as Chairman, presented the Report of the Select Committee on Posts and Telecommunications.

Report, proceedings and evidence to be printed and considered.

Mr Speaker, I move:

As will be observed from the long title, the Bill comprises a variety of matters. As a result of the changes in the national service system brought about by the Defence Amendment Act, 1982, it became necessary to bring the general regulations for the SA Defence Force and the Reserve up to date. It was therefore decided to revise the General Regulations substantially, also with regard to previous amendments which had to date been left in abeyance. When the General Regulations were studied and compared with the Act, it was found on the one hand that the regulations did not correspond with the Act on a number of important issues and, on the other hand, that the Act itself contained certain anomalies and omissions which inhibited its practical implementation. As the General Regulations are derived from the Act, it also became necessary to review the Act thoroughly and set it right, and the proposed amendments are largely the result thereof. The amendments are mainly of a technical nature and do not involve matters of fundamental principle. For this reason I considered it expedient to refer the measure to a select committee before Second Reading.

Mr Speaker, I wish to thank the hon members of the select committee, and in particular the chairman, for the thorough way in which the amendments have been dealt with. I have been advised that complete consensus was reached among all the members of the committee concerning the amendments that were accepted. This is a demonstration to me of the understanding that exists among hon members of all parties in this House with regard to Defence Force matters.

The measure that has been brought before the House is an improvement in all aspects on the original Bill and will eliminate the problems that are being experienced with existing legislation.

Mr Speaker, I want to tell the hon the Minister at once that we support this amending Bill and that we are doing so after we had the opportunity on the select committee to discuss the amendments in details with both senior officials of the Department and other hon members of this House.

The fact that I am able to stand up today and say that we support the legislation without moving any amendments, proves to me as well that the committee system works and works well. I therefore want to thank the hon the Minister for referring the legislation to a select committee prior to the Second Reading. I also want to convey my thanks to the officials of the Department and the senior officers who gave evidence before the committee and answered so many questions for us.

I think the hon the Minister will agree with me today that an amending Bill introduced in Parliament which contains 52 clauses amending the principal Act has probably reached the stage where that legislation should be re-examined. The principal Act consists of as many as 154 sections, and if one adds the schedules to that, it is probably one of the longest and most complex pieces of legislation on our Statute Book. I wonder if I should not recommend to the hon the Minister right now that within the next few months serious consideration should be given to examining the legislation in its entirety and referring it to the law advisers with the object of re-writing it so that it will read more logically and so that most of the provisions in the schedules may also be incorporated in the legislation.

Recently the hon the Minister also announced that the Geldenhuys Committee had been appointed to investigate all aspects of the South African Defence Force, and I just wonder whether this would not also be the opportunity to subject the legislation to an urgent investigation. I think this would be advisable.

The success of the select committee again underlined the necessity for a standing committee on defence matters. I know that the hon the Minister is shying away from such a committee and that he has also done so repeatedly in the past. He will have to realize, however, that in a few months’ time the new constitution will provide that such a committee will have to be appointed, and that there will be no way he will be able to get around this.

I did not count the amendments, but I am sure that more than 50 of them were agreed to by the committee. If the legislation had not been referred to a select committee, but had been discussed by the House, there is no way in which so many amendments could have been agreed to in the House in the sense and in the spirit in which those amendments were agreed to on the select committee. I want to recommend most strongly to the hon the Minister that he give attention to this matter.

†To come back now to the Bill, Sir, which, as I have said, we shall be supporting, I think it is necessary for me to highlight some of the many defence aspects that are affected by these amendments. As far as clause 2 is concerned, we see that it seeks to regulate when and under what conditions the SADF may be used to carry out police functions. This is actually an improvement on the present situation. The SA Defence Force will henceforth only be able to be used on police functions when they are being employed in terms of section 3(2)(a) of the principal Act, namely, firstly, in defending the Republic; secondly, in preventing or suppressing terrorism; thirdly, preventing or suppressing internal disorder or, fourthly, preserving life, health or property. If my interpretation of this is correct, and I trust that it is so, then the SA Defence Force will henceforth be more restricted than before vis-à-vis the carrying out of police duties. I believe that the hon the Minister will agree with me that it is imperative that the SA Defence Force, and in particular conscripted troops, should in no way be associated with functions other than the four that I have listed a few minutes ago as it is unfortunately so that other police functions, whether we like it or not, and I am not blaming anybody for it, are often seen to have political connotations. For example, if my interpretation is correct, then the military would never for instance be required to involve itself in activities such as, for instance, checking passes or travel documents of Black citizens. I see the hon the Minister is nodding his head, and I am very pleased that he confirms it. We are in agreement that it would be tragic for the SA Defence Force to be involved in that kind of situation.

In dealing with the discharge of members of the SA Defence Force and members of the Permanent Force, historically speaking a distinction has been made between officers and other ranks. The reasons for this have become rather obscure, but I understand that as an officer in the days of yore, in the past, as it were bought his commission and bought his gear, he would not, having made that investment, easily have resigned his position. Also being loyal in many cases to the Crown, he certainly would not have done so in times of crisis or in times of strife. With the other ranks, however, historically speaking, the situation was somewhat different. Often other ranks consisted of mercenaries; often they were poorly paid and had to be fitted out and fed at great expense. Often they were, I understand unreliable and care had to be taken to ensure that during times of crisis they did not simply leave the Army in which they served. To prevent this they were required to buy themselves out of the Army. These people, often being spendthrifts, seldom had the money to do so, and in this way the Army often succeeded in retaining their services. I want to make it quite clear that when I am looking at historical developments I am not talking about the SA Defence Force but about armies in general. As I say, in this way the Army retained the services of other ranks. However, in South Africa, as elsewhere, times have changed. Officers no longer buy their commissions, nor are other ranks what they used to be.

In the select committee I tried to equate the condition of discharge of officers and other ranks just to find that amongst my colleagues tradition weighed more heavily than my power of persuasion. So while I believe that section 12(1) of the Act has been more clearly phrased, essentially the Bill remains as it was when it went to the select committee before Second Reading.

I accept that we shall stick to the tradition of officers, as it were, deciding when they ought to leave and that other ranks shall have to buy themselves out. I believe that it is important that one should record in Hansard what the situation in fact is. We find that other ranks do have to buy themselves out. The sum is no longer large. As I have pointed out, it is more a question of tradition than a real way of preventing them from leaving. I think we should read into Hansard the fact that if in other ranks one wants to leave the SA Defence Force after one year, one has to pay R100 to buy oneself out. After the second year one has to pay R200; after the third year, R150; after the fourth year, R100; after the fifth year, R150; after the sixth year, R25; and thereafter R10. We therefore see that tradition prevails. I do not know whether these amounts really prevent people from leaving. Perhaps when we have another look at the Defence Act next year or so, we should very seriously consider whether this situation of people having to buy themselves out is really important and has validity.

Getting back to section 12(2) of the principal Act, I think certain problems are created with which the hon the Minister may deal when he replies to the Second Reading debate. Section 12(2) basically provides that where an officer or somebody in another rank receives special training in pursuance of an undertaking to serve for a specific period after such training, he shall not be entitled to be discharged until that period of service has been completed or until he has paid the Government an agreed amount which I should imagine will more or less equate with the cost of his very special training.

I have in practice often found that there is confusion in this regard. Often young men have either written or ‘phoned me and I have passed their problems on to the department. They have told me that when handing in their resignation because of wanting to leave, they found that at the point of leaving they still owed more time. After investigation one finds that these are the people who have undergone special training, and having undergone special training, they thereby extended the length of service which they should provide. Often they seem to be uncertain as to their contractual commitments. I should like to suggest to the hon the Minister that the department should make absolutely sure that where people do enjoy the privilege of special training, they do not only enjoy a privilege, but also have to fulfil a commitment which they either have to serve in time or, when they leave, is going to cost them money. I think this will prevent misunderstanding and will therefore cut down the amount of work of the department.

In respect of section 20 of the principal Act we on this side of the House have often said that conditions of service should be made sufficiently attractive to encourage young men and women voluntarily to make themselves available for service after having completed their basic national service period. We have often argued that if this could be done, it would have the advantage of utilizing people who have some professional military training and that the SADF would be able to use these people usefully. In section 20 provision is made that people can make themselves available for a period of up to two years for, as it were, temporary full-time service in the SADF. The drawback has always been that those who made themselves available for a further two year period got no credit in respect of the 720 days they still had to serve for the two year period for which they made themselves available on a voluntary temporary two year basis. The select committee regarded it as a sensible suggestion that credit should be given and an amendement to that effect in fact went through. In terms of section 22(9) credit can be given and I would like to know from the hon the Minister how much credit he plans to give a person who serves for this additional two year period. I do not know whether decisions have been made in this regard. I would like to suggest to the hon the Minister that the credit for the two year period should at least be as much as one cycle of service, in other words, a minimum credit of 120 days. I feel that this would be a minimum reasonable amount of credit which can be given to someone who makes himself available for a further two year period. Obviously, if the department recommends that such a person should get more credit, I would have no objection to it.

Another point I would like to deal with concerns the system provided for by Parliament last year whereby persons who for religious reasons do not wish to participate in any war, could apply to a board of religious objection for allotment to do community service. This service would be administered by the Department of Manpower. We have learnt that for various reasons the board has experienced certain difficulties, one of which is the unwillingness of certain religious denominations to serve on the board. We now come with an amendment to section 72A in clause 36 which seeks to eliminate at least one such problem and which would be helpful to those applicants who now find themselves in the position where they believe, and perhaps we believe, they legitimately have a religious reason why they cannot serve in any army and yet they cannot be heard by the board for religious objection because members of their own denomination are not prepared to make themselves available to serve on the board. If we can therefore by way of amendment in this Bill overcome this drawback we on this side of the House will welcome it. We therefore support the amendment provided for in this Bill. Perhaps hon members will be interested to know that in reply to a question yesterday we found that there are certain people who are waiting to appear before the board of religious objection and who cannot do so until this Bill which we are dealing with today is in fact passed. It is pleasing to know that, even if we are talking about only one or two people, Parliament today is passing an amendment by which those people will certainly benefit.

To get on with the Bill, I want to turn to clause 39 which concerns section 83 of the principal Act. In dealing with this clause, it was our point of view and our point of departure that a substantive commission could only be conferred on a citizen by the State President after that person had successfully completed a probationary period. That is not a new thought. In fact, the Bill contained that as well. In addition, such commission is permanent and such commission shall only be cancelled or be done away with under the most unusual and serious circumstances, and then only when the officer has been notified in writing of any complaint or charge made against him or of any planned action proposed to be taken against him. The Bill goes into a fair amount of detail to ensure that such an officer will not lightly lose his commission. The amendments to the original provision in section 83(3)(c) have our full support.

While in practice a temporary commission in the SADF is of managerial importance and carries disciplinary weight to the same extent as a commission conferred by the State President, it is nevertheless conferred on him by the Minister and only achieves its true status when it is substantiated by the State President and a deed of commission bearing his signature or a replica thereof is issued. There are other differences between a substantive commission and a temporary commission. The former, for instance, can be conferred only on a citizen while a temporary commission can also be conferred on a person who is not a citizen of the country. Let us say a young man comes into the country at the age of 17. He knows that in five years’ time, whether he likes it or perhaps does not like it—let us say in this case he does like it—he will become a South African citizen and will be committed to doing military service. At the age of 18, having completed his schooling, he may decide to go for it and complete his national service. If such a man wants to become, is eligible to become or has the capability to become an officer, he can obviously only be appointed to that position by the Minister. I have argued and thought erroneously that there should be a time limit after which the commission would have to be substantiated by the State President. I in fact thought that a period of three years was certainly enough. However, looking at the problems, some of which were highlighted by the officials in the committee, we found that a young man such as the one to whom I have just referred would lose his commission because he would after three years not yet be a South African citizen and therefore his commission would not be substantiated. In his case, obviously, the commission conferred on him by the Minister would have to be able to last or remain applicable until such time as he becomes a citizen. That is one instance. There are other instances where a person might have the special expertise which is required, for example a computer or an electronics expert. He may not be a South African citizen and we may want to appoint him in a position where he needs to have the authority of an officer. In that case he also needs to enjoy the benefits of a temporary commission conferred upon him by the Minister and, if necessary, that will have to be reviewed from time to time.

There are other amendments which we are convinced are also good amendments. Section 92 of the principal Act provides for the mobilization of the Reserves and the commandos for the combating of terrorism, internal disorder or other emergencies. Section 92(1) sets out the circumstances under which the State President shall call out the whole or portions of such detachments. Section 92(2) determines the circumstances under which the Minister can cause such action to be taken. We note that the Minister can only do so for a period of four days, after which the State President will obviously have time to take action. A new thought is incorporated in the Bill whereby the Chief of the South African Defence Force, or an officer acting on his authority, can in a particular magisterial district call up certain components of the SADF. We noted with satisfaction that this can only be for a period of 24 hours.

When we read this clause initially, we were worried—I believe other hon members on the select committee felt the same—that a junior officer should have such an awesome responsibility. To call out the Citizen Force or the commandos in a magisterial district is after all a very weighty decision. We debated in some detail whether a limit should not be placed on the rank below which an officer will not have such an awesome responsibility. It was difficult to be convinced, but when one weighs up the circumstances which could prevail—we do not expect war to break out, I hope we are moving in the opposite direction—but there are times when disasters of some sort can occur and when it will be necessary to make use of trained and available manpower who are prepared to serve. Taking into consideration these conditions, we support the proposed amendments. I particularly want to point out to the hon the Minister that we are aware of the fact that this is a very heavy responsibility, and I appeal to him to ensure that this right which relatively junior officers will obtain, will not be abused.

I now want to refer to another recommendation which we welcome, namely clause 48. The position at present is that a member of the South African Defence Force who is injured or wounded in the course of his duty, is cared for by the South African Defence Force even after the period of his call-up has expired. We also note that he will be remunerated for the period during which he has to recover. We now have a new provision here, which we welcome, namely that the period in which he has to recuperate and which goes beyond his call-up period, is credited to him as if he were doing service. I think that is only fair. We on this side welcome that provision. It is perhaps a bit overdue. Perhaps it was an oversight, or perhaps administratively he received credit in the past. I think that has been the position up till now. If it is so then obviously we are happy that the Bill now puts the matter right and that the administrative measure has now been given substance of the law.

We cannot talk about the Bill without also referring to that part of the Bill which was scrapped completely. I am not going to make a meal of it, but clause 27 of the previous Bill provided that members of the Permanent Force Reserve and the Active Citizen Force Reserve would be equated, and that under certain conditions they would then be able to be called up to do specialist training. When we saw this provision the committee—I am not talking for myself only—was most concerned. We heard evidence from senior officials of the SA Defence Force and during discussions established that at this point in time it really was not necessary for that provision to be included. It would have meant the several thousand additional young men would have been in a position whereby an additional commitment could have been placed on them. I am very happy to say that after some discussion the committee was unanimous in its decision that it would scrap that provision, as we could happily do, without creating a situation in which further manpower was taken out of commerce and industry to be used in a situation which I will not say is counterproductive, but certainly may have been a waste of manpower. In fact, what finally convinced me was the answers to two questions which I put to the hon the Minister, namely that during last year and the preceding period none of those on the Permanent Force Reserve were called up for specialist training. There therefore really seemed to be no need why people who had completed their national service or Citizen Force commitments should be made available for further specialist training. I think that is perhaps the most important breakthrough achieved by the Bill.

I am very happy to say that with some reservations, which I have raised and which I should like the hon the Minister to reply to, we on this side of the House will be supporting the Second Reading.

Mr Speaker, we should like to express our appreciation to the hon member for Wynberg for his party’s support for the legislation. I shall deal in a moment with a few of the observations he made.

I should like to avail myself of this opportunity to thank hon members, of all parties, who served on the select committe and participated in the discussion on this legislation very sincerely for the opportunity we had to hold a frank discussion with one another and to reach consensus on the amendments to the legislation. I also want to convey my sincere thanks to the office bearers and officers of the SA Defence Force, who helped us with this legislation, for their contribution and their expertise. I should also like to thank the secretariat of Parliament, who helped us with the documentation and handling of the legislation, with the preparation of the amendments and the printing of the amended Bill.

The hon member for Wynberg referred to clause 27 as it initially appeared. The intention of the clause, as we understand it, was not to place an additional burden on the citizenry. However, it could be interpreted to mean that an additional burden would be placed on the citizenry, and it could create the psychosis that inroads were once again being made into our manpower’s time. The hon member also referred to the police service which clause 2 in particular deals with. The object here, too, is not to make policemen of our Defence Force men, but to afford them protection in the task they have to carry out.

In his Second Reading speech the hon the Minister correctly stated that the adjustments to the legislation were primarily of a technical nature, but there are a few aspects I should like to single out because they are aspects which will contribute to enhancing the efficiency of the SA Defence Force. I should like to mention certain aspects, specifically in connection with clause 2. Firstly, there is the rearrangement of the four primary functions of the SA Defence Force which are set out in section 3 of the principal Act, and the one secondary function, namely the police function, which is specifically linked to the four primary functions. It is concerned with the safeguarding of the State. The police function is now being clearly defined with reference to the Police Act of 1958, and limited by regulation.

In clause 8 a clear distinction is being drawn between a commission conferred upon officers and officer’s rank. Up to now there has always been confusion over the word “commissioned rank”. There is a difference between the words “commissioned” and “officer’s rank”. In various clauses there is also a clearer definition of the composition and organization of, service in and discharge from the Permanent Force, Citizen Force and commandos in order to bring about greater uniformity.

Clause 28 deals with the limitation of compulsory service by members of the Reserve to three months per calendar year instead of 12 months. Clause 29 deals with the rendering of voluntary service by reservists. Reservists may now offer their services voluntarily and it is now being made possible for the Defence Force to make use of their services. In clause 32 provision is being made for the allocation of national servicemen to the SA Railway Police Force on the same basis as national servicemen are at present being allocated to the SA Police. This is a very important clause because the national servicemen are now being afforded the opportunity of rendering the same service to the State in the Railway Police Service as they are at present rendering in the SA Police.

The hon member for Wynberg also referred to clause 35. Here the issue is once again the protection of the national servicemen. It is provided here that if none of the theologians or chaplains serving as permanent members on the Board for Religious Objections are of the applicant’s church denomination, the board may nevertheless consider the application without co-opting a theologian from the applicant’s church denomination if no such theologian is prepared to serve on the board. This eliminates a serious problem in connection with the composition of the board, and quite rightly so. I believe there are national servicemen who at present are unable to utilize the opportunity to appear before the board as a result of this deficiency, but in future immediate attention can be given to their needs.

Finally, Sir, provision is being made in clause 41 for all members of the military police, in the performance of their police function within their own limited jurisdiction, to be vested with basically the same functions, powers and duties as the civilian police. This is an important amendment in connection with the performance of the duties of the military police in the limited area in which they have to operate.

It is a pleasant privilege for me to support this legislation.

Mr Speaker, it is a pleasure for me to speak after the hon member for Standerton, who was also the chairman of the select committee. On behalf of my party I want to thank him for the neat way in which he managed the select committee. Under his chairmanship we, as representatives of the various political parties, were able to succeed in preparing legislation with which all of us are satisfied. The select committee demonstrated that we were able to co-operate in arranging the statutory position so that the South African Defence Force could function at its best within that framework. Consequently I want to thank the hon member for Standerton as far as his conduct as chairman is concerned.

I also want to convey the very sincere thanks and appreciation of our party to General Viljoen and his senior officers who assisted the select committee and who demonstrated to us that they did not adopt rigid standpoints but that they were prepared to listen to objections in respect of certain aspects and they also displayed a great deal of understanding for the standpoints of all the political parties. We also thank them very much.

