I move— That the Bill be now read a Third Time.

During the second-reading debate, and also during the Committee Stage, the hon. the Minister made several references to the question of the testing of drugs, a very important facet of the work of the Drugs Control Council, and I want to put a suggestion to the hon. the Minister that in the carrying out of this work he should recommend that the Council pays attention to the greatest good for the greatest number of citizens of South Africa. The suggestion I have to make is that one of the first duties of this Council, when they consider the whole aspect of drug-testing for purity and efficacy, should be to consider the supply of drugs to State and provincial hospitals. We are aware of the system of tender which applies to the large State and provincial undertakings, where the Tender Board considers the various prices placed before it, and after due consideration it is not unusual for the most economical tender price to be accepted. I believe that in so far as the pharmaceutical manufacturing firms of repute are concerned, there is very little cause for anxiety. But in the case of a tender where possibly a pharmaceutical firm perhaps of not high repute, perhaps one which does not operate strictly in terms of the standards of purity required, might be fortunate enough to be awarded a tender, I sometimes wonder whether that particular product which is supplied on tender would stand up to close scrutiny and examination by chemical means. I suggest that under these circumstances it is desirable for this Council, in the first instance, to concentrate on making sure that those drugs, which are supplied in very large quantities to these organizations, are in fact up to the standards required. I am aware that various provincial organizations have their own methods for satisfying themselves that the standards are being maintained, but I believe that if this were co-ordinated by the Drugs Control Council a great deal of duplication of labour and unnecessary expense would be avoided, and I appeal to the Minister on those grounds to give consideration to this aspect.

Then there is one other aspect to which I wish to refer and that is in regard to a speech I made in this House a few years ago in which I referred to the extravagant claims which were being made in connection with certain patent medicines. At the time the Minister was aware that the Drugs Control Council would be called into being, and I believe that ample powers exist within the Act for control to be exercised over these people. But yesterday the Minister told us—and we on this side of the House agree—that the implementation of the Act and the inclusion of the various categories of drugs would take many years. It would take five to ten years before all the drugs with which we have to deal in South Africa are controlled under this particular Act. I believe that in the meantime the Drugs Control Council should give its attention to the manufacturers who produce patent medicines, advertise them in the popular Press and make extremely extravagant claims as to what these patent medicines can in fact do. Sir, I am referring primarily to preparations for reducing and preparations which are alleged to put on weight at a remarkable speed and preparations which are claimed to have a beneficial and desirable effect on the female anatomy in certain places.

Do they not work?

I do not know.

I hope the hon. member will not go too far along those lines.

Sir, I have no intention to take it any further. I believe that the Council should give an indication that they would be prepared to accept bona fide reports on any of these drugs which are on the market and that they should be prepared to use the powers which they have to investigate and restrict the marketing of such drugs, because I do not believe that it is in the public interest. It is mainly in the interests of the manufacturer and the advertising agents who promote these drugs. I know that the Minister has a file on these advertisements; I too have a file. I have discussed this matter with the Minister in the past and I think he agrees with me that there are preparations on the market which serve no useful purpose and which should not be allowed to be sold. I wish to give the House an example of the type of thing which a gullible public is asked to accept. This particular advertisement appeared in a Sunday paper in 1967 and it is headed “Marriage Happiness”, a very desirable state of affairs, as you will agree, Sir. It then goes on to say—

Sir, these tablets contain 50 mg. of caffeine, about as much as you would get in a cup of coffee. The dose of caffeine as laid down in the British pharmacopoeia is 250 to 500 mg. Each of these tablets which it is alleged will create the “ideal state of marriage happiness” contains 50 milligrams of caffeine. In my opinion we should not allow this sort of thing to continue, and I suggest in all seriousness to the Minister that this Drug Control Council should give immediate attention to this aspect of the matter. While it is not in a position perhaps to declare that all these groups should fall within the ambit of its activities in so far as registration is concerned, nevertheless where a complaint is lodged and a case can be made out then the Council should step in in the interests of the public of South Africa.

Mr. Speaker, the hon. member who has just sat down, may rest assured that we on this side of the House are at one with him as regards the suggestions he made here. I may just point out to him that in actual fact the Drugs Control Council only started functioning during the past year after all the preliminary steps that had to be taken. It has in fact already laid down standards for the majority of drugs. Besides, as I mentioned during the second-reading debate, the Drugs Control Council has already declared the British Pharmacopoeia and the British Pharmaceutical Code to be the works indicating the standards required in the Republic. Consequently, if any drug complies with the required standards, it is acceptable, even though there may be another product having higher standards. It may happen that the British Pharmacopoeia may also consider the standard of the other product to be unnecessarily high. However, the prescribed standards must be complied with, and when this is not the case the drug will not be accepted, except if the standard complied with by the product has been announced by the Drugs Control Council itself. If tenders of different standard are submitted to the Government, they will be quite acceptable, as long as the standard is equal to or higher than those announced. I think the hon. member will agree that this is fair.

The hon. member pointed out a second problem, and that is the extravagant claims made for many of these patent drugs. Extravagant claims are made regarding their usefulness and efficacy. In this regard we are faced with one of the most difficult problems. The problem does not concern the actual medicine or its standard. The hon. member referred to a case where a medicine only contained caffeine and, in fact, in such a quantity that it could not be harmful. The difficulty in this case is not the fact that caffeine is being sold, in other words, it is not the standard that is in question, and it is not a harmful drug. The objection here is that the remedy is praised sky-high in the advertisement and is virtually being sold under false pretences. This is the problem, namely what standard of advertising should be allowed. As the hon. member knows, the Drugs Control Council also has certain powers in regard to advertising. The hon. member will appreciate, however, that this problem is the lesser evil as compared to that of the danger of drugs. I think the Drugs Control Council will pay attention to any complaint submitted to it. I think it will have to pay attention in the first place to what is of the greatest importance, namely the danger of drugs. Subsequently it will be able to pay attention to advertising as well. I think this answers the points raised by the hon. member.

