name of Van Rensburg who has a business called Chris van Rensburg Publications, enters into a contract without the permission of the Tender Board and then advances the argument that his costs in connection with a certain publication have gone up and that he therefore wants more money. Not only that, but he agrees with the former Secretary for Information that he can deliver a smaller quantity of this publication instead of the quantity for which he tendered. All of this is absolutely against every rule that has been laid down by the Treasury for the conduct of these affairs. He then also is to be paid extra in those very circumstances. However, as if that is not enough, this is the same gentleman who was paid R30 000 in notes from the bottom drawer of a desk. He was paid R30 000 in cash. This is also the same gentleman who was paid the R30 000 in cash in circumstances from which it is quite clear that a letter was written in which he asked for an increase in the tender price. According to the evidence given, he then interviewed the former Secretary for Information upon which the Secretary gave him the money and arranged that a letter would be written to the effect that he could not be given an increase. This same gentleman is involved in this matter where we are now being asked to authorize this further expenditure. Not only that, but when one looks at the Year Book which is issued by the Republic of South Africa, setting forth its strength in regard to mineral wealth and who its peoples are, what is the name of the publisher that appears on it?

I will let you guess.

Yes, let us guess. It is the same Van Rensburg! Mr. Speaker, those hon. members are asking us in this House to ratify that sort of expenditure. As far as we are concerned this is not something we will support. I want to ask the hon. the Deputy Minister to take steps to see that this money is not paid because there is no justification for paying it. The matter involving the R30 000 is in the hands of the State Trust Board but there is no doubt that there is no legal basis for the recovery of this money. If one goes through the evidence it is clear that all the people now involved in this matter cannot be blamed. They have nothing to do with it and were not involved in this transaction. However, this is trying to take an easy way out. I do not want an easy way out. As far as we are concerned this money should not be authorized by Parliament and whoever has paid it out should be held responsible. If there is no authority from Parliament for unauthorized expenditure the Exchequer and Audit Act lays down what is to happen. That is the course that we say should be followed and that money has to be recovered from the people concerned.

With great respect, Sir, in the first case there was a mistake and the rules were not obeyed, but we are satisfied that the people who were in charge at the time acted bona fides and that there can certainly be no question of exacting a surcharge from those individuals, however strange the circumstances were. Nor can there be any question of exacting a surcharge from the existing people in the department. That we should, however, be involved with this particular man to whom I have referred and who is concerned with an episode in South Africa’s history which most of us here would like to forget, that we should be a party to now giving him more money, goes beyond anything that can be expected of us in these benches.

Mr. Speaker, the Select Committee on Public Accounts must act in accordance with the evidence at its disposal. If I may refer to the report of the Select Committee, as already indicated it refers to two amounts. The first is the large sum of R496 104,90 involving the Department of Defence. Now, I do not wish to differ with the hon. member for Yeoville or the hon. member for Edenvale. It is true that certain procedures which should have been followed, were not followed. The Select Committee adopted a very rigorous attitude in this regard and the Department of Defence is aware of this and tendered its apologies, and has indicated that there were specific circumstances which have to be taken into account. Accordingly, the Select Committee unanimously decided to recommend that this amount be agreed to.

The second amount is the small sum of R11 509. This has a long history, and perhaps for the sake of the record we should take a brief look at it. As the hon. member for Yeoville mentioned, it was an issue as far back as the third report of the Select Committee on Public Accounts in 1978. At the time the Select Committee did not see its way clear to recommending that this amount be agreed to. What was the situation? I should like to quote the standpoint of the Select Committee in its second 1979 report (paragraph 2(a)(vii))—

Concerning what, did the Select Committee not wish to make a recommendation? They did not want to recommend the approval of this amount because there was uncertainty as to whether a profit component was incorporated in the price increases at the time, as was contended by the department. Accordingly a ruling could not be made at that stage because the data were not available. What happened then? As the hon. member for Yeoville correctly said, there was a shortfall in the number of copies delivered. The reason for this—and I quote from that report of the Select Committee (paragraph 2(a)(iii))—was the following—

Therefore this is a very old story, Sir—

This is the amount at issue. They argued that there had been an escalation in prices and that that was why they had delivered fewer copies. The Select Committee decided that it was unsure whether the price increase had included a profit component. Accordingly at that stage—it was the end of 1979—the Select Committee did not recommend that this amount be agreed to. The matter was then referred back to the Treasury and the department.