The CP wants to emphasize today that when the South African Defence Force prepares itself or takes action to defend the honour and the territorial integrity of the Republic of South Africa, or of South West Africa which at present falls under the jurisdiction of the Republic of South Africa, the SA Defence Force can rely on the unflinching support and loyalty of all members of the CP in this Parliament and also outside.

The CP is proud of the quality of leadership and the enterprising spirit which is discernible in the SA Defence Force. Recently we paid a visit to the operational area where these facts were in fact brought home to us. In particular we became thoroughly aware of the strategic value of the presence of the SA Defence Force in the northern areas of South West Africa. The Defence Force has played a wonderful and outstanding role, not only militarily speaking, but also for the sake of the overall development and the creation of infrastructures in the northern areas. The value to South Africa of the SA Defence Force in South West Africa is far greater than one can calculate in rands and cents.

The CP gladly supports this legislation. We also want to say that the Defence Force is for us too an instrument with which the right of self-determination of a people is guaranteed. Consequently, we are a little heartsore when we support this legislation because this is the last Act which is going to be piloted through a White Parliament. [Interjections.] In the new dispensation, Defence becomes a general affair, and in future all laws affecting the Defence Force in South Africa will, I want to tell those whining (tjankende) hon members, be approved by a multiracial tricameral Parliament.

Order! The hon member must withdraw the word “whining”.

I withdraw it, Sir. All laws will have to be approved by a multiracial tricameral Parliament. Legislation affecting national service will have to be approved by all three Chambers. The hon member for Standerton said that we were able to reach consensus on this legislation, and we are grateful that we were able to do so. We accept that the hon member could perhaps be’ the chairman of a standing committee on defence matters, and that when we have to reach consensus on a standing committee or a joint committee of the new Parliament on this type of legislation, particularly as far as national service is concerned, that hon member is definitely going to experience problems as far as the members of the Coloured and Indian Chambers are concerned. They are outspoken against military service. We in these benches would like to keep the Defence Force out of politics, but leaders of the Coloureds have already said that they are going to use national service as an instrument, in the Cabinet and in Parliament, for bringing the Black people in here as well. I am mentioning this here. These are realities which hon members opposite and we on this side are going to encounter on the road ahead. On the road ahead hon members opposite will have to reach consensus with the Coloureds and Indians on national service, and possibly the national service of the Whites only, because if those people refuse to do national service, there are going to be problems.

You are just being sour about it.

That is why I want to tell that hon Deputy Minister, who is pulling such a sour face, that it grieves one to think that it will perhaps be impossible to reach consensus in such a Parliament.

Do not be bitter about it.

No, I am not being bitter about it. I am bitter about the fact that the hon the Minister of Mineral and Energy Affairs was instrumental in this White Parliament, which until today had full self-determination over every law affecting the SA Defence Force, now having to disappear and become part of a multiracial tricameral Parliament. That is what I am grieving about. [Interjections.]

Mr Speaker, may I ask the hon member a question?

No, Sir, I do not feel like any questions. I say it is a pity and I feel a little heartsore that this is the last piece of legislation, affecting the Defence Force, which will be dealt with by a White Parliament.

That is an old story.

It is an old story, but I tell the hon member for Bloemfontein East that we shall keep on using this old story to call them to account.

[Inaudible.]

Order! Did the hon member for Stilfontein say that the hon member who is now speaking was a “houtkop”?

Sir, I said he was a “houtboom”.

The hon member must withdraw that.

Mr Speaker, I withdraw it.

Mr Speaker, I should like you to ask that hon member what he meant by that, because he is the hon member who recently …

Order!

Mr Speaker, I should like the hon member to say what he meant by that.

The hon member can settle the matter with him after this debate.

Are you giving me permission to do so?

The hon member has my permission to do so.

Thank you very much. The other evening I wanted to ask the hon member politely what he had meant by that interjection, but he then refused to walk out with me. Thank you very much, Mr Speaker, for giving me permission.

I am not talking about that kind of walking out.

There is another matter which I should like to bring to the attention of the hon the Minister, something I find a little disturbing. Recently, during the discussion of the Defence Vote, the hon member for Swellendam referred to the political affiliations of certain officers in the SA Defence Force. Here I have a report from Die Vaderland which I think does the SA Defence Force and its image a great deal of harm, and I should like the hon the Minister—and I am talking to him as the political head now—to adopt a very strong standpoint against this. An article under the headline “Weermag tree dalk op teen lede in AV” appeared in Die Vaderland of 13 June 1984.

Are you their spokesman now?

Do you have any objection to that?

Yes.

The report read:

Col Du Plessis is the son of the late Oom Humphrey du Plessis, who represented Kuruman in this House for many years. I think he was a member of this House for 19 years. These people are officers in the commando and over the years they have sacrificed a great deal of their spare time for this organization. They are people who are proud officers of the SA Defence Force. They are also farmers and are part of a community. If these people join organizations they have every right to do so. I do not know whether this report is true, but I think that this kind of report does the Defence Force a great deal of harm.

Since the SA Defence Force does not consists of members of the NP only, and since members of all political parties serve in the SA Defence Force, this kind of reporting must be avoided.

Political parties such as the AV?

That hon member is very worried about the AV, but the AV is a cultural organization and not a politcal organization. [Interjections.] I want to ask the hon member whether the Rapportryerskorps is a political organization, since the hon member for Mossel Bay is the chairman of that organization.

No, it is not, of course not.

I want to ask the hon member whether the Afrikaner-broederbond is a political organization, since Prof De Lange, the chairman of that organization, expressed himself in favour of the new constitution.

No, it is not.

Some of the people whose names were mentioned here were still enrolled members of the NP who also joined the Afrikanervolkswag.

Dig up the weapons.

I know that part of the world and those people. I want to make an appeal to the hon the Minister and the SA Defence Force.

Dig up the weapons.

Order! That remark has been made twice now, and I think we all heard it.

Sir, I want to make an appeal to the hon the Minister today. The Defence Force is South Africa’s Defence Force. We all want to be proud of it. We should all like to serve in it proudly. We should all like to have our sons receive training in it and be able to serve South Africa as proud members of the SA Defence Force. If the hon the Minister is going to allow this kind of thing and allow himself to be shouted at by hon members like the hon member for Bloemfontein East, then that hon member and the hon the Minister is doing a great deal of harm to the SA Defence Force. I want to ask him very courteously today to be careful about this. I also want to make an appeal to the newspapers to keep their hands off the SA Defence Force because the Defence Force belongs to all of us.

Mr Speaker, before coming to the Bill I think I must reply to some of the remarks made by the hon member for Kuruman. I want to say two things to him. Firstly, if one talks of defence and the security of South Africa, I should like to see our Coloured, Indian and Black citizens playing a much bigger part in providing that security, in providing that defence for the whole of South Africa. To complain that this is now the last time that defence will be dealt with by a White Parliament and to regard with horror the fact that Coloured and Indian South Africans will participate in future defence debates is, I think, the most short-sighted attitude towards our defence in South Africa that it is possible to take. I would like to see an even greater participation …

Can I ask you a question?

Sir, I will give the hon member a chance as soon as I have finished the sentence. When people participate in defending your country with you, surely they are entitled to participate in the decision-making which concerns that country and its defence. The hon member may ask his question now.

Mr Speaker, is the hon member aware of the fact that the Rev Alan Hendrickse’s stand on the matter of national service is that he is opposed to it and that he will not allow any Coloured to be drawn into national service?

Yes, I am aware of it. I am also aware of a lot of things that are said by that member’s own party and its friends in the AWB, lots of things with which I personally disagree. I have heard members of the PFP say things about Defence with which I totally disagree. Does that mean that they are not to participate in select committees and in debates on defence, because one of their members or even leading figures have said things with which one may disagree? That was a stupid question and typical of their closed-mind approach. South Africa can be grateful for the Coloured, Indian and Black people who serve in our Defence Force and who contribute to the safety and security of South Africa. The hon member for Kuruman talks about not dragging defence into politics. He says that the CP does not want to drag defence into politics. He then makes a speech in weeping terms about this being the last debate in which a White Parliament will deal with Defence. If they had been, like I happened to be for a period, serving with the Cape Corps in Abyssinia and Eritrea they would have been, as I was, damned glad that Coloured soldiers with rifles and machine guns we had taken from the enemy helped to protect our lives from those who were shooting at us. I bet they would have like to have had them, just as their Voortrekker forefathers welcomed the support of the Coloured people who trekked with them into the hinterland of South Africa. If they had served in the 4th Indian Division with the 27th Gurkhas, they would have been darned glad to have had a so-called Indian, or what they would probably call by another name, side by side with them. I would rather be fighting side by side with a Gurkha than with some South Africans I know.

Having said that, I would like to return to the Bill. I want to associate myself with the remarks that have been made about the select committee, which once again demonstrated the wisdom of sending Defence matters to a select committee. We were very badly divided when we started in that select committee on one or two issues. I want to compliment the hon member for Standerton who was the chairman and to express my appreciation for the opportunity to serve with all the members of all the parties in that select committee. We served with one objective, namely to seek agreement. As nearly always, the select committee demonstrated that one can find consensus if you are sincere in looking for it. I also want to associate this party with the appreciation expressed to the Defence Force officials, particularly to the Chief of the Defence Force, who is a very busy man and has tremendous responsibilities, and who had yet found time to attend our discussions personally. On one occasion he was “on parade” in the select committee at eight o’clock in the morning having flown down that same morning from Pretoria in order to attend. I should also like to express my appreciation to General Holtzhausen, General De Wachter and Brigadier Knipe for their contributions to and co-operation with the select committee.

I do not intend to follow the example of the hon member for Wynberg in dealing with the Bill clause by clause. It is an agreed measure. It is here for all to see. The changes that were made in the select committee have all been dealt with and I think it is superfluous, as the hon the Minister did, to go through the Bill clause by clause and deal with each clause and what it does or does not achieve. I should, however, like to refer to the suggestion made by the hon member for Wynberg of going through the Act and bringing it up to date. I should, however, like to take that further. I should like to see the Defence Act consolidated. It is now a mass of amending Acts and, unless one uses Butterworths, there is no way in which one can really follow the Defence Act as it stands. If we are going to wait until its final amendment, we will wait forever. As circumstances change, so the Act itself has to be changed; defence is just one of those subjects. Even though there is at present the Geldenhuys Committee and changes may flow from that, I think the time has come to consolidate the Act and bring together the 20-odd amending Acts in an up-to-date and cohesive entity.

The changes contained in this Bill are largely technical. Some are linguistic. I appreciate the support I obtained from the select committee for amendments—these were perhaps finicky at times—in respect of the question of English usage as opposed to the literal translation of Afrikaans terminology. Those who look at the amendments of the select committee will see that 20 to 30 of them are terminological to bring into the English version the military usage of terms rather than the linguistically literal translations. I think that the relevant amendments have improved the Bill. That is, however, another aspect that can be improved further when the Act as a whole is dealt with.

I have nothing further to add, other than that this party obviously, having supported the measure in the select committee, will support it now in all its stages. We believe it is an improvement, that the points of difference have been eliminated from it and that it will help to deal with the gaps which exist following the changes last year.

Mr Speaker, I want to thank the hon member for Standerton as chairman of the select committee for having succeeded, as other hon members spelt out very clearly here, in submitting a Bill to this House on which there is absolute unanimity among the parties. Perhaps that did not appear to be the case here, but I am talking about unanimity in respect of the statutory amendments and not in respect of the other aspects that were raised here. I want to thank him sincerely for his contribution in this connection, and I want to associate myself wholeheartedly with those hon members who expressed their thanks to the chairman of the select committee.

As I said earlier, and as other hon members also pointed out, most of these statutory amendments are merely of a technical nature or are a consequential amendment. However, each one is essential for the effective administration of the SA Defence Force. The hon member for Standerton singled out the most important amendments and consequently I shall not do so again. If one has to judge by the amendments effected by the committee it may seem to uninformed persons, those who have no knowledge of this matter, as though there are quite a number of amendments which, as the hon member for Wynberg also said, were concerned with splitting hairs. Hon members must remember, however, that that aspect sometimes makes all the difference between good and bad legislation. Without wishing to offend the legal draftsmen, I think that the committee did good work in clarifying the legislation and in causing it to be placed on the Statute Book. I want to thank all members who served on the select committee for their contribution in clarifying and improving the legislation.

The hon members for Wynberg and Durban Point referred to the fact that over the years select committees have made a sound contribution to defence legislation, and will also be able to do so in the new dispensation. I am speaking under correction, but I have an idea that this is the first time in history that an amending Bill on defence was referred to a select committee prior to Second Reading. It makes no difference, but it was a good experience. I want to agree wholeheartedly with hon members that serious consideration should be given to this in future, particularly if one looks at all the clauses. All the political parties co-operated very well here, and in that way saved time. The most important aspect is that the ultimate product was better than it would have been if it had not been referred to a select committee.

The hon member for Wynberg also pointed out that the Defence Act may perhaps have to be revised in its entirety in order to bring it up to date. The hon member for Durban Point also referred to this. It is a very valid point. I said approximately three years ago that the Defence Force would have to give serious attention to this matter. This is one of the reasons why these amendments were made. I agree that this is one of the tasks to which the Defence Force will have to give priority and undertake so that the legislation can be brought up to date. I want to thank hon members for their support in this respect.

The hon member for Wynberg also referred to tasks which are primarily police tasks, and asked whether the Defence Force would also be involved in them. Security forces have a security task to perform, and according to law the Defence Force has certain tasks, and the police have certain tasks. However, the two are mutually supportive, and the one is not trying to take over the tasks of the other. The hon member referred to individual tasks which were actually police tasks. They will be carried out by the police. But the Defence Force will always have to act in a supportive role if one bears in mind that the ultimate object is the safety of the Republic of South Africa.

The hon member also referred to the history of the matter of non-commissioned officers who have to buy themselves out compared to officers who can simply resign and do not have to buy themselves out. If one takes cognizance of the career of the non-commissioned officer—I am referring now to the junior non-commissioned officer and not to the senior non-commissioned officer—one frequently finds that during periods of economic pressure a person resigns from his post, receives his pension and subsequently rejoins the Force after the cash amount has been received. This was one of the many reasons why an amount was determined for officers wishing to buy themselves out of the Defence Force. It must be borne in mind that career commitment among non-commissioned officers, particularly junior non-commissioned officers, differs from that of officers, and that is also a reason for that amount having been determined so that there is no unnecessary fluctuation in respect of the years of service of a Defence Force member.

The hon member also referred to the special training. The hon member was correct when he said that the Citizen Force and commandos should not be involved in special training and have to pay a certain amount for it. I am pleased that the Act has been amended accordingly.

However, this is one of the aspects which gives rise to concern when it comes to the Permanent Force. A Permanent Force officer or non-commissioned officer is sent abroad, where he attends a course which could cost anything up to R200 000. That member may then return, resign and become a civilian. That R200 000 investment can never be recovered. There must be a return on such an investment, and that is why the concept of “special training” has to be better defined. It is possible that regulations in regard to this aspect will be drawn up. The individual will then know that if he is selected for special training, he shall have to pay an amount. This aspect also applies in respect of the Permanent Force only, and not in respect of the Citizen Force or commandos.

The hon member for Wynberg also asked whether a person who had rendered voluntary service of two years could not obtain credit for 120 days, which is actually equivalent to the maximum number of days for which he has to render service over a period of two years. I am quite willing to look into this matter. I shall consider it sympathetically. However, I do not think that it will really be an incentive for such a person. The hon member is actually talking about a person who has rendered national service for two years, has then rendered voluntary service for two years and who then receives 120 days credit for the second period of two years. It would have paid him far better to have joined the Permanent Force for a period of four years and then to have served further in a Citizen Force capacity. However, I am prepared to request the Defence Force to investigate whether the 120 days is a strong enough enticement. I think that is what the hon member for Wynberg had in mind. He wants to give that person who is going to serve for a longer period an enticement. I am quite prepared to investigate this, because it would pay the Defence Force and the country far better to have a person in service for a period of four years instead of two years. I accept the hon member’s suggestion, and we shall look into it.

The hon member for Wynberg also referred to the period of 24 hours within which an officer may call up his subordinates in the case of emergency before reporting his action and receiving approval for it from his superiors. The hon member pointed out, quite correctly, that this could happen with a view to civil protection or acts of terrorism or war. In the past this need very seldom cropped up. The hon member must bear in mind that when we talk about junior ranks, one is thinking of circumstances in which a person with a junior rank is temporarily occupying a senior rank. That is a very difficult distinction to make. Fortunately there has so far not yet been a problem in this connection. I do not think it will be a problem in future either.

The hon member for Kuruman referred to an article which appeared in Die Vaderland. I did not write the article, and the conclusions drawn in the newspaper are not mine. Consequently I do not know why I should reply to the conclusions drawn by the newspaper. However, I want to make it clear that what is very important to me in this country—and I cannot see how any person from any political party can differ with this—is that security is of primary importance. Party-political actions must be of secondary importance. That is the cardinal point. We cannot allow confusion here by elevating partypolitics above the security of the country. In addition, a detailed staff administration policy in this connection has been drawn up in the Defence Force and made known to all officers. All officers know about it. One must bear in mind that we are talking about various officers here, of those in the Permanent Force, the Citizen Force and the Commandos. What is applicable to officers in the Permanent Force is not necessarily applicable to those in the Citizen Force and the Commandos. In addition there are also various officers of various ranks. What is applicable to the commanding officer is not necessarily as applicable to the platoon leader, a junior rank. The important facet, however, is that the activities of these officers, usually prominent people in their communities, should not prove an embarrassment to the Defence Force, particularly as far as party-political activities are concerned. Security is of cardinal importance.

I have already replied to the points of the hon member of Durban Point.

Consequently I want to conclude by thanking the hon member for Wynberg, the hon member for Durban Point and the hon member for Kuruman for the support of their parties for this measure. If one looks at the proposed amendments by the select committee then it is clear that in respect of some of the clauses a considerable difference of opinion existed among the parties. Yet they were able to reach an accommodation in order to ensure in that way that the best possible measure was passed. For that, too, I want to thank the hon members. By acting in this way, we, as Parliament, are not only doing the SA Defence Force a great service, but this is also a demonstration to those who are directing their hostile gaze at us that all the representatives in Parliament—I am referring to all of them, regardless of political affiliations—stand united behind the SA Defence Force.

I want to assure the House that the SA Defence Force also has great appreciation for this. To every member of the SA Defence Force it is of course an inspiration to know that, in performing their tasks, they can rely on the support of every hon member of this House, provided of course they do so in a responsible way.

Question agreed to.

Bill read a Second Time.

Bill not committed.

Bill read a Third Time.

Mr Speaker, I move the motion standing in my name on the Order Paper, namely:

I have to some extent tried to motivate the instruction during my Second Reading speech but I would now like to go into this in a little more detail in the hope of persuading the House to extend the scope of the Bill. As we all know, the marital power is to be abolished for all future marriages except marriages applying to Blacks. These fall under the Black Administration Act of 1927. We on this side believe that exactly the same arguments against the marital power, which I shall to some extent detail a little later, that apply to the application of marital power to future marriages are also quite obviously relevant to existing marriages. There can be no logic in retaining marital power for existing marriages when one has accepted that the marital power is no good for future marriages.

I want to point out that the parliamentary select committee, several of whose hon members I see here today, had many hours of discussion on this particular issue. After lots of arguments and counter arguments, the select committee in the end accepted unanimously, as the hon member for Mossel Bay rightly pointed out during the Second Reading debate, that the marital power should be abolished for existing marriages as well. That was a motion moved by the hon member Mr Schutte and it can be found on page 34 of the select committee report. It is true that I then moved an amendment. I hope the hon the Minister is listening because I was very annoyed with him during his reply to the Second Reading debate when he inferred that I had made no objection about the exclusion of Black marriages during the seclect committee’s proceedings, because I moved that the whole matter of Black marriages be referred back to the Law Commission. I will, however, come back to that when I discuss the question of Black marriages. I only moved that resolution after we had had long arguments on the question and after I had tried to get Black marriages included in the discussion on the abolition of the marital power. That too appears on page 34 of the select committee report.

This happened to be one of those clauses which the hon the Minister, in his wisdom or lack of it, decided to take out of the Bill which was recommended by the select committee and which was published in the Gazette and referred back to the public for general comment. It has now been finally excluded from the Bill before the House, and I consider that to be a very great pity indeed.

When one examines the report of the Law Commission, one finds very cogent arguments in principle against the retention of the marital power. I want to detail some of them because I think they ought to go on record, and because I believe that there are no better arugments against the retention of the marital power than those advanced by the Law Commission.

But they refer to future marriages.

Yes, I am coming to that. Displaying a remarkable lack of logic because surely the same arguments must apply in principle to existing marriages—which is what the select committee ultimately accepted—the Law Commission only recommended that the marital power be abolished for future marriages. However, it gave no reasons for so doing. It merely made a bland statement in this regard which one will find in its report. From page 60 onwards we have all the arguments against the retention of the marital power and yet, on page 63 of its report, the commission states:

That is the abolition of the marital power:

In other words, no reason was given at all although the commission advanced so many cogent reasons as to why it was against the retention of the marital power in principle. It noted all the reasons, and one can read them from page 60 onwards in the commission’s report and also, earlier in the report, from page 33 onwards. I do not wish to read the whole of the commission’s report. It is here for any hon member who wishes to examine it. However, briefly, it covers the position of a woman who has no contractual capacity, in fact, less contractual capacity than her unmarried teenage daughter. It covers the unfavourable position of a woman in a marriage with the marital power, and it compares this with the position of a guardian and ward and states that the wife under the marital power is in an unfavourable position by comparison with that of a ward and a guardian where the guardian has to take into consideration the interests of the ward in every action that he carries out. There is absolutely no comparable duty imposed upon a husband to observe the interests of the wife when administering the joint property. That was one of the important arguments advanced by the Law Commission. Moreover, the Law Commission stated that it had received strong arguments against the retention of the marital power. On going through various memoranda which all of us on the select committee received, one noticed that the overwhelming number of memoranda were in favour of the abolition of the marital power in existing marriages as well as in future marriages. As is to be expected, more particularly all the women’s organizations, the major women’s organizations in this country, the Vrouefederasie, the National Council of Women, the Union of Jewish Women, the Legal Status of Women Committee, the Business and Professional Women’s Club—I can go on mentioning them—were all in favour of the abolition of the marital power.

What about the Kappiekommando?

Probably not the Kappiekommando. [Interjections.] I would not like to say that the Kappiekommando was in favour of the abolition of the marital power. As we know, they adopt a very strict and fundamentalist point of view in regard to practically everything, and I may say that I have had some interesting exchanges with Mrs Van Zyl in this regard by way of correspondence. Anyway, never mind the Kappiekommando. The major women’s organizations were all against it. Of the other organizations, like banks, insurance companies, etc, not all, but the majority were against it. Nedbank, for instance, was against it and, interestingly enough, a woman judge was against it and a minority report, of course, of the SA Law Commission itself, including the present Chief Justice, and, I might add, a prestigious law firm in Johannesburg. Now the interesting thing is all of them advance the nonsensical argument that one cannot have two captains on the bridge. We saw that over and over again in the SA Law Commission’s minority report which was signed by an hon gentleman who is now the Chief Justice. This prestigious law firm and the woman judge all used this absurd argument that one cannot have two captains on the bridge. What amused me was that on looking at the letterhead of this prestigious law firm they have 16 …

Do not look at me.

No, it is not the firm to which the hon member for Yeoville belongs. When the hon member stops interrupting me I shall get on with it.

You are bound to get a vote against you.

That is not allowed. There is no free vote. Some of the members of the select committee might vote for this instruction if a free vote were allowed. Indeed, I think they are duty bound to do so since this was their opinion on the select committee. But I shall not embarrass them by putting them to that test.

I am still trying to finish my sentence about the prestigious law firm. On looking at their letterhead, they have no less than 16 captains on the bridge, 16 partners in the firm, all with equal rights, all with equal authority and all on the same bridge.

You are wrong.

I am not wrong. I know the firm and I have checked it out.

They are not equal.

They all have the same authority. They are partners and as such can commit the firm. I might say that after I objected, another letter was forthcoming which stated that indeed there was dissension in the firm over this matter. However, let us leave that to one side. The point is that the vast bulk of evidence that was submitted to the select committee was in favour of the abolition of marital power and asked for it to be omitted in existing marriages as well as in future marriages.

The SA Law Commission accepted two of the traditional reasons for retaining the marital power, ie the natural superiority of the man—if you will excuse me!—and the innate weakness of a woman—again if you will excuse me! But these no longer carry any weight in modern times, stated the Commission. Yet it concluded by recommending that the abolition of the marital power should apply only to marriages entered into after the commencement of this legislation. Not only did it not give any reasons for this, but I want to point out that this was in direct contradiction of its own Bill that it presented in a draft form in 1979. The draft Bill presented by the SA Law Commission in 1979—this argument about marital power and the rights of women has been going on for a number of years—recommended the abolition of the marital power both for existing marriages as well as future marriages. Somebody in this House—perhaps you yourself, Mr Speaker—should tell me where the logic of all this is. There is no logic.

I shall…

The hon member for Mossel Bay agrees.

No, I did not say that. I said I would try to show you the logic.

Well, all I can say is that the hon member is going to do a sort of contortionist’s trick because this is very different from the resolution that he adopted in the select committee. All right, anybody is entitled to change his or her mind. That is supposed to be a woman’s prerogative, but on this occasion I shall hand it over to the hon member for Mossel Bay.

The hon the Minister used another argument and I hope the hon member for Mossel Bay is not going to use that silly argument too. The argument used by the hon the Minister was that the Matrimonial Affairs Act, 1953, removed the main disabilities that women sufferd under marital power and that it therefore does not really matter.

No, I said it made vast inroads.

He said it made vast inroads. Does that not amount to the same thing?

It made vast inroads into the matrimonial position, do you not agree?

No, I do not. I say it might have gone some of the way, but it certainly did not go all of the way, and I must say that since I have read the Law Commission’s report plus several memoranda submitted while I was on the select committee (which was a very pleasant experience and I learned a great deal from that), it is obvious to me that the 1953 Matrimonial Affairs Act in practice has made very little difference to the disabilities suffered by women under the marital power.

But you will agree that in principle it did?

It made some difference, but in practice, according to the Law Commission—I am quoting the Law Commission’s report now—it made very little difference. The hon the Minister should read the Law Commission’s report from page 40 onwards and then he will see that although some of the more glaring disabilities were removed, such as placing some legal restraints on the husband’s totally unfettered rights up till then to control immovable property belonging to the wife, and also placing some limitations on his powers in regard to her movable property, in practice the position of the wife was not greatly influenced. Those are the very words used by the Law Commission. For instance, there is no real protection of immovable property belonging to the wife and brought into the marriage, as it is supposed to be protected, where she either inherited it or brought it in or had it donated to her or bought it with her own earnings. There is no protection against alienation by her husband unless an endorsement has been made on the title deeds and registered with the Deeds Registry. In practice, according to the Law Commission, this happens very, very seldom indeed. Therefore in practice it is no good at all.

As far as movable property belonging to the wife is concerned, the 1953 Act was supposed to limit the husband’s power to claim her earnings, to go to the factory and to ask them to give him his wife’s earnings, to withdraw money from a Post Office savings account that she has opened or in a building society of bank, to pinch her shares or dividends—he is not supposed to do that—or to interfere with any insurance policy taken out by her for the education of her children. All those things were placed in the 1953 Matrimonial Affairs Act, or Bertha’s Bill, whatever one wants to call it. However, the 1953 Act and also no successive Act provide any protection against the husband’s power to dispose of any movable property bought by the wife with her earnings and nor does the wife have unfettered power to use those earnings as she wishes to do. There we are, and of course, as I have mentioned before, her lack of contractual capacity is the final humiliation. So one has a woman running her own business, practising law, practising medicine, being an MP—fortunately it does not apply to me, but it could very well apply to the hon member for Germiston District, I do not know—but she would not be able to sign a hire purchase agreement for a vacuum cleaner or a sewing machine without her husband’s permission. Where is the sense in all of this?

I cannot understand why now we are not extending this to existing marriages. Unless the House is prepared to agree to the instruction, what it means in practise is that for at least 50 years we are going to continue with marital power in South Africa because it will take at least 50 years for existing marriages to dissolve by death, anyway, and of course sooner by divorce. The point is that by death it will take at least 50 years and more probably for existing marriages to mark the disappearance of the marital power. That means that our’s will be the only country in the Western World which retains the marital power because practically every country has done away with it. I think the last one to do away with it was the State of Louisiana in the United States, also in the case of existing marriages.

If for all these reasons, reasons which I believe are very cogent—hon members are not yet convinced, they can go and read in detail the arguments offered by the Law Commission in principle against the retention of marital power. So, I hope the House will agree to extend the scope of the Bill.

Mr Speaker, I am sure you will allow me on this occasion, before replying to the arguments advanced by the hon member for Houghton, to extend a very warm welcome to the hon the Prime Minister, who has just entered the House.

Hear, hear!

We all took cognizance, with very great interest, of what happened on the hon the Prime Minister’s foreign tour, and I believe that I am speaking on behalf of all South Africans when I say that we are deeply grateful for the great success which he and his party achieved in the interests of South Africa and for the fact that they are all safely back in South Africa. Mr Prime Minister, it is a great pleasure for us to convey our thanks to you and to welcome you back.

†Turning to the hon member for Houghton’s address, let me say at once that I do not propose doing a contortionist act at all. All I propose doing is to state the facts and then to let the facts speak for themselves. What are the facts? The hon member for Houghton was of course perfectly correct when she stated that the Law Commission had recommended the abolition of the marital power in respect of future marriages only. She is also correct when she states that the Law Commission advanced very cogent reasons for doing so.

No.

For abolishing the marital power in respect of future marriages.

They gave no reasons for maintaining it.

I am coming to that. I said that the Law Commission advanced cogent reasons why the marital power should be abolished in respect of future marriages. The hon member is also correct when she says that the select committee, after very careful and thorough consideration and discussion, decided to confirm the recommendation of the Law Commission on this point. The select committee divided on the question and there was one vote against accepting the recommendation of the Law Commission.

Hear, hear!

When we subsequently debated the question as to whether the abolition should also be made applicable to existing marriages, the member in question said that in order to have uniformity we should also abolish the marital power in respect of existing marriages. When the select committee eccepted that suggestion, we did not go into that aspect of the matter as fully as we did in respect of the recommendation to abolish the marital power in respect of future marriages. We accepted on the basis of uniformity that we should also abolish the marital power in respect of existing marriages. I put it to the House that that was the only justification and motivation that was mentioned in the select committee why we should also abolish the marital power in respect of existing marriages.

Business suspended at 12h45 and resumed at 14hl5.

Afternoon Sitting

Mr Speaker, when Business was suspended for lunch, I was saying that the select committee did indeed recommend the abolition of the marital power in respect of existing marriages as well. The committee did so on the ground of achieving uniformity in all marriages in community of property. I believe that that was a sound reason for the committee recommending what it did.

The hon member for Houghton conceded, however, that in making that recommendation the select committee went beyond the recommendations of the Law Commission. At the outset the select committee decided that it would not be confined to the area covered by the recommendations of the Law Commission, and we did in fact then go beyond the recommendations of the Law Commission. When the select committee’s report and recommendations were considered by the hon the Minister and, I believe, the Cabinet, it was decided to publish for comment those recommendations which went beyond the scope of the Law Commission’s recommendations and comments were indeed received. I have not seen them; I do not know whether the hon member for Houghton has seen them.

If you have not, I certainly have not.

Well, I would then suggest that, like myself, the hon member for Houghton is not really in a position to judge the validity of the comments that were received by the hon the Minister from the public, the legal profession and other interested parties.

They had 18 months before the select committee reported.

That may be so, but, bearing in mind that the Law Commission did not recommend the abolition of the marital power in respect of existing marriages, there was not that incentive for people to react to the possible abolition of the marital power in respect of existing marriages. One can imagine that the select committee’s recommendation, when it was advertised, was much more of an incentive for interested bodies and persons to react. I, certainly, am not in a position to judge the validity of the comments received by the Cabinet on these matters.

I did say in my Second Reading speech—and I stand by it—that I was sorry that the relevant recommendation of the select committee had not been accepted and that the marital power had not been abolished also in respect of existing marriages. However, I said that in the light of my perspective as a member of the select committee and the importance of achieving uniformity. However, there may also be very material and important considerations pointing to a different attitude. I suggest therefore that it is very difficult at this stage to debate whether the marital power should also be abolished in existing marriages. Basically we have nothing to go on except the possibility of achieving uniformity.

There are lots of other reasons.

I have tried to explain to the House that the select committee never went into other reasons.

Of course they did.

We decided that in order to achieve uniformity, we should also abolish marital power in respect of existing marriages. As I have said, we have not seen the comments which have been received by the hon the Minister and the Cabinet. I also stated categorically at Second Reading that whereas it was the function and the duty of the select committee to make recommendations on the matter under consideration, it was certainly the prerogative of the Cabinet to decide on the acceptibility of those recommendations. The Cabinet has had the advantage of the further comment which they received. The hon member for Houghton has also conceded that the Law Commission itself was not prepared to recommend the abolition of marital power in respect of existing marriages. Therefore there are many pointers in the direction of a refusal to abolish marital power in the case of existing marriages.

The hon member for Houghton has also suggested that there is no difference in principle. However, I submit that there is a very definite difference in principle between abolition in the case of future marriages and abolition in the case of existing marriages. First of all, as far as existing marriages are concerned, the parties already exercised an option when they were married and they accepted …

It is a package deal.

Yes, the hon member may say it is a package deal, but the fact of the matter is that they could enter into an antenuptial contract and in that way exclude the marital power. They therefore had an option open to them, and they preferred to accept the marital power. To now enact for the abolition of marital power in the case of existing marriages, would fly right in the face of these people and the way in which they elected to exercise the option. It would in fact be a very forceful way of achieving uniformity. As I have said, I am all for uniformity, but it may be too high a price to pay for that uniformity to abolish marital power without consulting the interested parties and giving them an opportunity of maintaining the marital power if they so wish. There is therefore a definite difference in principle between providing for future marriages vis á vis providing for existing marriages.

Having had this argument and having disposed of the matter at Second Reading, it is most important—there is no justification for it—to reopen the debate as to the abolition of the marital power also in respect of existing marriages at this stage. I am perfectly happy with the decision of the hon the Minister in view of what I believe the comment which he received amounted to.

Mr Speaker, can the hon member for Mossel Bay tell us how he would vote on this particular issue if there were a free vote.

If there were a free vote I would vote exactly as I have stated just now. One holds certain views in the light of certain evidence before one. On the evidence before the select committee I was in favour of the abolition, and that is why I said at Second Reading that I was sorry that the select committee’s recommendation had not been accepted. On the other hand, one must also be objective enough to realize that one does not have a monopoly on good arguments and reasons for acting in a particular way. I can see that there may also be very cogent reasons—I have tried to mention just a few—why one should be very careful in dealing with this matter because it is basically a very sensitive one. It is all very well for the members of a select committee, like myself, to recommend a certain course of action, but it is not the select committee who has to take the ultimate responsibility, but the Government.

You are doing a somersault on the issue.

No, it is not a somersault. The hon member knows nothing about this. [Interjections.] It is not the select committe and myself who have to take the responsibility, but the Government. If the Government is not prepared to take that responsibility then I must accept the fact that it is not my prerogative to dictate to the Government. It is my prerogative only to make a recommendation to the Government. It is for the Government then to decide what is feasible and acceptable and what it is prepared to do in the circumstances, and I am perfectly happy to abide by the Bill as it reads now.

Mr Speaker, I want to tell the hon member for Houghton that I am sorry, but she will understand that we on this side of the House will not be able to support her. I want to tell her at once—she knows this, I have told her so before—that I do not have marital power in my marriage. I did away with it by contract.

[Inaudible.]

Thank you very much. I want to tell her why I do not think we can change it. I think she has enough for the present. She must now be satisfied with what she has.

She can sit back satisfied.

Oh no!

Of course. As far as I am concerned it is unthinkable to interfere with retrospective effect in thousands of marriages in South Africa that may have lasted for 30, 40 or 60 years, and to want to tamper with the marriage control situation, as regards contract over the joint estates of those marriages. It is not as though those people who married in community of property were forced into a specific form of marriage. They did so of their own free will. After considering the matter they decided to marry in community of property or to marry by antenuptial contract. I want to tell the hon member that in my mother’s time it was virtually unthinkable among Afrikaners to marry by antenuptial contract. They were negatively disposed to this form of marriage of what is mine is mine and what is yours is yours. They made the ideals of the unity of marriage in community of property their guiding principle. They could have contracted out of that situation, not from today or yesterday, but since before the time of De Groot they could have contracted out of the marital power situation. People decided, after considering the matter, to enter a specific marriage situation, and in my opinion it would be wrong to want to interfere in that situation now.

I see it like this: We have now reached the stage where we are eliminating the marital power by statute; this means the beginning of a new system. We are now going to have new marriages from which the marital power has automatically been excluded. I shall not pursue this matter. Marriages that have already been concluded can remain as they are although provision is made for parties who want to do away with marital power to do so by contract. I want to tell the hon member with all due respect but also with sorrow that in my opinion she is overemphasizing the subservience of the woman in the marriage in community of property.

Read the instruction.

I have read it. What is the percentage it deals with?

Fifty two per cent of Whites.

Yes, but the hon member is overemphasizing the lesser position of the female in such a marriage.

*That is not how it works. It does not work like that in practice. In practice those marriages work quite differently, and that was also what the commissioners said. They are not arguing about that. In cases where there is friction, the marriage partners can contract out on their own if they wish.

My party therefore does not support the request of the hon member. We think that we have taken the matter far enough. What is past is past. Those people are used to the situation and persons getting married in future will do so according to the new system.

Mr Speaker, I should like to bring it to the notice of the House that the modus operandi adopted by the select committee was that whether or not marital power should be abolished in existing marriages was not discussed in the early stages to any great extent for the very reason that the Committee was tied up by the effects of the total change as a result of what the select committee recommended in regard to future marriages first. On page 12 of the select committee report the hon member for Sandton moved:

In the process virtually the entire Bill and the arguments surrounding each aspect of the change in regard to future marriages were discussed and thoroughly thrashed out. All the possible difficulties, both contractually and in terms of litigation, were covered. Having completed that process, the select committee went back to consider in what way there would be a difference if it was applied to existing marriages. Armed with that thorough examination of the effects, the committee unanimously decided that, in fact, there was no reason why it should not apply to existing marriages. So the matter was considered by the committee. The effects of many of the clauses related to existing marriages are identical.