This year the Treasury made a submission, and for the sake of the record I must quote this submission in full—

This is the evidence submitted to the Select Committee—

The delivery date that had been envisaged for this publication was February 1974—

The actual delivery took place between September and October 1975—

This is important. This amount did not include any profit component. Hon. members will recall that I said earlier that this was the aspect about which the Select Committee had certain reservations. The Select Committee had not been sure whether these increased costs had not perhaps included a certain profit component. After due investigation, however, the Treasury has found that these increased costs involved no profit component. I quote further—

Then the following is said—

In this regard I wish to agree with the Treasury. If this information had been available in 1978 we should probably have recommended that this amount be condoned. The Treasury then proposed that we authorize this unauthorized amount of R11 509. There is nothing sinister in this whole matter. We know that it was linked to the Information scandal but we know, too, that it was linked to the name of a publisher whose bona fides we later questioned. The Select Committee had no choice but to act on the basis of the evidence before it, and on the evidence before it the Select Committee could only come to the conclusion that it had to recommend that this amount be authorized.

Mr. Speaker, and so the cover-up continues, authorizing funds paid out by the former Department of Information. It is extremely difficult to believe that a recommendation of this nature can be put before this House. However, before I go on to deal further with that particular matter that the hon. member has spoken around, between and about without actually managing to say very much, I want to deal with another matter. The only notes that I made about what he said was that … [Interjections.] No, he did not give us all the facts. I shall give some facts as well. However, what the hon. member did say was that the amount of R11 509 was a very small amount. For a fat cat Government I can believe that it is a very small amount and I can also believe that in terms of overall parliamentary appropriation, even for one department, it is a very small amount. But for millions of people in this country R11 509 represents riches beyond belief. On a strict division something like 575 people could live on that amount for one month at R20 per month.

The first point that I wanted to make in this debate was that we seemed to have come across in the Select Committee a means of doing things at the end of the year which we do not believe is a very good idea, i.e. to take funds which perhaps should have been reported as funds that needed to be authorized and to put them in a suspense account. This seems to be a new method of circumvention which we in these benches do not approve of at all and we believe that it must be drawn to the attention of this House. What one does if one finds that one has unauthorized expenditure to a certain amount and one cannot find the authorization for this expenditure, is that one then puts that amount that would be reported as unauthorized expenditure into a suspense account. Secondly, having put it into that suspense account one leaves it there and gets these funds on to the parliamentary Vote for the next year. Then, once the budget has been passed for the next year, one takes the funds out of the suspense account as they have now been authorized and everything is hunky-dory. We do not believe that this is a good practice and we believe that it should be discontinued.

I want now to get back to Mr. Van Rensburg and his shenanigans and in this regard I wish to move the following amendment—

It is fairly obvious that what we have done here is to subtract the amount of R11 509—this very small amount to those hon. members—because we do not believe that this amount should be authorized. Let us just go back to see the calibre and nature of the transaction and of the company that we were dealing with. I refer to the supplementary report of the Commission of Inquiry into Alleged Irregularities in the Former Department of Information. On page 50 of that particular report we read—

On the same page, in paragraph 11.34, we read—

This was the book Stepping into the Future—

This R30 000 that we have been talking about and which had been paid out to Van Rensburg is still under query. On page 6 of the last report of the State Trust Board mention is made of the specific case under the heading “Die geval Chris van Rensburg”. The situation is, therefore, that the State Trust Board is still investigating the case of Chris van Rensburg.