When we look at clause 12 of this Bill, we see that it provides:

The clauses following upon this clause, particularly clauses 14 to 16 in Chapter III, limit both spouses considerably in regard to their contractual ability. In effect, the degree of contractual ability and the power to litigate which will be done away with by the abolition of the marital power is safeguarded by these provisions in Chapter III. The select committee, having covered all that ground, sought to minimize the dangers in respect of future marriages and those spouses who by virtue of this legislation would choose to opt for change. The committee felt that there was no real danger in applying this provision to existing marriages as well. This was a process of logical reasoning after having satisfied oneself that there was no real difference other than in regard to the critical point which in fact came up right at the start and which was the reason for the suggestion of the hon member for Sandton in the first place; namely that one was in fact impugning that sacred area of the law namely the breaking of a contract. It was felt therefore that we would get absolutely nowhere unless we first thoroughly investigated legislation in order to discover to what degree this aspect would really be affected.

In his Second Reading speech the hon the Minister indicated what his real concern was. In fact, this was a point raised by hon members on the select committee as well. It was the tremendous number of people who would be affected and also, in answer to a point that I had made, the effect it would have if people wanted to contract in in respect of the marital power. When one views the situation in that light one must also accept the fact that there are going to be people who as a result of its abolition as far as existing marriages are concerned are going to say to their wives that they do not want them to have the right to contract, to have any contractual capacity at all or to have any legal capacity, and that, because of the new legislation, a new contract will have to be drawn up to that effect. I think that under those circumstances one will be narrowing the spectrum down to very few people indeed. Therefore, the figures given by the hon the Minister in terms of the number of people married in community of property now will not necessarily be affected as a result of the abolition. It will only be those who are absolutely determined not to give their wives contractual or legal capacity who will be affected. Therefore, the costs involved in this regard will be minimal.

Who will pay those costs?

Mr Speaker, if people really feel it is of such importance that in this day and age their wives should have no contractual or legal capacity, and if, in spite of the protection afforded by clauses 15 and 16 of the Bill limiting people to written consent or consent, as the case may be, they are absolutely adamant that there should be no contractual or legal capacity whatsoever, then I do not really think that they who are thinking people are going to be concerned about having to pay a few rand to recover what they feel is so terribly important to them. Therefore, I do not think the figures given by the hon the Minister really reflect what would happen within those figures as a result. I think that they actually only represent a big warning sign that is being flashed whereas in reality the effect could be considerably less. We have considerable feeling towards the attitude taken by this party in the select committee having been a party to a really tremendous experience, which fact was mentioned in the Second Reading where we had in-depth discussions in the right spirit, where there was a lot of give and take and a realization that some of the fears said to exist around marital power in this day and age should not really exist at all. We believe therefore that the select committee was right in its decision, and accordingly we shall be supporting this instruction.

Thank you.

Mr Speaker, the hon member for King William’s Town had a great deal to say about the decision of the select committee, but I just want to repeat the argument of the hon member for Mossel Bay, namely that the select committee went further than the recommendation referred to the select committee by the SA Law Commission. Because it went further, an opportunity for further representations was allowed, and further representations were in fact received. It was on the basis of those further representations that the hon the Minister decided to come to this House with this legislation. I want to suggest that it is of no avail for us to refer to the decisions taken by the select committee. We must now debate this matter on its merits, on the facts before us, and that is what I should like to do.

The hon member for Houghton quoted various women’s organizations, their attitudes and so on. I should very much like to refer to a very recent Press statement by one of these women’s organizations, namely the Women’s Bureau. It is a Press statement made on 7 June and here on page 2, inter alia, they say:

In other words, this women’s organization appreciates the situation; they are sensitive to the situation and they are sensitive to the fact that there are sound legal arguments against this abolition with regard to existing marriages. I want to suggest that this is concerned with respect for existing marriages and nothing else. The marital power is being excluded with regard to future marriages and that is a good thing. But as far as existing marriages are concerned we have the situation that marriage partners had a choice, when they got married, as to whether or not they wanted the marital power. If they had not wanted the marital power they could have gotten rid of it. They had that choice and they exercised it. Now those people are being given the opportunity by this legislation to alter the choice they made. They can enter into a notarial contract and in that way they can get rid of the marital power. It must be assumed that if they do not get rid of it, they do not want to. The effect of this insertion would be, if we were also to abolish marital power with regard to existing marriages, that with regard to at least one of those parties or possibly both those parties, we would be forcing them to get rid of their marital power against their will. I honestly do not think this is fair. Those people decided on marital power; they now have the opportunity to get rid of it; they do not get rid of it and it would be unfair if we were to force them to get rid of it.

I also want to suggest that there are amendments that will be ‘moved by the hon the Minister by means of which the time within which persons may get rid of the marital power by notarial contract is being extended from one year to two years. I want to suggest that this is a very fair way to deal with this problem. I also want to suggest that the hon member for Houghton should not ruin a very good debate and a very good step towards reform with this motion. She does not really feel that strongly about it otherwise she would have voted against it at the Second Reading.

Mr Speaker, I think we should just come back to the hon member Mr Schutte and refer him to the precise subject matter which we are debating this afternoon. We are debating the term, the concept and the regime of marital power. What is that marital power? That marital power means that the husband, by virtue of not having concluded an ANC perhaps many years ago with his wife, has the total guardianship over his wife. It means that the wife has absolutely no capacity to enter into any contract of any consequence.

Both decide.

It means that the wife cannot litigate in her own right. It means that while they share the common property, the wife has absolutely no say over the administration of that property during the marriage. It means in fact that the wife in the marriage can only realize her share and have a say in that share upon the death of her husband or upon the dissolution of the marriage. What is more, it means that the husband has absolutely no duty even to account to the wife for his administration of property half of which belongs to the woman in a marriage.

In the select committee we debated this at length and virtually without exception the members of the select committee said that that type of marital regime is obsolete; it does not serve the needs of the time; it is wrong; it is a regime which is totally unfair to the woman in a marriage. We agreed to abolish that regime. That is what this legislation is doing.

The question I ask is this: If it is obsolete, if it is wrong to the woman, if it is unfair, if it allows abuses, what makes it good for existing marriages? That is the question I ask. Why should we retain it when we …

Because the parties have the option.

I shall come to that. Why should we retain it when in fact we have agreed among ourselves and it is self-evident that it is a regime which has long outlived its purpose in South African law? That is the first point I make in reaction to some of the arguments offered by hon members here.

I want to thank the hon member for King William’s Town for his support and logical arguments. [Interjections.]

I want to mention a few points made by the hon member for Mossel Bay. The hon member said he was totally happy to support the stand of the hon the Minister in this issue. I must say he looked perfectly unhappy in stating that he was happy. [Interjections.] In fact, he looked quite miserable. This was borne out by what I consider to be an argument put without any real substance and without any conviction. He said that he was not going to argue the case; he said that he was going to state the facts and then allow the facts to stand on their own. He was true to his word because he did not offer one single solitary argument of any consequence in repudiation of the instruction moved by the hon member for Houghton. In fact, I regard his arguments almost as covert support.

And so do I.

She says for instance that whereas we sat in the select committee and found cogent reasons based on all the evidence put before us to do what we did in abolishing this, the hon the Minister has received a vast amount of documentation—I have not seen that documentation—and in that documentation there may be something which is so important as to change his mind and therefore he has changed his mind.

No, that is not what I said.

He has not read what the hon the Minister received.

Do not put words into my mouth.

This rather reminds me of a Minister who once signed something without looking at it. What has happened here is that an hon member has changed his mind on an issue without hearing the argument to help him change his mind. [Interjections.] The hon member states this one rather trite reason: That it would be wrong to interfere—I think the hon member Dr Schutte as well as the hon member for Soutpansberg said this—in an existing situation where people had opted for a particular style of marriage. That was perhaps the one argument that has been put forward in this debate. I remember very clearly the statistics quoted by the hon the Minister in his reply to the Second Reading debate. I think they emanate from the report of the Law Commission. Overall about 68% of all marriages are in community of property. Between 80% and 90% of Coloured and Indian marriages are in community of property, while the percentage in respect of the White communities is between 48% and 52%. The people who are at the less sophisticated levels of our society—there are exceptions and I do not want to over-generalize—do not often go to lawyers. In fact, in my own society large numbers of people actually do not know lawyers and do not want to know lawyers. They do not want to go to lawyers and probably cannot afford the fees lawyers ask for their services. Very often you find that people run off to get married and that they do not even think about an antenuptial contract until perhaps five or ten years after the marriage. When people get married, they do not always get married on the basis that the woman understands that she is in future going to fall under the tutelage of her husband. They take a package deal in terms of the community of property system. This sharing system we have had in the past, the community of property system, has involved the question of marital power. This is not really a valid argument as far as defeating the instruction of the hon member for Houghton is concerned.

The other point the hon member for Mossel Bay made is that the main reason for introducing the abolition of the marital power in respect of existing marriages is the question of uniformity. That was probably the hon member’s main motivation. I must be honest and say that it was not my motivation. He said that the select committee did not really discuss this matter at length. We did. We discussed at length the question of vested rights and whether we felt justified in interfering with those vested rights. We discussed at length the rights of third parties in respect of contracts which have been entered into previously by a man who had the marital power. We agreed amongst ourselves unanimously that this abolition of the marital power should not be retrospective. In other words, we agreed that existing contracts which have been concluded by a man who had the marital power, would not be interfered with and would stand, but that from a given date women would be released from the shackles of these legal disabilities.

For the sake of uniformity.

“For the sake of uniformity”, the hon member says, but I say that it is for the sake of removing an evil from our law. That is why we felt we wanted to do it. The fact that it brought about uniformity, I thought, was an added advantage.

I think that clause 25(2) of the Bill certainly does alleviate the situation to a minor degree, but we must realize that just as hundreds of thousands of people did not go to lawyers in order to get married, hundreds of thousands of people may in fact not even be aware of the new benefit available to them and may not go to lawyers, may not be able to afford to go to lawyers or may not be able to get their husbands’ permission to go to lawyers in order to rectify the situation. I am not sure whether clause 25(2) is in fact going to solve all the problems.

Taking all that into account I do believe that there is merit, in fact overwhelming merit, in the argument put forward by the hon member for Houghton. I do think that when we have such an unique opportunity as we have in respect of this Bill today to bring about truly meaningful reform on a matter which affects virtually every single South African who is married, we should go the whole hog and bring about reform which is going to affect not only future generations, but which is going to bring benefits to people who are already in the state of marriage.

Mr Speaker, I shall discuss the speech of the hon member for Sandton in a moment. I first want to address a word to the hon member for Houghton. At the beginning of her speech she said that the select committee had unanimously recommended that the marital power should be abolished with regard to future as well as existing marriages. In this connection she referred to page 35 of the select committee report. She did me a slight injustice when she made that statement. I just want to remind her that earlier in our discussions on the select committee we first considered whether the marital power should be abolished at all. She will remember—this is stated on page 23 of the report of the select committee—that I was the only member who was opposed to that recommendation, as the hon member for Mossel Bay has indicated.

Shame on you.

After the decision had gone against me, however, I was the one—the hon member for Houghton will grant me that—who said: Now that you have taken this foolish decision to abolish the marital power of the husband, you would go all the way. That is why on the second occasion I agreed with the idea that it should also apply to existing marriages.

Good for you.

I see the hon member for Houghton agrees that I put the matter in its correct perspective.

In his speech the hon member for Sandton asked: “What is marital power?” I want to admit at once that it is true that marital power, as it exists in our law at present, contains certain untenable legal incapacities for our good wives. On the other hand I want to disagree with him and people who adopt his standpoint that it is an “evil in our law”. I think that one should retain one’s equilibrium and not turn the marital power as it has existed in our legal system for centuries now, into bogeyman concept. In this regard I want to come up for the men and also for the women who have entered into marriages in community of property in our legal system—my wife and I are an example. I am convinced that marriages in community of property with marital power to the husband have assured the vast majority of the women concerned of the love and care of their husbands. I do not know of many women married as my wife and I are, who are bowed down by the terrible yoke the hon member for Sandton referred to. On the contrary, they are very happily married. One could also go into the religio-ethical aspects, but I shall leave it at that.

Sir, you will realize that I am in fact indebted to the hon the Minister because in the decision he or the Cabinet took, he moved halfway back towards the standpoint I adopted. For that reason, unfortunately, I cannot support the motion of the hon member for Houghton.

Mr Speaker, those of us in the House who did not serve on the select committee, are indeed indebted to all those who have participated in the debate so far and who have given us the benefit of the knowledge and experience which they gained while serving on the select committee. We are thankful to them for that.

I particularly want to refer to the remarks made by the hon member for Mossel Bay. Although the select committee made recommendations, some of which were not accepted, it is this House which has the final say. It is for this reason that this matter is raised in the House and I, as a member who did not serve on the select committee, will support the instruction moved by the hon member for Houghton.

I believe that we all accept that marriage is the basis of Western civilization. A home goes with a marriage and we are all intent on preserving marriages as far as possible with the obvious beneficial consequences to the children and the preservation of our standard of civilization. The marital power which we are discussing today, is a power which virtually goes back to the Dark Ages. The Bill recommended by the select committee provides that marital power will be abolished in all marriages entered into after this Bill becomes law. That is a very fine gesture.

However, we are dealing with the emancipation of women. They received a franchise in 1930 and we are now in 1984. They received a small concession in 1953, but has the time not come for men to free women of this marital power and of the control which the law placed on marriages in which women were treated as chattels? They are referred to as chattels in many law books and in many cases revolving around matrimonial disputes. To that extent I believe we should go the whole way.

As far as marital power is concerned, it has two effects. It has an effect within the marriage where it can cause friction because the woman does not have the contractual capacity and is not treated as an individual on her own. She may be of majority age, in other words over 21, but the moment she marries, she becomes a minor in law, subject to the marital power of the husband. In this age in which we live, that is not wise or proper.

I now want to refer to the report of the commission, particularly to page 61, where arguments are put forward why the marital power should be retained. It says that considerations which are traditionally advanced as justification for marital power, is, firstly, the natural superiority of man. Are men in this House prepared to argue that they have a natural superiority over women and that that is a reason for retaining marital power? One can surely not advance that argument today. The second argument is that of the innate weakness of women as against men. One can surely not say that women have an innate weakness. They should therefore enjoy the same rights as men. The third reason advanced is that there must be a leader in every situation where people live together. What is a successful marriage? It is one where all the important decisions are made by the boss, and after he has decided, the others comply. The fact that marital power is retained, does not affect the decision as to who is the leader. What it does do, is to cause friction within a marriage. If we want marriages to be successful and the divorce rate to be kept down, the marital power should be taken away from all marriages.

The hon member for Mossel Bay, who I understand did a fine job as the chairman of the select committee, rested his main argument on uniformity. There are other arguments as well, and I will not dispute them. I am prepared to put it to the hon member that uniformity alone should be sufficient reason to abolish the marital power. This Bill, as correctly pointed out by the hon the Minister, has to be administered by attorneys, notaries public and conveyancers. There will be an obligation on all three, not only to acquaint themselves fully with this law and with all its implications, but also to advise their clients how to go about the various changes that it brings about.

The second argument that I want to advance is one from the point of view of conveyancers. Here again uniformity is required. There is going to be a nightmare in administration from the conveyancers’ point of view. Marriages are already very complicated when legal documents are drawn up. Questions asked are, for example: Is the marriage out of community of property, and if so, is the marital power excluded? If it is excluded then it excludes community of property and community of loss. In the case of a marriage in community of property questions could be asked such as: When were you married? Were you married before the date the legislation came into operation or after the date it came into operation? The deeds office then has to check all the deeds that come in. Extra certificates have to be lodged. The issue is complicated and it is made difficult for conveyancers and everybody concerned.

Must I withdraw the Bill? You are objecting to everything.

No, I am advancing reasons why this instruction should be accepted. Uniformity, as stated by the hon member for Mossel Bay, is a very sound argument. Once we have legal uniformity, and there is no longer a marital power in marriages, then we would have made it easy for the administration involved. As pointed out by the hon member for Sandton, people married in community of property going to the expense of having ANC’s drawn up, is just not going to happen. The easiest thing therefore is to make it uniform. Let us emancipate women once and for all. Let us free them from the marital power and let us agree to the instruction before the House.

Mr Speaker, if I had ever doubted the validity of the Government’s decision to deal with the question of the marital power with regard to existing marriages as is being proposed in the Bill, that doubt has been finally extinguished—not that I ever entertained the slightest doubt about it before—now that I have listened to the hon member for Hillbrow. The fact remains that if his only consideration is uniformity then it is very clear that he must have failed entirely to weigh up all the other arguments that must have been advanced in the select committee or which otherwise applied in respect of my standpoint. The fact is that uniformity cannot be decisive. Any other argument, however minor, must also be considered and evaluated. If it carries any weight one must think twice about the matter.

The was another moment, too, when I came to feel very sure about our decision. It was after reading the comments by the hon member for Sandton in the newspaper after the Bill had actually been published for the first time. That finally convinced me that the Government was right. According to a report in The Cape Times of 6 May 1984, the hon member for Sandton said:

He could not foresee many husbands voluntarily giving up their marital power. However, he says that we must take that marital power away in one fell swoop. He says that the Government must remove the marital power that men do not wish to give up voluntarily, in one fell swoop. Is that the hon member’s standpoint? Is it his standpoint that we must introduce conflict in the marriage where it did not prevail before? [Interjections.] Is that really his standpoint? Surely that cannot be a sensible standpoint. However, that is the effect of the support given by the hon member for Sandton to the instruction by the hon member for Houghton. If I had ever had any doubt—not that I ever did—then I have now been reassured in this instance as well. Surely we cannot accede to a proposal to take action against the will of “many husbands”. [Interjections.] The hon member for Mossel Bay said that there were very good reasons why we had adopted the standpoint in conflict with that of the select committee. The select committee will concede that they did not hear wide-ranging and diverse evidence, although they did receive commentary.

†I am asking the hon member for Houghton whether she agrees with the chairman of the select committee. Will the hon member for Houghton agree that the select committee did not hear evidence on all these issues? They did not. [Interjections.] I considered it of importance and in the best interests of all parties concerned that I should call for comment on this very important issue. I did actually send out a questionnaire, and let us look at the response of reputedly one of the largest professional women’s organizations. The following question was put to them:

The answer thereto was:

That was incorrectly interpreted.

Whether it was correctly interpreted or not I do not know, but listen to the response to the second question:

[Interjections.]

Which organization is that?

If I should tell the hon member which organization this is, I am not sure what she may do about it. Can I be sure that she will not sue them for breach of promise … [Interjections.]

I can give you at least a dozen memos to the contrary … [Interjections.]

I selected one of the largest and reputedly one of the most important organizations.

The Kappie Kommando.

It is definitely not the hon member’s commando, nor any other commando. It is reputedly one of the most influential women’s organizations.

Tell us which organization it is.

No, I do not have their consent.

Those women are ashamed of themselves; otherwise they would not worry about disclosing their name.

The hon member for Durban Central must be very careful because he could lose out on a lot of votes on this issue.

You are withholding information from the House.

I am not going to disclose the name of the organization for the simple reason that my department is in honour bound when they call for comments not to identify the individuals who and organizations which respond, at least not without their consent. Should these hon members insist on my disclosing the name of this organization, there is plenty of time from now until the Third Reading for me to get the consent of the organization.

Do that …

Mr Speaker, is it fair that the hon member should use a newly-gained power to interrupt me so often? [Interjections.] A further question was:

That is fair.

Let us look at another one. Under the heading “General” in the questionnaire it is stated:

In all fairness, I wish to quote the following comment in its entirety. It states:

I am quoting this to the hon member in its entirety. I am not quoting just a part of it. [Interjections.] I am quoting these comments to the hon member in their entirety. I shall tell her what the name of the organization is once I have obtained its permission to do so. I have also read the other side of the story. They have reservations. However, they also see the light in regard to the other side of the situation which they respect. [Interjections.] What about the universities? Once again, I have not asked the universities for permission to divulge their names.

Surely if a university writes to you you can divulge its name?

I should like to quote firstly the opinion of an Afrikaans university.

*It concerns the abolition of the marital power as far as marriages out of community of property are concerned—and that is probably a very small percentage. Just hear what they have to say:

This is the provision that it be abolished. It goes on:

This applies in respect of parties married out of community of property where they could have excluded it but have not done so. The question now is whether Parliament should summarily abolish it. Attention was in fact given to this despite what the hon member for Sandton is now trying to intimate, viz that those people were drawn into a situation because they represent a certain part of the population. That cannot be true.

Was it legal for Parliament to abolish slavery?

Mr Speaker, I think we should change our Standing Rules and Orders to provide that an hon member can only speak and make interjections if he has some knowledge of a matter. [Interjections.]

†I also want to quote the opinion of an English university in this connection. They state:

That is not what Rabie said. [Interjections.]

What does one of the professional associations in South Africa say? They say:

†Then we also have the comment of another professional society, one of the strongest in the country, which states:

In other words, their comments include marriages both in and out of community of property:

I say that this is one of the strongest professional societies in this country.

*What does another professional association say? They say:

This, then, is a summary I have now given hon members of much of the commentary received in this connection. If it is true for the marriage out of community of property, then the same argument certainly applies for marriages in community of property as well.

As regards these different professional organizations and universities, I could also quote the comment of another English university in respect of marriages in community of property. It reads as follows:

As regards the comments on the basis of which we decided, it is true that there was strong support for summary abolition, but there was equally strong support for its retention and for a mechanism of choice. That is where we stand.

I want to associate myself with the warning issued by the hon member for Ermelo to the effect that the system of marital power prevailing in respect of existing marriages should not be seen as a monster or, as the hon member for Sandton put it, something that looms up out of the dark and overwhelms poor innocent women. No, Sir, in terms of our law it has become a system of administration, and the hon member for King William’s Town concedes that, because in his principal argument in the Second Reading, be proposed a mechanism of choice whereby a person could go and back and re-introduce the marital power. The hon member is correct when he says that there may be people who may wish this, viz a form of unilateral administration.

I now want to put a question to the hon member for Sandton. Let us assume that under the new dispensation, in future marriages, there are spouses who give a power of attorney to one of the spouses to administer the marriage on a unilateral basis and in which the setup will be the same as prevails at present under the marital power. Would the hon member object to that?

I shall have to think about that.

The hon member should have thought about such an important matter long ago.

I am not sure. Give it to me in writing.

No, the hon member should have thought about that a long time ago. Let me ask the hon member for Houghton: Will she object if one of the parties to a marriage gives the other party a general power of attorney to run the marriage according to the existing marital power regime?

No, because you do not have to do that. You have to take the marital power if you got married …

The hon member does not object. If that is so, what is so objectionable about the marital power continuing? What is wrong with that? The point I am making is that the marital power as it stands at present is increasingly being seen as a system of administering the joint estate.

Not only that.

This will be the position, particularly after this legislation has been accepted. However, we are accepting a further principle in this Bill, viz that this is a situation which ought to be phased out. I say “ought to be” because, in the first place, we are establishing a mechanism of choice; secondly, we are not making it impossible to conclude a contract whereby to revert to marital power and, thirdly, we are making it possible for parties to abolish the marital power voluntarily within a certain period. In other words, we respect the standpoint of those who prefer a system in accordance with which marital power will apply and the estate administered accordingly. That is the basis of the professional associations and the one women’s association …

One.

… and also of the universities, the basis on which there is respect for a choice exercised when various choices were available.

We know it was a fact.

The hon member for Houghton is a typical…

Rather do not say what.

The hon the Minister of Constitutional Development and Planning knows what I wanted to say, in any event. Surely the hon member for Houghton alone cannot tell us what the “package deal” is. Why does she arrogate to herself the right to come and tell us what the “package deal” is? It is not for her to take decisions of this kind. The package deal we are offering appears in the Bill and we believe that it represents the wisest course of action. Of course there was a choice: Either to be popular with those who say that the marital power should be summarily abolished, or to make an effort to take a wise step. I must say that the Government exercised the choice to be wise. I am convinced that the rest of the country accepts this.

I now wish to come to the next point. The Bill opens up the possibility of evolutionary development as far as the marital power is concerned. Previously there was no such possibility. The flexibility we have incorporated here opens up the possibility that this matter may be reviewed in future. We are introducing a new system of concurrent administration and we shall see how it works in practice. Besides that there will be administration in accordance with the marital power. The two situations may be weighed up by existing marriage partners now and in the future. After that a younger generation can take the final decision. I am convinced that some of the younger hon members will be present there, but I am not so sure about the hon member for Houghton. To make her happy I shall say that I am not all that sure about myself, either. It may be the privilege of the present generation to take the evolutionary development further. However, we must respect the many thousands of people who have exercised a choice, and we dare not introduce conflict in the marriage.

Apart from that the abolition of the marital power may not be considered in isolation. The lifting of the restriction on the capacity of a wife to contract, which the abolition of the marital power entails, necessarily results, with regard to a marriage in community of property, in the way in which the joint estate is administered being expressly regulated. This is the choice that we are still leaving the people.

I thereby state clearly that the requested instruction put forward by the hon member for Houghton is not acceptable to us.

Mr Chairman, if one looks at the Bill in relation to the amendments to it on the Order Paper, one sees that on clause 23 there is a proposal that special protection be granted to the family home. In order to grant that special protection to a family home it is necessary to include in the definitions clause a definition of the family home. What is proposed in the amendment which will yet come before us is that a spouse married out of community of property shall not be entitled, without the written consent of the other spouse, to alienate, mortgage, burden with a servitude or confer any other real right in any immovable property registered in his name and which serves as the family home.

In any marriage the family home is a rather special place. It is a special place because it is the place where the spouses normally cohabit and where the children are brought up. In every society there are of course exceptions to the general rule and upon a separation the family home may shift to one of the spouses and the children. I now wish to move the amendment printed in my name on the Order Paper, as follows:

You will see, Sir, that this insertion attempts to define “family home”. The family home is only relevant when the spouses are living together or when either of them is living together with the children at the time when the marriage still subsists. This insertion we request and a further amendment, which hopefully will be moved, are intended to protect all homes which house families and, basically, childrem. This was a recommendation of the select committee and was originally contained in the draft Bill put forward by the select committee. We realize, of course, that, in moving this, we are not legislating for the vast majority of marriages but for the exceptions and, in this particular case, for a problem which could arise and which could in certain circumstances cause grave danger.

I realize that there is other legislation which in some circumstances could protect the sale of immovable property, but I do believe that, when one is dealing with a porperty which is not specifically an investment or a holiday home away from the home but with the only home in which the family resides, there should in fact be special protection granted to that property and to the parties in relation to it. The argument advanced by the Government in the Second Reading debat why this provision was left out was that it was almost impossible to define “family home” and that this would create uncertainty in law. I think we all agree that it is not in fact desirable to create laws which have in them an inherent uncertainty, but I do believe that this definition is fairly clear. We must realize that, if litigation ever arises in relation to a provision of this nature, the onus will be upon the applicant to show the court that the home on which to application is based is in fact the family home. Therefore, I believe that very quickly precedent and court decisions will settle the exact interpretation of this definition. In my own view the definition is, in itself, clear enough. Accordingly, I ask that this amendment to the definition clause be accepted to grant special protection to the family home and that effect be given to what was, if I remember correctly, a unanimous decision of the select committee and in any event a majority decision of that select committee because that decision was carefully thought out and reasoned before it was incorporated in the draft Bill.

Mr Chairman, I want to reiterate what I said in the Second Reading, viz that I am convinced the select committee made this recommendation in good faith. To be more specific, the select committee took cognizance of the possibility of a wife and her children being wronged in consequence of the injudicious alienation of the family home by the husband, and the select committee wanted to obviate this possibility. Although I did not vote in favour of the recommendation concerned in the select committee, I had no objection to it as I, too, should like to obviate this injustice. However, upon subsequent consideration it became evident that it was extremely difficult to define “family home”. In fact, even in the select committee we experienced great difficulty in finding a generally acceptable definition. We were aware that the definition formulated in the draft Bill which conformed to the proposal of the hon member for Sandton which is under consideration at the moment, was not as satisfactory a definition as we should have liked to have.

On this occasion, however, I can do no better than to quote from a communication I have since received from a learned judge. Because I do not have his permission to mention his name in public, hon members must not expect me to do so. However, I quote from the communication he addressed to me. Part of it reads as follows:

†The learned judge goes on and says:

You must not exaggerate.

I am quoting verbatim from the letter that I have received.

You said it was from a learned judge?

Yes, it is from a learned judge.

Then do not exaggerate.

He continues as follows:

I agree that the concept “family home” is indeed a vague concept. It is very difficult, if at all possible, to define this concept, and that being so, I have no alternative but to agree with the learned judge and to come to the conclusion that a possible definition, and in particular if we should accept the amendment proposed by the hon member for Sandton, will bristle with difficulties. Therefore I cannot agree to the amendment of the hon member for Sandton.

Mr Chairman, I have a problem in the sense that the amendment being moved by the hon member for Sandton may seek to introduce a new principle in the legislation that is in conflict with the principles of the principal Act. Sir, in due course I shall ask you to give a ruling on this. Until such time as we get to that, I want to indicate that we cannot support the introduction of this definition because by implication we are then supporting the subsequent amendment by means of which the hon member wants to insert a new clause. This could also amount to the introduction of a new principle. Even if it does not amount to that, we cannot support it in any case.

I want to repeat the motivation briefly. We submitted the provision for comment and received wide-ranging comments. Even those persons who supported the principle had considerable objection to the definition of “family home”. In addition, those persons who supported it said it should have a wider application than merely to marriages out of community of property. The standpoint is quite clear, namely that what were we seeking to introduce here is a principle foreign to South African law. We are not suggesting that the wife of the husband—both may be affected by this—may not have a case to consider, but what we are saying is that considerable provision has already made for this in existing legislation. For example, a husband or wife who is afraid of being prejudiced may apply to the court in terms of rule 43 of the Rules of the Supreme Court to obtain an order pendente lite so that other remedies may be put into effect.

What is one of the remedies which may be put into effect? For example, in clause 35 of the legislation it is envisaged that in the case of a marriage out of community of property where the accrual system does not apply, a party may approach the court for the allocation of a fair share if there is a direct or indirect contribution and if other conditions are complied with. In other words, read in conjunction with rule 43, a person may be prohibited from making certain alienations until that judgment can be given. Similarly, as far as the marriage in community of property is concerned, certain prohibitions are also being introduced now. We want to suggest that for the present adequate remedies exist. We are not denying that in these grey areas there may be situations that do require attention, not under this heading, but under the heading family provisions. I indicated during the Second Reading that this is a matter which should receive the constant attention of any Government. By accepting the principle of a family court, and so forth, we have already given an indication that we have specific actions in mind.

In Britain the principle of the prohibition on the alienation of a family home has already been introduced, and I discussed this recently with a well-known British legal authority. This gentleman, who holds an international key position, told me that this remedy is very seldom employed in Britain because it cannot be applied successfully. I did not verify the information, but I am merely telling hon members what I was told by a person whose opinion one should pay attention to. Therefore, although I accept the good intentions of the hon member for Sandton, I do not think this is the way in which this matter should be dealt with. If we are to do so to the satisfaction of the organizations involved here, we shall have to delay the Bill. I therefore ask you, Sir, on a point of order, whether this definition is not in conflict with the principles of the Bill.

Order! I want to point out to the hon the Minister that this is merely a definition clause. In my opinion the definition of “family home” per se does not affect a principle of the Bill. For that reason I am prepared to allow the amendment so that it may be discussed.

Mr Chairman, I then submit that I oppose the amendment.

Mr Chairman, I will not keep the Committee more than a minute. I fully understand why the hon member did not want to quote the judge’s name after having heard what he wrote. However, the argument that the definition bristles with difficulties is not an argument that I would reject out of hand because it certainly has its difficulties. I do think that the judge who wrote it indulged in a little bit of negative nit-picking because what in effect has been said by the hon member for Mossel Bay and the hon the Minister is that it is outside the bounds of the expertise of our law advisers to draft a definition to satisfy the House in regard to the family dwelling.

You must stand or fall by your own definition.

No, it is the concept that counts. This side of the House is not wedded to that exact form of definition. However, if the hon member and the hon the Minister feel that there is merit in giving protection to the family home, it is very easy for the hon the Minister to go to the law advisers and to ask them to look at the definition and to come back with a better one. I would abide by such a definition as I too would like to create a law which gives certainty. I realize that this is possibly not a perfect definition but it gives expression in the law to the concept of providing protection for the home which houses the family and the children.

I really think that it is not a strong argument to say that purely because it is difficult to define and because we do not have the expertise to arrive at a proper definition, we therefore reject the whole concept. I do not believe it is so difficult to define a family home and neither do I think it is so difficult to find a definition that will in fact deal with at least 90% of the problem mentioned by that judge.

The hon the Minister also said that there is certain protection afforded in terms of section 43 of the Supreme Court Act. An order can be made in terms of which certain rights of spouses can be protected. That is so, but as the hon the Minister knows, when a property is registered in the name of one person, it can be sold without the knowledge of anybody else except the person buying the property and, eventually, the conveyancer concerned. It may only come to the attention of the one spouse long after the property has been sold when somebody tries to move into the home into which that family is residing. Therefore, Sir, I do not think that section 43 provides a full or complete protection.

The third point raised by the hon the Minister was the fact that this particular proposition did operate in Great Britain but that it was seldom used because of the difficulties encountered in the law.

It was something apart.

Yes, Sir, but the hon the Minister did use it as one of his lesser arguments. I want to concede immediately that we hope that this particular provision is not often used. However, it is being proposed here particularly to cover a case in which an individual or family can be victimized and gravely disadvantaged. We do not suggest that this will happen in the majority of cases but we do suggest that it is a protection that fits in well with the spirit of this reform.

Therefore, Sir, we shall persist with our amendment.

Mr Chairman, the objections raised so far have not yet been exhausted. If the hon member is going to weave his argument around definitions only, he is making a terrible mistake. There are other objections as well. People who supported it, for example, felt that it should be extended to marriages with another régime or, so it seems to me, marriages in community of property. This immediately causes problems. Other objections raised were that it did not include rented houses. This is unsatisfactory. If a person has a registered lease, this gives him a real right. This has not been included, and what are we to do about it? There is also the objection that a third party may be prejudiced. It is not only a case of the parties themselves. What about a third party, for example, a mortgagee who may possibly want to call up that mortgage? Of course this must receive precedence. Obviously it will receive precedence in such a situation. In such a situation one can, however, foresee the rights of third parties that are not covered by the motion.

There is no sanction for non-compliance with the prohibition either and no indication of whether the contract is null and void. This was not even dealt with. Because the matter is now becoming technical, I want to ask the hon member for Sandton what his reply to this is. [Interjections.]

†The hon member cannot even venture to give a reply because earlier this afternoon he could not reply either to the point in regard to the general power of attorney. This is a very complicated situation.

*Serious doubts are also being harboured in connection with a family home. I have already mentioned this to the hon member. But what is the situation with regard to a childless couple or parents with children who are of age? If I have understood him correctly, the approach of the hon member is that if it is a childless marriage, this does not apply. [Interjections.] I also want to mention another point. The hon member wants to prohibit a farmer from alienating his farm without his wife’s permission when, in her opinion, a family home is at issue. If the husband were to leave home and his wife with the intention of not returning, the husband could alienate the house unilaterally because the house does not qualify as a family home if only one of the spouses is living there. That is what the motion amounts to. The moment only one of the spouses is living there for a while, it is no longer a family home. The hon member for Sandton must be realistic. This matter was neither here nor there. I respect the good intentions of the select committee and I did consult the hon member for Mossel Bay with regard to my approach to this matter. For that reason I now want to suggest to the hon member for Sandton that he drop this matter.

Mr Chairman, the argument is just about over. The hon the Minister keeps on saying that I have not taken into account this view and that view, and he quotes all sorts of instances. I really think it is quite wrong the way in which he is bringing arguments to this House which he has never circulated to members of the select committee. Basically he is advancing arguments which the select committee has not had access to. If the hon the Minister was serious about bringing about some reform and taking into account the spirit of the Bill submitted by the select committee, he would have said to the select committee: I have received the following representations. Have a look at them and tell me what you think. But he has not done that. What he has done is that he has taken the select committee report, he has then asked for representation from outside instances, and he is not even prepared to tell me who has made the representations. He comes to the Committee with anonymous representations and then he says somebody says that and some institution says this or that, but he cannot tell us who he is quoting.

Do you not believe me?

Of course I believe you. I am just saying that I do not think it is a very nice thing to do. I do not think it is a very businesslike way of running a debate. The hon the Minister comes with these arguments to which we have not had access and then he says that we must react across the floor of the House to this and if one does not react immediately because one may not have heard him properly, he then says that one is being stupid because one has not heard or because one has not reacted quickly enough to some thought that he has put to one. I think that is ridiculous. That is petty argument which, quite frankly, I am not prepared to take into account. He keeps presenting technical arguments about whether we are trying to exclude a family that has no children in our definition. Of course we are not! Maybe we have drafted it that it could be read that way. Perhaps the hon the Minister’s law adviser could say: If you put in the words “and/or” or “if any” you fix the amendment up. However, the spirit of the amendment is to give protection to the family home. What that hon Minister is saying is that his Government has not got the expertise to draft a decent definition relating to a family home and therefore they say because of that and because of these anonymous representations they have received they are not going to agree. I think that is ridiculous and I suggest now that we go to the vote.

Mr Chairman, I do not think the statement by the hon member for Sandton, ie that he took it amiss of the hon the Minister for not having submitted the comments he received to the select committee, can be left unanswered. The hon member for Sandton knows very well that at that stage the select committee was functus officio. The select committee had its terms of reference and carried them out to the best of its ability. It published a report and it also submitted a draft Bill, and after that the task and terms of reference of the select committee were at an end. At the stage when the hon the Minister received the comments there was consequently no longer a select committee to which he could refer these comments.

He could have called the members together.

There were no members to call together because there was no longer a committee. Then the hon the Minister would have had to call together members of this House at random.

I have not seen the hon the Minister’s representations.

I spoke to the hon member all the time.

Mr Chairman, I do not know who is speaking now.

The hon member is speaking.

Thank you, Mr Chairman.

The hon member said that the hon the Minister referred to anonymous submissions that had been made to him, but how does this House function? The hon member for Sandton adopted the standpoint that it was up to this House to make the ultimate decision, and that is correct. How does this House decide and on whose initiative? On the initiative of the Government via the relevant Minister. It was the function of the select committee to make a recommendation to this House. It made its recommendation to the House, and with that its task was completed. After that, it was the prerogative of the hon the Minister and the Government to do what they wished with that recommendation of the select committee. When the hon the Minister and the Government preferred to introduce a Bill, as was done, they were acting in accordance with their prerogative.

Therefore, if the hon member for Sandton wants to move an amendment, as he has every right to do and as he has in fact done, the onus is on him to justify his amendment. He cannot turn around and say that the hon the Minister should rectify the deficiencies in his motion. The hon the Minister, after all, exercised his prerogative and introduced the Bill as he wanted it passed. The hon member for Sandton cannot now expect the hon the Minister to help him to introduce wording or aspects into the Bill other than those the hon the Minister himself saw fit to propose. No, Sir, I think the hon member for Sandton has allowed his emotions to run away with him. He is surely not serious about the argument he has just raised.