Mr. Speaker, on a point of order: The report of the State Trust Board to which the hon. member has just referred is not relevant to the discussion of the report which is now before the House.

Mr. Speaker, on a point of order: The point is that if Mr. Van Rensburg owes the Government R30 000 on the strength of the argument of the hon. member for Port Elizabeth Central then surely one does not pay him R11 000. There is such a thing as setting off amounts and one does not pay a person money if he still owes money. The fact that he owes money to the State is, therefore, relevant as to whether this amount should be paid. Anybody with a limited amount of legal knowledge, with respect, would know that.

The hon. member may proceed.

Sir, as the hon. member for Yeoville has just said, there is still money owing by this gentleman and here the Select Committee for Public Accounts is seeking to authorize a payment of R11 509 to him. I believe that the nature of the person to whom the payment of this particular amount is authorized, is also important, and in this regard I want to quote an hon. member of the NP, although admittedly, he said this before he became a member of that party. The hon. member Mr. Aronson, when he was still representing the Walmer constituency which he subsequently lost to my hon. colleague here behind me, said this on 21 April 1978 in Hansard, col. 5263.

Did he send a telegram?

He sent many telegrams. The hon. member Mr. Aronson said this on that occasion—

If his evidence is so bad, Sir, how can we accept his word that he lost money on this particular publication? How can we accept the submissions he made to get paid extra money? In view of what the hon. member Mr. Aronson said on that occasion, as it appears in Hansard, I believe that he should vote against authorizing this money. [Interjections.] The use of such words cannot be swept under the carpet. On that occasion the hon. member attacked Chris van Rensburg and attempted to white-wash the Government, which he did not succeed in doing. However, I believe that this House should seriously consider supporting the amendment I have moved, because the background to this whole affair is so distasteful that if this Parliament now authorizes the payment of moneys to somebody as deeply implicated in this scandal as Mr. Van Rensburg then the public of South Africa will have every right to object.

Amendment put, Upon which the House divided:

Mr. Speaker, I move—

The Administration of Estates Act, 1965, provides for simplified administration procedures in the case of estates with limited assets, since such estates do not require the same extensive control, involving greater expense, as bigger estates do. Accordingly, section 18(3) of the Act confers upon a Master of the Supreme Court the discretion, in the case of an estate of which the value does not exceed R1 500, to dispense with the appointment of an executor and to give directions as to the manner in which any such estate shall be liquidated and distributed.

The devaluation of money since 1978, when the amount mentioned in section 18(3) was increased from R600 to R1 500, has meant that fewer and fewer estates with limited assets are qualifying for the shorter procedure. For this reason, such estates are being unnecessarily burdened with the greater expense of the full administration process and Master’s offices are being burdened with unnecessary work. In order to utilize properly the provisions of section 18(3), it is necessary to increase the amount of R1 500. Property values have increased considerably since 1978. At the moment, an estate with a value of less than R15 000 normally consists only of movable property such as furniture, a second-hand car, and so on. There seems to be no reason why the full administration process should be obligatory in such cases. In clause 1 of the Bill, it is proposed that the amount in section 18(3) be increased from R1 500 to R15 000. This is in accordance with representations received from the Association of Law Societies, the Association of Trust Companies, the Association of South African Clearing Banks and the Masters of the Supreme Court.

†Hon. members may have noticed that, contrary to the 1978 increases, the Bill now before the House does not also provide for an increase in the amounts prescribed by sections 18(4), 29, 30, 34, 35 and 80 of the Act. In this regard I wish to point out that interested parties are still being consulted about these amounts and that proposals for increases may also follow in those cases. Hon. members will, however, have noticed that the increase now proposed in respect of section 18(3), is substantially larger than one that would merely have corresponded with the inflation rate and I am hesitant to act similarly in respect of the other sections without having received the opinions of all concerned in those cases too. In the meantime we have a manpower shortage in our Master’s Offices as well as in that part of the private sector dealing with estate matters, and to postpone the amendment now proposed will mean the postponing of substantial relief in the workload in these sections.

Mr. Speaker, this Bill should not delay the House long. It deals with the right of the Master of the Supreme Court to finalize an estate which is a small estate, an estate which can be called intestate, and one in which the Master is having difficulties in appointing an executor.

In the normal course of events, as the hon. the Minister has explained, when these circumstances arise and when the amount of the estate is R1 500 or less, the Master has the right to give instructions as to the finalization of the estate without recourse to publishing certain notices in the Government Gazette and going through a long-winded procedure. As the hon. the Minister has explained, the only significance of the Bill before us is in the fact that the amount of the estate before it can qualify for this sort of action is now being increased to R15 000. This is, as we know, quite a jump, but I think that with the increase in property values, the fast inflation rate which we have been experiencing and the drop in the value of money, the explanation offered by the hon. the Minister is absolutely reasonable and in order.

I must admit I was somewhat surprised that some of the other sections which are relevant to small estates were not amended at the same time. However, the hon. the Minister has anticipated the question and has explained the reason. We accept that explanation and look forward to the possible amendment next year of those sections he mentioned, particularly sections 18(4), 29, 30 and 34. In the meantime we should just like to state that we support the passage of this Bill and shall not obstruct it in any way and shall see it through all stages as quickly as the hon. the Minister would like.

Mr. Speaker, I have no fault to find with the arguments of the hon. member for Sandton, for actually this proposed legislation concerns the very necessary extension of the discretionary powers of the Master of the Supreme Court. It will mean that there will henceforth be a considerable increase in the number of smaller estates that can be administered in terms of a shorter procedure. It is interesting that this process has been established over three eras. The first era began shortly after Union, with the passing of Act No. 24 of 1913, which provided in section 65(1) that this limit would be £100. This first era was actually a long one, because it lasted more than half a century. It was ended in 1965 by the passing of the very important principal Act, which provided in section 18(3) that this limit would be R600. A shorter era then followed, which ended in 1978, when this limit was increased to R1 500. Now we have come to the latest era, in which this limit is now being raised to R15 000.

One could ask oneself what the legislature had in mind in laying down these limits. From the legislation which is before the House it is very clear that the intention was to bring the limit into line with the current value of money. What is more important, however, is that the discretionary powers of the Master of the Supreme Court are also being extended now.

How will this work in practice? In practice it will mean that far more estates can be administered according to this new and shorter procedure. In terms of this shorter procedure, notification in the Government Gazette and in a local newspaper of a meeting convened in order to appoint an executor if there is no testament is dispensed with. It also means that if the Master of the Supreme Court exercises his powers, no executor is appointed. Finally—this is the important procedure—it means in practice that the representative of the Master does not have to administer the estate according to the old customary rules, but that he can make use of a shorter process, thereby saving a lot of money. This procedure has been working very well for more than half a century.

One wishes to take this opportunity of congratulating the hon. the Minister and his department on the fact that a further element is now being introduced into estate legislation by extending the discretionary powers of the Master of the Supreme Court so that a larger number of estates can be administered in terms of this shorter procedure. We welcome this step because it is an easier, quicker and cheaper procedure for the interested parties in the estate, and in addition it will also mean that the work load resting on our officials in our Master’s offices will be considerably lightened. It is a great privilege for me to support this Bill.

Mr. Speaker, we on these benches will be supporting this amendment. It is a very good amendment and will facilitate the passage of small estates. The increase of the figure from R1 500 to R15 000 is a very realistic increase in bringing about relief for the small estates as well as in facilitating, as the hon. the Minister mentioned, the workload in the Master’s office, which is of course very important at this stage since tremendous problems are being experienced in this regard. This is something we have discussed before.

I wonder, Sir, whether you would allow me to mention in passing an additional measure in respect of small estates which could save great expense. This would involve another clause. Would that be in order?

Order! No. The hon. member cannot be permitted to introduce another clause at this stage.