Mr Chairman, I just want to make the point that the select committee was not unanimous on this aspect. I think at least three members voted against this aspect. The argument was also advanced that this proposal undermined the position of the husband as common law head of the household. On that basis he can decide where the family lives and what its standard of living is.

Apart from the wording, which is a tremendous problem and has already been pointed out, I want to make the further point that it is not as though the other person who feels aggrieved about this has no remedy. If the husband acts in an irresponsible way, the wife can have him declared a prodigal to prevent him from selling that house.

Mr Chairman, I should like to welcome this clause and the principle of the accrual system. The hon the Minister, at the end of his Second Reading speech, emphasized that a marriage is a partnership and that this Bill will stress that aspect. I think that one of the most important things about the accrual system is that it recognizes the contribution of the woman who does not necessarily make a material contribution in terms of earnings to the marriage. You will know, Sir, that often women are embarrassed when they fill in “housewife” under “occupation” on forms. In fact, the terminology is being changed. Some people call a housewife a home-maker or even a domestic executive, which is perhaps more accurate.

I think that this clause is important because, in the first place, it recognizes that the domestic executive or the housewife who does not work plays an important role. I believe that that is essential. Secondly, it recognizes that the mother who chooses to stay at home and care for her children has a vital role. Hon members may be aware of a woman called Germaine Greer who was a campaigner for women’s rights and who has changed her attitude on many issues of which she was previously very critical. One of those is that she believes that the difficulties in raising children in a Western society are very considerable because the Western nuclear family creates a difficult environment in which to raise children, particularly if the wife is working. Indeed, that has been recognized in South Africa in the White community where fewer and fewer women are having fewer and fewer children. In a sense Germaine Greer’s comment that Western society is anti-child is true.

This accrual system recognizes that the woman who stays at home to look after her children makes a very material contribution to that marriage. Indeed, the anti-child syndrome is even evident at an hotel in Amiston where children under 10 years of age are not even welcome. In Western Europe the society is in a sense tending to become antichild. The accrual system gives material rewards to the woman who, while being capable of working, chooses not to work but to look after her family. This, I believe is important because there is a subtle pressure in some of the media and in some of the value systems of our society to make the woman who chooses not to work feel somewhat inferior or less good than the woman who chooses to work. In that sense I believe that this clause, which recognizes and gives a material benefit to that woman, is important because it will give her a greater sense of security and a sense of material status in that it recognizes her contribution as a mother and also as a home-maker for her family.

Clause agreed to.

Clause 3:

Mr Chairman, I rise merely to move the amendment printed in my name on the Order Paper, as follows:

Mr Chairman, I am prepared to accept the amendment.

Amendment 1 agreed to.

Clause, as amended, agreed to.

Clause 5:

Mr Chairman, I move the amendment to this clause as printed in my name on the Order Paper, as follows:

I am willing to motivate this amendment, but if the hon the Minister accepts it, I will merely move it at this stage.

Mr Chairman, did the hon member for Sandton withdraw the first amendment which he proposed to move to this clause?

Mr Chairman, my first amendment was withdrawn two days ago after discussion with officials from the department. The amendment which I have just moved is the second amendment which was placed on the Order Paper after the first had been withdrawn. Therefore, before motivating my amendment, can the hon the Minister indicate whether he will accept it?

Mr Chairman, I am prepared to accept amendment 2 of the hon member. The amendment is an improvement and was drafted after the hon member had had discussions with officials from the department. That is always desirable, and consequently I am prepared to accept the amendment.

Amendment 2 agreed to.

Clause, as amended, agreed to.

Clause 6:

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

As hon members will see, the word “shall” is merely substituted for the word “may”. The reason for this is that this particular clause deals with proof at the commencement, of the value of an estate when the accrual system has been adopted. The clause makes provision for parties entering into an antenuptial contract to make a statement before a notary public, as to the value of their respective estates, at the commencement of their marriage. As hon members will appreciate it is important with the accrual system that at a given time it must be known what the value of the estates were prior to the commencement of the accrual. That is the reason for the insertion of a provision allowing the registration of a statement setting out the value of the two separate estates.

The present wording does not make it obligatory for the parties to lodge such a statement but states that they may lodge a statement on the value of the assets within a fixed period of time. It states further that if they do not do this and an accrual subsequently takes place after the dissolution of the marriage in one form or another, the only sanction is that the estates of the two parties shall then be deemed to have been nil at the commencement. I believe that if we are to have a system of law and accrual in which certainty is created, in which litigation, to our best intent, is eliminated, and in which parties will know where they stand in relation to an accrual, it is far better to create a situation in which the starting point of the accrual is declared firmly at the start of the marriage.

The argument may be put forward that there is no sanction if this is not done and therefore an imperative cannot be created in law. I thought about that, but by substituting the word “shall” for the word “may”, one creates a duty which will be transmitted to the notaries, attorneys and people who deal with the drafting of antenuptial contracts to point this out very cogently to contracting parties and parties intending to marry. I think one will have a situation, if one creates it in the imperative, where 99% of marriages will start on the firm basis of a declared situation relating to their estates at the beginning. The sanction for the 1% who do not do it will only be that they will then be regarded as having started at a nil base. However, if that is not done I believe that there is a grave possibility that many hundreds, perhaps even thousands, of marriages will start without any statement having been lodged at all which may upon dissolution whether by death or divorce, result in unnecessary litigation relating to what the position was some 20 years before. I believe that when a marriage starts we are in a situation where we can create certainty now. I believe it is more desirable to do that, and that is why I argue the amendement.

I can also see a further argument against this—it was mentioned in the select committee—namely that there may be certain couples who do not wish to disclose in a public document the value of their personal estates. I concede that this may well be the case. I believe that there will be some people who may not wish to disclose in their antenuptial contracts lodged with a notary and in the deeds office their personal estates. With my amendment they have the free right to do that. The only sanction is that upon dissolution they will be regarded as having had a nil estate at the beginning. I feel it harms no one. I do, however, believe that by insering the word “shall”, thereby creating an obligation, particularly on the notary, to see to it that the antenuptial contract is completed correctly, greater certainty will be created. It will also eliminate litigation which could arise if the statements were not placed in the ANC’s in the first instance.

Mr Chairman, of course I agree with the hon member for Sandton that if is desirable that when the parties conclude an antenuptial contract they should also draw up a statement of assets. It is obvious that this will greatly facilitate matters. However, the problem I foresee if we were to accept the hon member for Sandton’s amendment is that we shall not only be establising “a duty”, as he put it, but in fact a legal obligation. It does not make sense to establish a legal obligation if a sanction is not also attached to it. What is the situation going to be when parties enter into a valid antenuptial contract but fail to comply with this legal requirement? Then there is a chaotic situation. That is why, if we were to accept the hon member’s amendment, we would have to go a step further and spell out exactly what the consequences would be if parties failed to comply with this statutory requirement.

As the Bill reads at present, it is in fact made quite clear that it is desirable for the parties to attach such a statement of assets. Subsequently the Bill also indicates what the consequences will be if this is not done. To take it further than that, however, and make a statement of assets a legal requirement and then simply leave it to the notary to draw the attention of the parties to the fact that such a statement must be included is not meaningful.

The notary is deemed to know that the Bill presumes that a statement of assets is being attached. He is supposed to know what the problematical situation would be which could arise if such a statement were not attached. For that reason it may be accepted that he will also give his clients positive advice as far as attaching such a statement to their antenuptial contract is concerned. To take this any further, however, would cause a chaotic situation to arise, and for that reason the hon member’s amendment cannot be accepted.

Mr Chairman, I want to raise a little technical matter with regard to the hon the Minister’s dificulty in regard to the registration of the statement contemplated here. Firstly, the statement that is to be made by the parties can either be attached to the antenuptial contract at the time, or within six months thereafrer.

Is the hon member raising a new point?

Yes, this is an entirely new point. Perhaps the hon the Minister would prefer to complete the other point first.

Mr Chairman, I am not prepared to accept the amendment because if there is a nil return.

we impose a duty without a sanction. However, suppose there has to be a sanction, is it fair towards a newly married couple with a nil statement to make them incur costs to make the statement whereas we can assist them with a rebuttable presumption, which we do? In other words, we assist them. Secondly, where a person fails to file a statement and he is a man of means, he does so to his own detriment. In that case the rebuttable presumption also becomes operative, with the effect that the net accrual value will operate against him. Therefore, a person of means will do so to his own detriment. He will jeopardize his own position. I think therefore that this is a very well considered clause and I should like to ask the hon member to withdraw his amendment as it does not take the matter any further or improve the Bill.

Mr Chairman, I am thinking really as a notary for the moment. Looking at the execution of an antenuptial contract, two people come along and present a list of their assets which they want to have attached to the contract which is then registered in the Deeds Registry. Normally documents of this nature registered in the Deeds Registry fall under the regulations of the Deeds Office, and usually there is some kind of a pro forma that one should follow. At this stage it is all left to the imagination of the notary as to how this form has to be drawn up. I should like to know whether there is going to be any form of guidance by the Registrar of Deeds of the Association of Law Societies as to what form or format this particular statement should take that is to be attached.

The next point I want to make is in regard to the value. Obviously, that is going to be left to the parties, and I do not think anybody is going to query whether it is the exact value or not as it is obviously the agreed value between the two people concerned.

The third point I want to make is that once this is filed in the Deeds Office it contains a statement of, let us say, immovable property. It is no good referring in such a statement to a beach cottage in Amanzimtoti or a little business the couple may have on the coast. If it has anything to do with the Deeds Office, it will have to be registered there. For example, if it is immovable property, there will have to be an exact and full legal description of it giving all the necessary details. I take it that has to be controlled at the Deeds Office.

The next point I wish to make is that we are now asking the parties to file a statement of the assets of both of them. This is then attached to the antenuptial contract which is then filed in the Deeds Registry. The Deeds Registry is a public place and so that document becomes a public document. While conveyancers have free access to the Deeds Office, members of the public also have access on payment of a small fee. Should we not provide some measure of privacy in this regard? After all, if I am getting married I do not want all and sundry to know what my assets and liabilities are by reading my antenuptial contract, and I do not think anybody else would like it either. Therefore, I do think we should consider some measure of privacy as far as this matter is concerned.

In regard to parties who have registered antenuptial contracts, people who have been married for many years, there is provision that if notaries are no longer available, such antenuptial contracts can be sent to the custodian of their protocol. I am unsure of the position as at present. What happens where a notary is deceased?

It goes to the Registrar of the Supreme Court.

It goes to the Registrar. At one time we used to file our protocols and they used to be examined by the Receiver. However, they are not examined any longer.

I am sure that it still has to be done on an annual basis.

No, not any more. Ido think, however, that some provision should be made in this regard. It is no good sending them to the custodian in any case because that is rather a dead end. I hope the hon the Minister will give consideration to this matter.

Mr Chairman, the hon member for Hillbrow has raised a few matters of practical importance to which I wish to reply, perhaps not in the way in which he would prefer me to reply, namely with exact reference to the applicable legislation. However, I think that the general lines of practice applicable to the notarial profession are well known. It is an office that is highly respected throughout the world and it is also an office that is controlled by the Supreme Court. On the demise of a notary public his protocol is filed with the Registrar of the Supreme Court, as far as I am aware. If that is no the case then naturally we shall have to take the necessary steps to ensure that that protocol is properly protected and retained for posterity.

I think the hon member should look at clause 6(1) which makes provision for a statement of value although it does not require a detailed statement of assets. This means therefore that only a net value will be filed with the antenuptial contract. [Interjections.] The hon member does, however, have a point in regard to a possible breach of privacy in that other people would have access to it. However, that is the case with any notarial document. It is available for public scrutiny against payment of a certain fee. However, if people do object to documents of this nature being available for public scrutiny, and they do not file a statement, the rebuttable presumption will become operative and a nil statement will be taken as being the initial statement. Therefore we do protect people to a certain extent. However, I do not think that we can argue at this stage that people are now going to be subjected to public scrutiny just because they file this initial statement. The very fact that people enter into an antenuptial contract means that it is open to public scrutiny. Whatever is decreed by the wife to the husband or vice versa becomes a matter for public scrutiny. However, if the hon member feels very strongly about it we can have another look at it, but I do not think that that has been the intention of a notarial agreement, because just like any other deed it is open to public scrutiny. Nevertheless, if the hon member feels very strongly about it I think it is a matter that could be looked into on another occasion, but not now.

I think that I have now dealt with all the matters that have been raised and I do not think that we can take the matter any further. I thank the hon member for raising these various matters.

Mr Chairman, I do feel strongly about this one point and I would like the hon the Minister to consider it at a later stage. I understand that there is nothing one can do now, but I think it is a matter that will have to be attended to in consultation with the Registrar of Deeds. What we are doing here is a very good thing and we support it fully. I do not want the Bill to be put off or deferred from doing it because they are afraid …

Except that it is not a detailed statement.

No, but it does state that a person has certain assets and it will therefore have to be a very broad statement. I think that we should have to avoid the details of the assets. However, it is going to be a very interesting document as far as creditors are concerned. They will be able to look up the antenuptial contract of debtors to see what their estate is, and there are also a lot of other implications. So I think the hon the Minister must give it some thought. We want to encourage people to do this and where possible granting some kind of privilege.

Mr Chairman, I do not want any misunderstanding on this statement. No detailed statement is required. The provision is very clear. It states:

He may declare it in a statement, the net value for the purpose of a commencement value at the commencement either of the marriage or from the date when the accrual system will become operative. Does the hon member accept that? I do not want any misunderstanding to emanate from that.

Mr Chairman, following on the points that the hon member for Hillbrow made and the hon the Minister’s reply, which we appreciate, could we not from the very inception of this legislation ensure that statistics are kept which might be helpful in making future decisions as to how many people file a statement with the antenuptial contract and how many do not. Perhaps one will find that the figures will be illuminating once they emerge and it might guide us in the future in making a decision as to whether we should look at it again.

Mr Chairman, as it is there are statistics available in regard to marriages contracted in and out of community of property. I agree with the hon member for Sandton that it would also be very useful to know in what cases the accrual system was excluded or not. I think that is what he was referring to. I think it is important. If it is in any way possible to keep such statistics—it is not, of course, always possible to keep all statistics up to date—we shall definitely look into it. It would be very useful to determine how many people did this, in fact, exclude.

How many people sign a statement and how many do not.

Secondly, we must determine how many people file this together with the antenuptial contract and how many do so afterwards. I think that is a very useful idea. In both cases it would be very useful to keep statistics.

Mr Chairman, may I put a question. I understand from the media that the hon the Minister and his department will issue an information pamphlet which I think will be distributed to magistrate’s courts and other public offices and which will contain all the information. Would it be possible for us to have a copy of that?

Mr Chairman, what I did say in my reply to the Second Reading debate was that we would make a poster—not a pamphlet—available in public places. Now that I am mentioning this, let me point out that some of the media have interpreted this as being a poster setting out the rights of women. That is not, however, the intention. The intention is to set out the rights of the parties, because this also embodies benefits for the men, and no one can deny that. We consequently speak of the rights of the parties, but not even the parties’ rights as such, because I prefer to speak of the choices being made available to the parties. We shall be publishing that information on a poster, not in a pamphlet. If the hon member wants to hang it in his home, we shall make it available to him. We should appreciate it if he would display it in his home.

Amendment 1 negatived (Official Opposition dissenting).

Clause agreed to.

Clause 9:

Mr Chairman, this clause relates to the forfeiture of the right to accrual sharing. It states that a benefit may be declared forfeit either wholly or in part. I am not going to move the amendment which stands in my name on the Order Paper although I am going to move the exact same words. I want to move those words half a sentence earlier than one finds them on the Order Paper. I therefore move as an amendment:

The clause, if it is amended, will read:

I think it is grammatically much better to insert those words there rather than to add them at the end of the sentence. [Interjections.]

Mr Chairman, I think the hon member’s new amendment will just add to the confusion. The new wording would then be “which may on divorce on good cause shown be declared forfeit”. I think he should devise a third alternative , because these options are too limited.

*I do not want to take this matter any further. In section 9 of the Divorce Act we have full cover for the circumstances in which forfeitures can take place as a principle. The whole matter is quite obvious. Section 9 of that Act deals with the whole question of forfeiture in clear terms and I want to ask the hon member to accept that. If the hon member’s amendment were to be accepted it would affect the whole Divorce Act and the whole situation that was brought about in 1979, and I am sure that he does not wish to do that.

Amendment 1 negatived.

Clause agreed to.

Clause 11:

Mr Chairman, this is of course the clause I would have liked to have had amended had the House accepted the instruction I proposed and I gather that I will be out of order if I should try to move an amendment now. [Interjections.] I want to get a ruling from the Chair. Perhaps he has decided that it is not out of order, in which case I will move it.

I will not move the amendment and there is no point in repeating all the arguments which have already been used by hon members on this side like the hon member for Sandton and the hon member for King William’s Town, in favour of existing marriages being included in the abolition of the marital power. I am not going to repeat those arguments but I do want to reiterate two or three things.

Firstly, I agree with the hon member for King William’s Town’s standpoint that the main reason why the select committee did want to include existing marriages in the abolition of the marital power was not just a desire for uniformity, hut had been very much argued out in depth in the select committee so as to show the logic of the argument.

The argument was that logically there should be uniformity.

It was made clear that it was the principle of marital power which was objectionable as far as we were all concerned. That is why we thought that existing marriages should also be included in this instance.

The other point concerns the question of retrospectivity and I want to assure the Committee that retrospectivity was never in our minds. As the hon member for Sandton said, contracts already in existence stood, but future contracts after this Act has been promulgated, would be affected in respect of existing marriages as well as in future marriages.

How can you say it was not in our minds when we in fact discussed it?

When we agreed that the abolition should be applied to existing marriages we were not thinking of wiping out existing contracts, and that is what I mean by retrospectivity not being in our minds. I just want to put that on record.

The hon the Minister points out that there is an option now if both spouses agree, to opt out of the marital power in existing marriages. I am sorry however, that the clause which was considered in the draft Bill which provided that if one spouse unreasonably refused to change the marital system there would be recourse to the courts, has been withdrawn. I think that would at least have given some leeway in marriages where one spouse wanted to get out of the marital power and the other spouse unreasonably said no and yet was involved in perhaps administering the joint estate recklessly. So, while an aggrieved spouse can have recourse against the other spouse in an attempt to recoup losses, which probably could not be recouped because the money had already been gambled away or recklessly lost in some other way, she could at least be ensured that there would not be future maladministration of the joint estate, by getting the court to agree to wipe out the marital power. That is now gone. It would, however, have been very helpful had that remained. That was another point I wanted to make.

A final point in this connection is that there was not an option at the time of marriage, not to mention the ignorance of young people and more particularly of young women who, on getting married, have no idea of what rights they are giving away and that they become minors in law if they marry in community of property under the marital power system. If one wanted to get married in community of property because of the financial security it would give, when the marriage was dissolved either by death or divorce, one also had to take the marital power. That was part of the package deal. Therefore, the option was hardly a real option and I do not think it should have come into the argument at all.

The first part of this clause relates to section 25 and I have a further amendment on the Order Paper to delete that reference to section 25. I do not know, Sir, whether you are going to allow me to move the deletion of that.

The hon member will have a problem with that.

Can I convince you to…

I regret that the hon member cannot.

Anyway, I can advance an argument in this connection, not so?

Yes.