I shall then refer to the hon. the Minister himself.

Mr. Speaker, I thank the hon. members who have participated in the debate for their support.

Question agreed to.

Bill read a Second Time.

Bill not committed.

Bill read a Third Time.

Mr. Speaker, I move—

During the discussion of the Vote of the Department of Transport on 11 September 1981 a great deal of attention was given to the unhealthy financial position of the National Roads Fund, which had, in turn, had an adverse effect on road building programmes owing to unavoidable delays. If I speak a little longer than usual in submitting this short Bill it is because this problem is so important to me that I should like to discuss it fairly comprehensively.

We in South Africa justly pride ourselves on the fact that we are more developed than any other African State, have more telephones and vehicles, a larger per capita income, etc. However, this brings obligations. We cannot promote the growth of the RSA’s economic activities without mobility.

Road transport is a basic requirement for mobility in respect of agriculture, the industrial sector, commerce, tourism and even for recreation. Without an effective road network, road transportation is greatly hampered.

It is therefore a source of concern to me that from time to time I have to hear it being said that the brakes ought to be applied in the field of road building considering the large amounts that have been spent on it during the past few years.

Recently for example an envisaged sports complex between Soweto and Johannesburg was announced. Even the first phase of this complex will call for an additional investment in road building of approximately R15 million, and neither the National Road Fund, nor the Urban Transportation Fund, nor the Johannesburg city council, nor the Transvaal Provincial Administration will be able to finance it from their normal annual funds without sacrificing other and higher priorities. This is but one of many similar development projects which are placing a tremendous strain on the capacity of the various road authorities.

I am by no means advocating that we should now go to extremes and impose unnecessarily high taxes on the already heavily burdened motoring public. I am merely asking for understanding for the dilemma in which the road authorities find themselves.

The rate at which the real income for road financing is diminishing is a source of concern to all road authorities. Road building costs are increasing at a rate of approximately 25% per annum, whereas the income accruing to the National Roads Fund is only increasing by between 6% and 8% per annum. The result is that the fund is faced by an annual decrease of 18% in real income. In addition to the increased cost of new road works, the maintenance costs on routes with high traffic loads have increased tremendously, especially where these routes are now approaching the end of their initial design lives. In the more developed countries it is standard practice that the establishing of a country’s main road network is financed by means of direct levies on fuel, which is also the case in South Africa at present.

With the establishment of the National Road Fund in 1935 approximately 17% of the total cost of fuel was allocated to the fund. Today this figure is a mere 4%. Under current conditions it is imperative that road priorities be revised throughout on a sound economic basis in order to obtain optimum benefits for users. As far as national roads are concerned, the Department of Transport is therefore giving constant attention to this aspect.

I can give hon. members the assurance that the National Transport Commission uses expenditure from the National Road Fund in a highly responsible way for the development of an effective and economically justified national road system. The National Transport Commission, in cooperation with the CSIR’s National Institute for Transport and Road Research, is constantly geared to making adjustments to standards and norms of national roads in order to give the public that is paying directly for the roads the best value for their money.

In support of this statement I wish to point out that the National Transport Commission recently completed the first phase of a comprehensive study of the total rural road requirements in the Republic. The result indicates that in order to ensure that the future economic growth of the Republic is not retarded by a lack of adequate road transport facilities, an increase in expenditure of between 20% and 25% at 1981 rand values is essential.

†In line with current economic conditions, as well as revised concepts in respect of road capacity analysis, the policy of constructing new national roads as freeways only, has been rescinded in favour of a policy wherein the design standard most appropriate to traffic conditions, both current and predicted, has been adopted.

The financial conditions pertaining to the National Road Fund during the past six to nine months, as described above, and the fact that national road contracts are generally of long-term duration—three to four years—and make allowance for recompensing contractors for the effect of inflation, put the National Transport Commission in a most unenviable position, particularly because of the continued rate of inflation. The Treasury could not make allowance for an increase in the rate of fuel tax accruing to the fund, neither could it recommend that money be appropriated to the fund by Parliament during the current financial year. The fund has therefore found itself in the position of having to make arrangements for a loan of approximately R25 million during this financial year to cover previously awarded contracts. In addition to this, contracts originally programmed for letting to tender during the 1981-’82 and 1982-’83 years have had to be postponed.

Many other projects, though programmed for construction at later dates, are likely to suffer similar or worse delays. In addition, should the request by the Department of Transport for additional funds to be appropriated by Parliament on behalf of the National Road Fund for expenditure during the 1982-’83 financial year not be acceded to, it is likely that many projects will be still further delayed. This subject was discussed at length when the Vote of the Department of Transport was debated on 11 September 1981, and I shall therefore not dwell on it much longer.

To raise money by way of loan, is one way of overcoming the present difficult position in which the National Road Fund finds itself. Loans must be repaid, however, and therefore the only permanent solution to my mind is to increase the levy on fuel which accrues to the fund—presently 2,354 cents per litre. It is a proven fact that the cost of providing a road infrastructure amounts to only 15% of the total investment in the road transportation industry. The balance of 85% consists of the maintenance costs in respect of the vehicles. An increase in the levy of say 1 cent per litre in favour of the National Road Fund will therefore have a very limited effect on the cost of road transportation, but will be of immense value to the road user.

*In the new political dispensation, in which a constellation of Southern African States is being envisaged, the National Transport Commission can also play a useful role beyond the borders of the Republic. As a matter of fact the commission is already advising neighbouring States, in the course of its normal activities in the field of road building and allied matters. This kind of activity can begin to increase, with resultant financial implications which the National Road Fund will not be able to afford, particularly at the moment. To undertake such aid on a sound basis, it is desirable that Act No. 54 of 1971 be amended, and that is what clause 2 is doing. Such aid will of necessity take place at the request of the other country and will then take place in terms of an inter-Government agreement, which will mean that the Minister of Foreign Affairs and Information and the Minister of Finance will also be involved in formulating the agreement.

Mr. Speaker, from what the hon. the Minister has said and from the Bill itself, this would appear to be a Bill of necessity. The hon. the Minister dealt at some length this evening with the problems with which the National Transport Commission is confronted in regard to its roads programme. We also know that earlier during this session, during the discussion of the Transport Affairs Vote, the hon. the Minister made a statement in which he again indicated the problems in connection with our road building programme. He told us then, as he has now, that road construction costs are increasing at the rate of 25% per annum whilst revenue accruing to the fund is only increasing by 6% to 8% per annum. Therefore he announced at that stage that it was necessary to review the road programme and to effect certain cut-backs in that programme.

The hon. the Minister has introduced a Bill which basically contains two clauses. In the first instance it is to enable the National Transport Commission to raise loans from sources other than those contemplated in section 2(2) of the existing National Roads Act. The section concerned says of the National Roads Fund that money would normally be raised by way of loans authorized by Parliament. That would be the basic source from which money for the programme would be derived. In addition, section 2(1)(a) of the existing Act lays down a formula in terms of which there is a charge against the State Revenue Fund of an amount of 2,354 cents of the customs or excise duty on one litre of petrol and other fuel. That basically is the source from which the Fund derives its money at the present time. Now, however, the hon. the Minister has introduced a Bill which provides that in order to meet the increased costs on our road programme as against the limited revenue accruing, it is going to be necessary to give authority to raise loans from outside sources. Loans are one thing and they may well be necessary. I think the hon. the Minister made out a strong case that in the existing circumstances he had no alternative but to negotiate a loan of fairly considerable proportions, namely R25 million to cope with the present programme. However, loans have to be redeemed and this is a matter which is of some concern to me. I should like the hon. the Minister to tell us how these loans are going to be redeemed. In his speech this evening—the hon. the Minister was good enough to give me a copy of it—there is a passage which I find a little ambiguous. The hon. the Minister himself says—