I will therefore argue the point. I shall start with it now and complete it when we get to clause 25, because I have a lot of things to say on that particular clause. First of all, hon members must realize that Black marriages differ from White, Coloured and Indian marriages. The norm in White marriages is marriage in community of property, up to now with the marital power and, after this has been promulgated, without the marital power. Marriage in community of property nevertheless remains the norm. In the case of Black marriages, the position is different. Incidentally, I hope that the hon the Minister is going to have a look at the situation as regards Indian marriages, because it is pretty complicated. I am going to give him a copy of the law case I have been reading which has made me aware of this problem. The Black marriage is out of community of property but with the marital power retained. So, it is a case of the worst of both worlds. The Black wives do not get the security offered by a marriage in community of property, but they are subject to all the disabilities which come with the husband’s retaining the marital power. I want that changed. I know that the Law Commission is examining the whole question of the conflicting rights of customary-law wives and civil-law wives, but the point I am trying to make, a point which the Law Commission bears out, as I shall prove in a minute, is that the removal of the marital power has nothing to do with the claims of the customary-law wife just because the marriage is out of community of property. In other words, the Black wife only has rights over her own property. Therefore those rights will not in any way affect the rights of a customary-law wife. It has nothing to do with her husband. It is her own property. I want the Black woman to have the right to manage her own affairs and to have contractual powers. I pointed out before, and I want to point out again, that a great number of Black families today are in fact supported by one wageearner only, that wage-earner being the wife. It is, therefore, quite wrong that she should not have contractual powers.

Mr Chairman, may I ask the hon member whether she is aware of the fact that there is no such thing as an Indian marriage?

Well, I meant a Hindu or a Moslem marriage. I meant Asian people marrying under either Hindu or Moslem law. I stand corrected. The hon member is quite right. However, I think I used the correct terminology in the Second Reading. It was the hon the Minister who referred to Coloured and Indian marriages.

He was wrong.

Yes, he was wrong as he so often is. [Interjections.]

I will argue this more fully when we discuss clause 25. There may be a whole weekend before we discuss clause 25 and the hon the Minister must please give some thought to the fact that it is only the contractual capacity of a Black wife who is married out of community of property that will be affected if marital power is removed from future marriages, as it is too late now to do it for existing marriages. The point which I am trying to get across it that marital power should be removed for future Black marriages.

Order! I regret that I cannot allow the hon member to move an amendment to that effect.

Clause agreed to.

Clause 13:

Mr Chairman, I move the following amendment to this clause:

The reason why I move this amendment is that during the deliberations of the select committee the hon member for Sandton and I did not press the matter of equal guardianship between husband and wife over minor children. As I mentioned during the Second Reading debate, we did this for purely stragetic reasons. We thought that if we made a major issue of this in the select committee we would distract attention from the very good and the positive progress which was being made by the select committee on a number of important issues, such as the removal of the marital power. We were pressing for its abolition in existing marriages as well as in future marriages.

Then too there was the question of the right to apply for the discretion of the court to be used to intervene in the case of a broken marriage where the wife is left penniless where the court may intervene and allocate a portion of the assets of the estate in an out of community of property marriage, and we were also hoping to get the right of the court to intervene in the case of a surviving spouse who had been disinherited. We made such excellent progress as far as that was concerned, that we decided to leave the issue of guardianship to one side. I am afraid that the hon member for Mossel Bay has roused me again on this issue.

Which one?

On the guardianship issue, by telling me that we had missed a golden opportunity. I am very annoyed about that because he knows full well that this is a major issue with women. I would like to know whether the women’s organization which has written to the hon the Minister on marital power and which he referred to, expressed any views on guardianship.

It was not at issue.

As far as I am concerned, it is now an issue.

Why?

Why does that hon Minister ask “Why”? The hon the Minister of Constitutional Development and Planning made such a contribution to the history of this country by changing so many important things …

Reform.

Yes, reform and all that jazz. Does he know what this issue is about? I want to tell hon members that way back in …

Is your caucus supporting you in this?

Yes.

On this issue?

Yes, on this issue. [Interjections.] I canvassed the caucus, not all but the overwhelming majority of members. [Interjections.] I do not know how many. [Interjections.] Hon members are now wasting my 10 minutes. I do not know how many hon members of the hon the Minister’s caucus supported or did not support him. I am not asking that. He received the support of the majority, and that is all that counts. I have an overwhelming majority.

I can see what is going on behind your back.

That is the minority! [Interjections.] That is why that is going on behind my back.

I can see how he is pulling faces.

I do not care. [Interjections.] He and I disagree on some issues, and it does not matter. Normally one would leave this sort of thing to a free vote anyway.

She has democrats behind her back.

That is right, and they accept the will of the majority. [Interjections.]

You are always the majority no matter how many are against you.

Helen, don’t get sidetracked.

Hon members are now wasting my time, and I am not going to be sidetracked.

I want to say that all the women’s organizations way back in 1949 when the Twenty-man-Jones Commission into the legal disabilities of women was sitting sent in memoranda asking that this be changed. I want to read out what the Vrouekomitee of the NP in the Transvaal said.

Mr Chairman, on a point of order: Is it in order for the hon member to move an amendment here which is completely in conflict with the principles of the Bill and also with the principles contained in the clause, and moreover to conduct a lengthy argument about it?

Will the hon Minister just please address me on what principle it is that the hon member is ostensibly encroaching upon now?

On the one hand this Bill deals with the matrimonial property system, the accrual system and a basis on which they can be made applicable in marriage. On the other hand it deals with marital power which relates to a system of administering a marriage in community of property but which is also rooted in the common law, involving as it does the powers of the husband over his wife and children and also his powers to be acknowledged in law as head of the household and to decide where the family will live, etc. In order to make absolutely sure that we are dealing with a limited aspect of marital power, viz only the capacity of a wife to contract and to litigate, the Bill very clearly went further, and the select committee, as a whole, supported this.

†Clause 12 of the Bill reads as follows:

Then, to obviate any possibility of misunderstanding, clause 13 reads:

The hon member’s amendment is aimed at eliminating the guardianship element of the husband’s position. That is not at issue. If the hon member now proposes to remove this I suggest it is contrary to the principles embodied in clauses 11, 12 and 13. It will go to the very root of the situation. I can advance many other arguments, for example practical reasons, why it is inadvisable to accept the hon member’s amendment. However, I just advance the argument now that it is completely against the principles already accepted.

Mr Chairman, I disagree on this point of order. I agree almost to the fullest extent with the hon the Minister’s description of the main principles of the Bill but the deletion of the words “and guardianship” does not in fact attach any difference. It does not attack the law relating to domicile as the head of the family. It relates to a minor aspect in relation to this Bill as a whole and it can in no way impinge upon any of the major principles of the Bill. I accordingly think that the hon member is entitled to move her amendment, and it is for the Committee to adjudicate on it according to its merits.

Order! Does the hon member for Houghton wish to address me further before I give my ruling?

I am waiting for your ruling, Sir.

I rule in favour of the hon member for Houghton. The hon member may proceed with her amendment.

Mr Chairman, the hon the Minister himself said that this was really not such a major issue that men think it is. The head of a house in that situation is untouched and this situation as far as domicile is concerned is untouched. What is touched is joint or equal guardianship—and really that is the same thing—of minor children. Now, why on earth should a husband object to having equal guardianship of the children of the marriage? Long ago Judge Twenty-man-Jones took evidence on this and every womens organization was in favour of equal guardianship. This is what the Women’s Committee of what was the HNP stated in the Transvaal:

The hon the Minister will find that on page 19 of the Twentyman-Jones’ report. The Vrouekomitee accordingly recommended:

All the other women’s organizations summed up their views by stating:

The Twentyman-Jones Commission ended up by recommending joint guardianship. As I see that, joint guardianship applies to the marriage of a minor child; both parents have to agree. Equal guardianship would mean agreement also over matters like the education of the child and the administration of the property of the child. The wife will have equal rights of administration of property of the joint estate when marital power is abolished. Why can she not have equal rights in the administration of property of their child? It seems to me to be just a logical extention of a principle which has been accepted. What can be wrong with it? In most marriages this is not an issue. Parents may disagree; they sit down and argue it out. Should the child go to this or that school; shall it go to boarding school or shall it go to the nearest day school; shall a child be allowed to go away on holiday with another child or not, etc. These are the issues that arise. They arise in every marriage and they are amicably settled. This is particularly so where the marriage is a happy one and, where it is not a happy one, it is going to fail on other issues as well as issues such as this. Therefore, I do not know why hon members should be so worried about this. It is not as though the male member of the family is forgoing such an enormous prerogative. The major thing is probably the marriage of a minor child. That is likely to be a major dispute but in this regard there is already joint guardianship. I think it would be a very fine gesture indeed if hon members on the select committee who recommended that we do away with so many important things, such as the abolition of marital power in existing marriages, would concede that the rights of the mother are of equal importance to the rights of the father in guardianship. The question of custody is a different matter. That is decided by the courts in the interests of the child. In the event of a dispute in regard to guardianship, we are setting up family courts and the parents can apply to such a family court for a decision. That is one of the improvements the hon the Minister of Justice is going to introduce. Presumably then, any dispute of this nature in regard to guardianship of the child could be decided by a family court.

Every country that I have looked at has equal guardianship of children. In America it would be contrary to the Fourteenth Amendment of the Bill of Rights if there were unequal rights of parents as far as guardianship is concerned. In Great Britain, in 1925 the Guardianship of Infants Act finally established equality in law between mothers and fathers as far as the guardianship of children was concerned. That was as far back as in 1925. Indeed, as far as I can see, most Western countries have equal guardianship. We have joint guardianship but that is limited to the question of the marriage of a minor child. I want this extended to education and also to joint administration of the property of the child. That is all I want. There is nothing sinister involved.

Mr Chairman, the hon member for Houghton referred to a remark which I made during the Second Reading debate when I suggested that it might be possible that the hon member had missed a golden opportunity on the select committee. This, however, reminds me of another remark which I made on the select committee when I suggested to the hon member for Houghton that it might be a good idea if we decided to give the marital power to the women, whereupon she reacted by saying that it was not a bad idea at all because, after all, the men had had it so long that it was time that the women had it for a change. Inasmuch as I was not provoked by that remark by the hon member for Houghton, I do not know why she should be provoked when I say that she has missed a golden opportunity. [Interjections.]

Let me remind the hon member moreover that during the Second Reading debate I went on to say that I doubted whether such an opportunity would present itself again to her. Now, however, she has moved this amendment, and I repeat that I do not think that this is the opportunity for it. Unfortunately, the hon member has missed the boat. On the select committee we may perhaps have been more amenable to accepting a proposal of this nature but I do not think that we can entertain the proposal of the hon member for Houghton at this stage at all and therefore I do not support it.

Mr Chairman, I have indicated, with due deference to the Chair, that I am of the opinion that this is in conflict with the principle of the Bill. I am still of that opinion, in spite of your ruling, Mr Chairman. I take it, however, that you want to give the hon member for Houghton an opportunity to put her case, and in the light of that fact, it is perhaps a fair ruling, and I accept it as such. The fact remains, however, that the hon member for Houghton wants to try, with one stroke of the pen, to correct what it took the courts, under the 1953 legislation, two pages to set out in regard to the power of the courts to grant guardianship to women. The hon member now wants to jeopardize that by the omission of a single word, because then that leaves another tremendous gap in regard to what the legal position is. I think it is a fairly arrogant approach, on the part of the hon member, to think that with one single stroke of the pen she can rectify a legal position that has developed in our common law over a period of many years, literally centuries. Even if one wanted to support her, that is unknown territory. With her amendment she would still not be bringing about equal guardianship. Does she realize that? She would not be achieving her goal at all. What she would indeed be creating would be a tremendous vacuum. She would then, in fact, be prejudicing her case. As I interpret the matter, the further provisions of the 1953 Act could immediately be prejudiced. Al that this amendment is providing for is that the arrangements in respect of guardianship and so on, which are very wide-ranging and do not only include children, are not prejudiced. As far as she is concerned, I do not think we can concede the point. The hon member will surely have an opportunity, in future, to put forward her point of view. I think she has now had sufficient opportunity, and I really do suggest that we now vote on this clause and merely decide to differ.

Order! In view of the remark the hon the Minister made, let me just say that he is quite right in feeling that I wanted to give the hon member for Houghton an opportunity to put her case and the Minister the opportunity to reply fully on the merits of the case.

Mr Chairman, this clause describes basically the rights of the parties to deal with their respective properties and it is cast in the form that both parties have full jurisdiction to deal with the property of the estate in community of property, but in instituting a system of concurrent administration certain aspects are described which may not be dealt with by individual spouses without the consent of the other spouse.

There are two such categories. The first category is the one contained in subsection (2) in terms of which a spouse may not deal with certain aspects of the joint property without the written consent of the other spouse. Then there is the second category in terms of which a written consent is not required. Subsection (2)(h) states that such a spouse shall not without the written consent of the other spouse bind himself as a surety.

Binding oneself as a surety is considered a serious act and therefore it is prescribed that written permission be obtained. Yet in subsection (6) certain exceptions to the rule created in subsection (2) are set out. Subsection (6) states as follows:

It is my view, the view of this side of the House and I think also the view of the select committee, that suretyship, creating a surety could in fact be most disastrous for a marriage. Many of us who have been in practice will have experience of occasions when entire families have been rendered destitute and ruined because of suretyships signed by either a husband or a wife which when called in and executed upon had actually rendered that family into a ruinuous state. Such sureties could well be executed during the ordinary course of business and very often when a man or a woman in business has to enter into some risk venture a personal suretyship in the course of concluding that business is required. If that venture goes wrong for some reason or other it could be disastrous for the joint esate. It is my view that this is not a fit and proper instrument which should be excluded from the provisions of subsection (2). I believe that under any circumstances a spouse should not be entitled to enter into a suretyship without the written consent of the other spouse. If the hon the Minister says, and I am not sure what his reaction is going to be to this plea and he may even react positively to it, that this will make it impossible for some people to carry on business there is nothing preventing spouses from giving blanket permission if they so wish, but then they do so with their eyes open and knowing the risks which can be placed on the family and on the family estate in the process.

I would ask the hon the Minister to think very carefully before he rejects the amendment I want to propose because I do believe that by excluding paragraph (h) this will ensure greater protection for families and will at least provide some protection in the case where a husband or a wife conducts a business and enters into a suretyship which could have very serious affects on a family. I therefore move the amendment standing in my name on the Order Paper, as follows:

Mr Chairman, let me be the first to concede that the hon member is right in saying that with the dispensation now being introduced it is possible for a party, in doing business or signing surety, to be doing so to the detriment of the other party. What I object to, however, is the way in which the hon member set out the problem, as if it would only be the man who would, in this case, be adversely affecting the other party. It could surely either be the woman or the man.

That is what I intended.

This clause makes provision for the fact that in the normal course of business, for example in the granting of surety, the other party’s permission is not needed, since we are of the opinion that this would totally inhibit commerce. The hon member was a practising attorney and will know that when one is administering insolvent estates and the Master of the Supreme Court requires some form of surety, it is the curator, executor or trustee who is expected to furnish that surety. Normally one does not have the tremendous funds, deposit or concrete suretyship that is requested. In practice one gets an insurance company to provide the suretyship. One then gives a contra-guarantee. The hon member knows what the practical procedure is.

Let us suppose that there are 16 team members in a firm—this is not really a question of 16 captains—with one chairman or senior partner and that four or five of them deal with estates and have a big practice. Such a partner’s wife would have to join him at the office on a full-time basis signing contra-guarantees. That is a slight exaggeration, but it illustrates the type of situation that could crop up.

Thus we have the example of a woman who has a small florist, and a company at that. She is asked to endorse the company’s surety at the bank. Such a person then becomes an individual surety for the company. Why should it be denied to women, when men could previously do so? I thought hon members had so much confidence in women. Previously men could do it, but the hon member for Houghton and the hon member for Sandton come along and say that now that women are also obtaining those powers, permission must be given. It seems to me those hon members are a bunch of misogamists. I am very concerned about the situation. Previously they never once objected, but now that women are also being empowered to stand surety in the normal course of business activities, they are objecting. No, Sir, on behalf of the women of South Africa I cannot accept that chauvinism.

Mr Chairman, with respect, I honestly think that the hon the Minister’s last argument was frivolous, tendentious, vague and embarrassing and should be dismissed with costs, because he knows full well that this has nothing to do with whether any of us here are suddenly worried that there will be problems because women have been granted certain rights. That is quite ridiculous. What it is really all about is that an act of suretyship is a serious matter which could involve a lot of money and could in fact be ruinous for families. It is our feeling that in the normal course of events the parties should in fact consent between themselves before such a suretyship is signed.

The hon the Minister has quoted a good example of where this would be impractical. I agree with the hon the Minister that it would be impractical for a spouse to go and sit in the office of the other spouse to find out in respect of each and every suretyship which he signs in relation to his administration of an estate whether he was signing it correctly. That would obviously be impractical. That could, however, easily be overcome by a general document saying “I hereby give my husband/wife permission to sign all suretyships in the normal course of business”. That would then be the end of it. That would be the necessary consent.

However, I think that, when it comes to a business venture in which one spouse has no say, whether it be the husband or the wife, and pursuant to that business venture a risk is going to be taken which, because the marriage is in community of property, could place a risk on the entire family, the other spouse should be consulted and consent should be obtained. That is our reason and not that we are suddenly adopting a stance in opposition to the stance we adopted previously. I thought that that was rather a bad argument on the hon the Minister’s part, if I may say so.

Mr Chairman, I said earlier that we have here a case in regard to which problems could possibly arise. Certain aspects, however, must again be weighed up.

New opportunities are being created for the uninhibited signing of surety in the commercial field. I think one should examine how this will work in practice. I do not have any statistics regarding the number of insolvencies or sales-in-execution in which surety had a detrimental effect on the estate. One would be able to present a better argument if statistics were available. The fact is that this is a sound principle that has applied to men up to now, a principle which is now being extended to women. That is the implication.

It is not a sound principle.

It is the principle which has applied up to now in the case of men and which is now being extended to women. In other words, we are not discriminating against women. The hon member cannot argue against that.

We shall, however, be keeping an eye on the situation in practice, and if it so happens that one of the parties is guilty of any abuses, this clause will be reconsidered. At this stage the matter is being placed on the scales, and we attach greater weight to commerce and the confidence in the women of South Africa.

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

As the hon member for Sandton has explained, clause 15 deals with marriages in community of property and provides that for certain transactions written consent is necessary between the parties while for others verbal consent is sufficient. My amendment refers to subsection (9), which in essence provides that even where the necessary consent, which is required in terms of subsections (2) and (3), was not obtained by one of the spouses, as far as third parties are concerned, such a transaction will be valid.

The second aspect regarding subsection (9) is that where as the result of such a transaction there is a loss, there should be an adjustment in favour of the spouse who has suffered such loss under the accrual system.

If one looks at the history of this clause, one finds that the 1979 draft Bill of the Law Commission did in fact not contain that portion of the clause which I am now asking to have deleted. In other words, it did not contain the following words in paragraph (b):

These words did not appear in the 1979 draft Bill. That does not necessarily mean much. I merely point it out. However, the final draft Bill put forward by the Law Commission included these words. It appears to me that if subsections (2) or (3) of clause 15 already define the prohibition, that is sufficient to indicate the circumstances under which a spouse can ask for a readjustment. I cannot see any justification for retaining the words in paragraph (b) which I want deleted because it will make it very difficult to obtain clarity in practice. In essence the situation which we hope to achieve is that where one of the spouses without the necessary consent has alienated the property or entered into a transaction, the other spouse should be entitled to an adjustment if a loss was incurred. I do not believe that this complicated qualification which is contained at the start of paragraph (b) will in any way provide clarity or assist anyone, least of all the courts who will have to implement or to interpret these words.