That is the formula that is written into the Act. He then says—

The hon. the Minister says “an increase in the levy of 1 cent per litre will therefore …” so he is talking about something in the future. My first impression on listening to him and reading this paragraph is that what the hon. the Minister is telling us is that this is going to mean an increase to the private consumer, the person using petrol, of 1 cent per litre in the price of petrol. I may be wrong, Sir, but it would also seem to me that if this is not so and if this is going to come from the existing levy, from the State Revenue Fund, then the formula contained in the existing Act will in fact have to be amended, because that presently provides for 2,354 cents per litre. I want to be quite clear on what the hon. the Minister is proposing. I hope that the hon. the Minister is not saying that the problems in this regard are going to be passed on to the motorist and the road user, because it is clear and I think also common cause that the motorist and the road user in South Africa are already very hard hit as a result of the very high price of fuel. About 40% of the petrol price at the pump that the user has to pay covers levies of some kind or another imposed by the Government. I hope that the hon. the Minister will give us an assurance that the speech that he made here tonight and the problem that he has presented to the House, does not mean that there is going to be a further increase in the price of petrol to be paid by the motorist and the road user.

This covers clause 1 of the Bill that relates to authority that the hon. the Minister seeks to enable the commission to raise loans from outside sources.

Clause 2 of the Bill allows the commission to extend its activities beyond the borders of the Republic. In his speech tonight the hon. the Minister spoke about the new political dispensation relating to a constellation of Southern African States. He said he believed that the National Transport Commission would have to play a role beyond our borders in this respect. I was interested in the hon. the Minister’s comments and in his dedication to the transport services having to be extended beyond our borders in order to assist with road development in those areas. However, I find it difficult to reconcile the attitude of the hon. the Minister of Transport in this regard tonight with the attitude of the hon. the Minister of Transport last week when in the Railway debate I raised the question of what our transport services should be doing for our neighbouring States. In a sense this is indicating a recognition of responsibility for transport services and roads in respect of territories beyond our borders, and provided that this can be done economically as far as the Republic of South Africa is concerned, one can see that there is need for these further powers that is to be given to the National Transport Commission.

With these thoughts, Sir, we on this side of the House are going to support the Second Reading, but I should like the hon. the Minister to indicate in particular what the real position is in regard to the price of fuel and how the loans to be raised are going to be redeemed. That is very important indeed. I hope that the redemption is not going to be a charge on the motorist and the road user in South Africa.

Mr. Speaker, I am pleased that the hon. member who has just resumed his seat intimated that the official Opposition supports the Bill, and I thank him for that. I do not wish to deal at this point with the objections he raised because in his Second Reading speech the hon. the Minister spelt out very clearly what the circumstances were which compelled us to negotiate this loan.

Perhaps one could best sum up this situation by reading how Thomas H. MacDonald, the Commissioner of the Bureau for Public Roads in the USA, put it—

If ever there was a country in which this statement is more valid than in the USA, then that country is South Africa. Every new development that takes place in our country, whether it be the building of a new sporting complex, a new Sasol or some development in the economic field, results in an increase in the demand for roads. It has also been proved in the debates that have taken place in this House in recent months that transport plays a very important role in a modern State. An efficient transport system is of the utmost importance for the prosperity, convenience and welfare of any community, and the freeway is the biggest single source of fuel conservation in the field of transport. Accordingly, a Bill of this nature is necessitated by the prevailing circumstances. It is a pity that we have had to take this course and I want to ask this evening that we introduce an increase in the price of fuel as soon as possible in order to solve the problem. With the aid of this loan we can deal with certain problems in the immediate future, but in the meantime we are building up a backlog in regard to the maintenance of our roads and the building of essential new roads. In fact, this has already been pointed out by other hon. members in the course of the debate on the Transport Vote. I therefore contend that the time has come for us to give serious attention to an increase in the price of fuel so that the National Road Fund may be strengthened.