Mr Chairman, I am sorry, but the amendment is unacceptable. Acceptance of the amendment would result in the fact that if a spouse were to judge objectively, believing that he would obtain permission, adjustment would be in favour of the other spouse in the division of the joint estate if, as a result of the transaction, the estate were to have suffered a loss. As a result of this I cannot accept the amendment.

Mr Chairman, I tried to understand what the hon the Minister was saying but he was mostly inaudible. He spoke so fast that I am not sure what he was trying to say. If I understood him correctly he is trying to cover the situation where a spouse thought that he would get the permission from the other party and then entered into the transaction. Subsections (2) and (3) specifically state that consent has to be obtained. Either consent must be obtained or he can proceed in the hope that at some stage he will get consent. The retention of the words which I want to delete will confuse the whole issue. Can the hon the Minister tell me whether a spouse has to get consent before entering into these transactions, before alienating assets, or does he not? If he does not have to get the consent then he can do what the hon the Minister now suggests, namely to enter into a transaction and alienate a specific property on the assumption that the other spouse will agree to it. That to me does not create clarity.

I did not want to refer to this, but the hon the Minister at the beginning of the debate made himself out to be a purist as far as the interpretation of definitions is concerned. If ever there was a clause where there is scope for criticism as far as clarity is concerned and where there is going to be litigation because of lack of definition, then it is clause 15. We approve it of course; I merely want to point this out. What I am suggesting is that we should not add to the already loose wording in this clause by allowing these words to remain. Let me repeat a simple question to the hon the Minister: Does a spouse need the consent before entering into those transactions under subsections (2) and (3), or can he say that he assumes that the other spouse would agree?

As an absolute precondition?

That is what the clause says.

Read subsection (4) as well.

Subsection (2) states:

Subsection (3) states:

It then mentions numerous transactions. Such consent therefore clearly has to be obtained before such a transaction is completed. It will not create clarity if we are now going to say that a spouse can either get consent but if he does not get it he should not worry, and if he assumes that he will get it he may nevertheless proceed. That is the effect of the retention of the words in subsection (9). I do not believe it will assist anyone. That is not what is stated in subsections (2) and (3) of this clause.

Mr Chairman, the hon member did not take the provisions of subsection (4) into account. Subsection (4) reads as follows:

That permission, in unconditional terms, is therefore not a prerequisite. It can always still be ratified. Subsection (9) very clearly provides:

That is in terms of section 16:

What are we endeavouring to do here? We are attempting to ensure that where permission is withheld or cannot be obtained, the parties will not, in any event, suffer any losses. The hon member’s amendment is well meant, but I want to repeat that the effect would be such that in the case of a spouse objectively feeling that he would obtain permission, and then not obtaining permission, for example, adjustment would take place in favour of the other spouse, upon division of the joint estate, as a result of a possible loss suffered by way of the transaction. That is what we are covering here, and if the hon member finds anything wrong with that, I cannot help him any further. I appreciate his efforts to improve the legislation, but both the select committee and the commission thought deeply about this matter and recommended the clause as it reads at present.

Amendments 1 and 2 negatived (Official Opposition dissenting).

Clause agreed to.

Clause 21:

Mr Chairman, I move amendment 1 as printed in my name on the Order Paper, as follows:

The object of the amendment is to ensure, beyond all doubt, that when a court considers a change in the matrimonial property system to change a community of property system into an antenuptial system, the question of matrimonial power will, in fact, be dealt with.

Mr Chairman, I should like to just put a point to the hon the Minister on this. I will not discuss his amendments as we support them. The hon the Minister will notice in clause 21(2)(a) that marriages that have been contracted out of community of property can be converted within the time period to a system in which the regime of accrual applies, which I think is something to be welcomed. However, taking into account the cost of attorneys and drafting of documents, I wonder whether the hon the Minister will not consider trying to negotiate with the law society a specific method or form in which this accrual can be adopted so as to ensure that there is reasonable standardization in the first place and, secondly, to ensure that the costs of adopting this form of accrual by virtue of a new notarial contract will be as little as possible. I would not like the situation to arise where people avoid adopting the system which may well be to their advantage, purely on the ground that they cannot afford to do so. I wonder whether the hon the Minister will not please consult the Association of Law Societies to see whether something cannot be done in regard to this specific contract so as to ensure that it is drawn up in a simple way, perhaps by way of endorsement, but certainly in a simple way carrying a nonvariable cost; in other words, that the cost involved will be countrywide. That cost can then be made known to people so that they can get this particular task attended to. I hope the hon the Minister will react to this because I want to say that I would hope that the largest number of people possible would wish to take advantage of these provisions to be able to do so.

Mr Chairman, I move amendment 2 to this clause as printed in my name on the Order Paper, as follows:

The hon member is actually asking me to ask the legal profession to limit the length of these documents; in other words, to use “whereas” and “now therefore” as little as possible. Very recently I saw an antenuptial contract which comprised virtually only three or four lines but which was a completely valid document. It is quite possible to make use of a very brief document which, of course, will have the same effect.

As to the question of costs, I shall refer the request of the hon member to the attorneys’ profession. Of course, they cannot deviate from the intrinsic requirements of a notarial deed namely the stamp and signature of the notary public and, of course, an endorsement to the effect that it has been attested to before the notary public. There can, of course, be no deviation in that respect. However, I take his point, it is a very interesting thought and I shall pass it on the attorneys’ profession.

Mr Chairman, the hon the Minister has been very helpful but I should like to refer to one further aspect. Before doing so, I want to say that I do not have in mind simply that he mentions quietly to the various office-bearers of the law society that he hopes they will limit their costs in this regard. I feel that the hon the Minister should actually take the initiative in this and make representations because I believe that this would be in the interests of a large number of people. We are introducing a system that is going to create the necessity to execute a specific document provided for in this new law, and I want to ask the hon the Minister to take a positive initiative to ensure that this new system be made available as cheaply as possible to as many people who wish to adopt it.

I should also like to refer the hon the Minister to page 30 of the report of the select committee. Under clause 21 I moved the following motion which was agreed to unanimously by the committee:

This will now be changed to two years, which I welcome:

and having such endorsement registered and so forth. Perhaps the hon the Minister could also in consultation with the Registrar of Deeds draw up the simplest possible form of acceptance of the accrual system which couples could then adopt if they so wished, perhaps by means of endorsement. Perhaps the hon the Minister would consider that.

Mr Chairman, having something recorded on an existing document already registered in the deeds office is an age-old and well-known procedure. The Registrar of Deeds and his people are resourceful. They will probably develop a rubber stamp with which to endorse it. It is also clear, however, that it must be notarial. Such a notarial contract submitted for registration in the deeds office must go through the normal channels. I do not think we would easily be able to amend this, except perhaps to state that there be an endorsement on the original antenuptial contract by way of cross-reference. We shall be putting into practice the hon member’s ideas and also those of the select committee. Our aim, of course, is to introduce simplicity.

That is on page 30 of the report.

Amendments 1 and 2 agreed to.

Clause, as amended, agreed to.

Clause 22:

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

1. 1. On page 17, in line 7, after “Transaction” to insert:
   • effected before or after the commencement of this Act

This amendment is self-explanatory.

Mr Chairman, I am prepared to accept it.

Amendment 1 agreed to.

Clause, as amended, agreed to.

New clause to follow clause 22:

Mr Chairman, may I ask you whether I am in order in moving the proposed new clause 23(1) at this stage?

In view of the decision of the Committee on Clause 1 I regret to inform the hon member that such amendment will be out of order.

As long as it is recorded.

Clause 23:

Mr Chairman, I have an amendment on the Order Paper which simply proposes the alternative clause that was proposed by the SA Law Commission as far as the household necessaries are concerned. I think hon members will be aware that there has been considerable confusion over this whole question of household necessaries since 1953. Up and till 1953 the common law obtained whereby both spouses had responsibility to contribute to the joint household. Then the 1953 Matrimonial Affairs Act gave women a considerable advantage in so far as section 3 of that Act overrode the common law of reciprocal responsibility as far as contributions for necessaries for the joint household were concerned. Section 3 of the Matrimonial Affairs Act gave the wife full recourse for all moneys that she had spent on household necessaries, against her husband. The amendment that was introduced in 1976 attempted to remedy what was considered an unfair advantage given to the wife in that regard. It made the right of recourse of a spouse dependent on any excess amount that had been spent on necessaries over and above the pro rata amount that they should have spent. There was trouble about the 1976 amendment. It did not clear up the difficulty at all. Although it set right the inequitable situation as far as male spouses were concerned, what it did not do was to eastablish clearly whether or not this was retrospective or not. There were three conflicting court decisions, I am informed. There was one in the Transvaal which said that the Act was not retrospective. There was one in the Eastern Cape Division which said that the Act was not retrospective. Then there was a conflicting decision given by the Orange Free State Division which said that section 3 was retrospective. The situation was therefore confused, and I may say that there was a pretty spirited debate in 1976 about the whole question and a proviso which I thought was a very important proviso was dropped at the last minute in the Committee Stage. That took away, shall I say, one of the remedies which was left to the wife in terms of which she could consider services rendered as part of the contribution.

We now have the Bill before us, and I think it protracts the confusion because it differentiates between those already married—that is, when the Bill becomes an Act—and those who are still to marry, in that there is a sanction on the former but not on the latter. In other words, people who got married before the enactment of the Bill have a sanction on them but people who get married afterwards do not have a sanction on them, regarding contributions to household necessaries.

I tried to find out the reason for that, and I was informed by Mr Henegan that this was because the accrual system would come into operation. I was informed that since the accrual system becomes the norm for marriages out of community after this Bill is passed, it is not necessary to have the sanction applying to marriages after the Bill is passed.

I want to point out that not everybody is going to take advantage of the accrual system because one can opt out of it by antenuptial contract. Therefore those marriages contracted after the enactment of the Bill and where the accrual system is not entered into, should also have the right of recourse. That is the major objection that I have as far as this clause is concerned.

Even where the accrual system does apply I think one can get cases where the husband has an income and/or means but he does not bother to supply anything to the household. He could be spending the interest on a large inheritance while the wife has had to supply all the necessaries to the household. Why should she not have a right to recourse against him in a marriage entered into under the accrual system after the enactment of the Bill? As a matter of fact, I think recourse should apply before or after, and that really is the main gravamen of my amendment.

I understand that matters are improved here because it now stipulates financial means instead of just income. That is an improvement because a lot of people have capital and property where they do not have income. It is quite wrong that those spouses should not have been liable to contribute to the necessaries of the household.

I think the amendment suggested is an improvement because it does, as I say, give the right to recourse to marriages entered into after this Bill is passed.

Mr Chairman, I am forced to acknowledge that the hon member for Houghton has me a little confused at the moment. When we considered this clause in the select committee, she made a proposal that was unanimously accepted by the committee. She then proposed that we adopt a certain wording. That wording was incorporated in the clause in a slightly amended form, but the embodied principle remains exactly the same. I find it strange that the hon member now comes to light with an amendment with completely different wording.

Mr Chairman, my amendment comes from page 76 of the Law Commission report, which is what I suggested in the select committee. If the hon member would look at the motion I moved in respect of clause 23 on page 32 of the report of the select committee, and then at page 76 of the English version of the report of the Law Commission, he would see that it is the same thing.

But the clause in the Bill we have before us now contains exactly the same principles. It has only been reworded.

Mr Chairman, I would just like to be helpful. I understand precisely what the hon member for Houghton is saying, but was also a little confused at first myself. When you look at page 32 of the report of the select committee you see that on clause 23 the hon member for Houghton moved the following motion:

That motion was agreed to and meant that the select committee opted for the alternative proposed by the majority. If you look at clause 23 which was agreed to by the select committee you see that it actually differs from the decision that was made as reflected on page 32. Somewhere along the line an error has crept in in respect of what the hon the Minister has in good faith transcribed from this report into the Bill and what was recommended and finally agreed upon by the select committee. The select committee did not write into its document the alternative as suggested on page 32. I think that somewhere along the line the intention of the select committee has been lost, perhaps through an error. What we have here in the Bill is not the alternative agreed to by the select committee. What we are trying to do, having noticed that error afterwards, is to bring the committee of this House back to the intention of the select committee.

In what respect does it differ?

Subsection (4) should be omitted.

Mr Chairman, just to add to what the hon member for Houghton has explained to the hon member for Mossel Bay, I want to say that in essence the only difference between the existing clause and the proposed amendment is to be found in subsection (4). If subsection (4) were to be removed, the clause would in essence state what the amendment seeks to achieve. What the hon member for Houghton aims at, as she has explained, is to provide for a right of recourse for those who married subsequent to the implementation of the Act. That is in fact the only difference between the clause and the amendment moved by the hon member for Houghton.

Mr Chairman, I think we should take note of the fact that the hon member for Houghton is moving an amendment that will result in the right of recourse applying to future marriages. In the light of the fact that we are dealing with the issue of an accrual system, the question is whether this is the intention. In support of her argument, the hon member very vaguely says—and this is the only important point she makes—that there may be cases in which it would, in fact, be applicable and where the accrual system does not cover the situation when a marriage is dissolved. That is what the hon member says. Since we are coming to light with a new matrimonial property system and an accrual system that we would like to promote, we had to give attention to the whole question of the right to recourse, etc.

What did the commission originally envisage? Initially the commission envisaged the abolition of the right to recourse, with a transitional period of three years in regard to existing marriages. Specifically in the light of vested rights, the alternative was preferably not to abolish, for existing marriages, the possible mutual right of recovery, merely abolishing it in the case of future marriages. The hon member for Houghton says the right of recourse should be retained in regard to all marriages. That is the gist of the difference between us. I think we must now content ourselves with the fact that the select committee recommended—and we accepted this—that the right of recovery merely be abolished in the case of future marriages and be retained in the case of existing marriages. The present Bill accords with that recommendation that we all accepted. Goodness gracious, somewhere we must reach a point where we stand or fall by the committee’s recommendations. Although the hon member for Houghton moaned and groaned in the select committee about an exception, she now reserves for herself the right to move a relevant amendment. We have said that we want to retain the right of recovery in regard to existing marriages because its abolition would be too drastic a step. On that score she agrees with me. We have, however, also reached the stage in regard to future marriages when, in the light of the select committee’s own recommendations, we must accept the accrual system and the eventual settlement when a marriage is dissolved. The hon member must now be consistent. I cannot accept the hon member’s amendment.

Order! There is no amendment for me to put. I can merely put the clause.

Sir, could you tell me why my amendment cannot be put?

The hon member is not allowed to move the amendment before the clause has been negatived. That is why I have to put the clause first. Then she can move her amendment. However, if the clause is not negatived, the hon member can unfortunately also not put her amendment. [Interjections.]

I think I am being discriminated against.

I have been trying very hard not to discriminate against the hon member.

Clause agreed to.

Clause 24:

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

The object of this clause is to bring about a uniform and comprehensive arrangement in regard to the marriages of minors. Hence the express provision about what would happen if not only parental permission was lacking, but also that of a guardian. The clause, however, does not go far enough in the sense that permission of the Commissioner of Child Welfare might also be needed. All that the amendment envisages is to add that the same consequences would apply if the permission of the Commissioner of Child Welfare, whose permission can legally be required for the marriage to be concluded, were not obtained. I think it is a self-explanatory amendment.

We support the amendment.

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

The intention of this amendment is to ensure that when minors conclude an antenuptial contract which does not include the accrual system, the same consequences would apply as would have applied had the marriage otherwise been in community of property, with the two not having concluded a marriage contract and the marriage being kept intact. The intention is to grant recognition to the accrual system as an extended matrimonial property system of community of property, and by expressly stating it in these terms, we are giving effect to this.

Amendments 1 and 2 agreed to.

Clause, as amended, agreed to.

Clause 25:

Mr Chairman, I would like subsection (1) to be omitted from this clause. In other words, I do not wish Black marriages to be excluded from the purview of this Bill.

That is against the principle of the Bill.

That is for the Chair to decide.

Order! If the hon member wishes to move the amendment as printed in her name on the Order Paper, I regret I will not be able to accept it.

I will therefore not move the amendment. I merely want to point out that the object is not to interfere with the conflicting property or financial claims between customary law wives and civil law wives. That is a very complicated issue. We know it has been referred to the Law Commission, and we hope very much that they will consult experts and offer a solution very quickly to this complicated matter. In many respects this is an unresolved matter. Where a customary law marriage is being entered into and the man subsequently takes a civil law wife, the customary law marriage falls away, but the claims of a customary wife in the case of an intestate estate thereafter, do not fall away. The question is complicated by the additional factor of the Natal Code, which is apparently in the process of being resolved by the kwaZulu Legislative Assembly. This question revolves around the woman’s position as a perpetual minor, and this is in the melting pot. I gather that the kwaZulu Legislative Assembly has decided to make some changes in this regard, but there is still the whole question of the marital power applying to marriages.

What I want is for Black women, many of whom are engaged in business and are professional women such as teachers and nurses, to be able, since they are married out of community of property, to get rid of the marital power so that they can administer their own earnings and property. At the moment they are under the same disadvantages of White, Coloured and Asian women married out of community of property with marital power. I think it is quite wrong that these women should not have the ability to marry out of community of property without marital power. Couples of existing marriages should be able to change their marital property regime. Under this clause, as I read it, Blacks are excluded entirely from making changes because all Blacks are married out of community of property, with the marital power, under the Black Administration Act, unless they have entered into an ANC which excludes marital power and which gives them then full rights in terms of other laws. I should like the hon the Minister to consider granting to Black women contractual capacity since they are married out of community of property. Many of them are the wage earners of the family. In many families the woman is in fact the only wage earner, and it is quite wrong that a woman should work but find that the man, because he has the marital power, can administer her property and take advantage of the marital power. I want to ask the hon the Minister to consider this.

Incidentally, even the minority report of the commission, which was against the removal of the marital power, said they had no objection to the removal of the marital power in marriages out of community of property where marital power is not being excluded. The hon the Minister might remember that paragraph. So that objection falls away as well. Does the hon the Minister remember that?

I do remember it. [Interjections.]

Mr Chairman, on a point of order: Is the hon member for Roodeplaat allowed to sit here reading a newspaper while a debate is in progress?

What is the hon member for Roodeplaat reading? [Interjections.]

Mr Chairman, I should like to address you on this. I think this Bill which is under discussion at the moment requires research and study. In this reference work which I am consulting at the moment, I find a considerable amount of information. Sir, I should like to make it easier for you to decide whether or not this research in which I am engaged is relevant. With regard to a housewife, it is said that depression is the root of all evil. In this document, the reader is asked to read Chapter 31 of the Book of Proverbs. Nothing is said there about the marital power.

What document is the hon member reading? [Interjections.] I think the hon member should bring me that document when business has been suspended, so that I may read it too.

Sir, may I make a final remark?

The hon member may.

The hon member who raised the point of order is a bachelor. I believe that the Chair should exercise the necessary discretion when such an hon member raises a point of order during the discussion of legislation of this nature. [Interjections.]

For that reason the point of order, in legal terminology, is dismissed with costs.

I want to just draw the hon the Minister’s attention to two paragraphs in the Law Commission report. The one is on page 35 where it is stated that—

and many Black women are public traders.

The other reference is on page 97, where the minority report states:

All marriages of Blacks, unless a declaration has been made before a magistrate, are entered into out of community of property with the marital power retained.

Chairman directed to report progress and ask leave to sit again.

House Resumed:

Progress reported and leave granted to sit again.