Motion put and agreed to.

Bill read a Third Time.

Mr. Chairman, I move the following amendment as printed on page 87 of the Minutes:

This amendment is only necessary because the designation of the Minister of Agricultural Credit and Land Tenure has been changed to “Minister of Agriculture”.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

Clause 2 put and negatived.

New Clause 2:

Mr. Chairman, I move—

2. Section 2 of the principal Act is hereby amended—

1. (a) by the substitution for subsection (2) of the following subsection:
2. “(2) The State President shall not dispose of any particular State land in terms of subsection (1) if the disposal thereof is governed by a provincial ordinance”; and
3. (b) by the insertion after subsection (2) of the following subsections:
4. “(2A) When transfer of any land alienated in terms of subsection (1) is registered. the Minister may authorize the registrar of deeds in writing to endorse on the title deeds of the said land and any other immovable property of the transferee a restriction to the effect that such land and such other immovable property shall not without the consent of the Minister be alienated separately.(2B) The said registrar shall give effect to the said authorization in such manner as may to him appear to be most practicable and convenient, and thereupon such restriction shall be valid and effective against all persons except against any person (including the State) in whose favour a mortgage bond or other charge was registered against any immovable property prior to the endorsement of the said restriction on the title deeds of such property.
5. (2C) The Minister may authorize the said registrar in writing to cancel any restriction referred to in subsection (2), and the registrar shall give effect to any such authorization in such manner as may to him appear to be most practicable and convenient.
6. (2D) The Minister may, notwithstanding anything to the contrary in any law contained, grant the consent referred to in subsection (2) subject to such conditions as he may deem fit.”

This amendment is only necessary because after the Act had been drafted we received a letter from the Cape Provincial Administration in which anxiety was expressed that, in view of the fact that the Provincial Administration cannot pass any laws or ordinances conflicting with any Acts of this House the provision made in ordinances for the disposal of land obtained by the Province will, as a result of this amendment, no longer have the force of law. That is not our intention at all, and accordingly the new clause provides that the provincial ordinances will not be affected. This does not concern land that was transferred to the provinces by the State, but exclusively land bought by the provinces themselves or which they obtained by bequest.

New clause put and agreed to.

Title of the Bill:

Mr. Chairman, as a result of the change in the designation of the Minister, the title of the Bill also has to be amended. I move as an amendment—

Agreed to.

Title of the Bill, as amended, put and agreed to.

Mr. Chairman, I move the amendment as printed on the Order Paper—

Mr. Chairman, during the second-reading debate, when I offered a suggestion to the hon. the Minister that there had perhaps been a mistake when the Afrikaans draft was translated into English, the Minister presented us with a long explanation as to why the word “European” was used instead of “white person”. Am I to assume that the Minister was misinformed when he gave us that explanation and that the suggestion which we gave him was a correct one and that “white person” is the correct expression to use? I raise this point because this is a non-contentious matter. We drew the Minister’s attention to what we felt was a mistake in the drafting. We have since been able to investigate this matter and found that the Minister’s explanation was really without any foundation when he endeavoured to justify the use of the word “European”.

Mr. Chairman, I just want to point out that the original explanation given to me by the law advisers was that people who are not living in the Republic of South Africa are also affected by this Bill; as they are not classified in terms of the Population Register, we cannot refer to them as “white persons” and therefore we have to use the word European, which is generally accepted. I think, however, that I have persuaded them that those Europeans can also go through as white persons. As a result of this they accepted my suggestion that it could be used in this way.

I would like to ask the hon. Minister, following his amendment, whether he now intends to introduce a definition of “white person” in terms of this clause, as in other legislation there is a definition as to what a white person is. Now this is amended merely to a “white person”, which means that this clause does not have a definition of “white person”. I should just like to ask whether the hon. the Minister is satisfied that that is in order and that it is not necessary for “white person” now to be defined in terms of this clause.

Mr. Chairman, I should like to take this opportunity to ask the hon. the Minister to change his mind altogether about this amendment and to delete entirely the words “white person” in this clause. I do not care whether they are called Europeans or white persons; we all know what is meant. What is meant is the exclusion of Africans, of Bantu veterans from getting any pension. I think this is a situation which has long needed adjusting. I know that the hon. the Minister has said that a reason why it has been continued, is that this was introduced by the Smuts Government after the Second World War. That is not the attitude taken by this Government on hundreds of other matters introduced by the Smuts Government after World War II. It had no compunction whatever about changing anything which it did not approve of. So I see no reason why the hon. the Minister uses this as an excuse for excluding Bantu persons from War Veteran Pensions.

Earlier this Session I put a question on the Question Paper, asking the hon. the Minister how many Bantu ex-servicemen were in receipt of ex gratia payments in 1967 and what was the total amount paid to them. The amount is disgracefully low. There are only 350 of these Bantu war veterans, and there must be hundreds and hundreds more who served in World War II and World War I for that matter, who should be just as entitled to a pension as the other patriots in South Africa who volunteered for service in our armed forces. The amount received in total by these Bantu war veterans, who are allowed to get, not a pension, but ex gratia payments, is R14,375, which amounts, if one does a little simple division, to something like R41 per annum per person, which is an ex gratia payment to somebody who volunteered for service and, although not carrying arms, very often was in the front line and very often exposed to danger. Some, indeed, gave their lives. Some of their colleagues gave their lives in assisting to get wounded soldiers off the field. I think if we are going to have any amendment to this Act at all, it should be a completely new attitude on the question of Bantu war veterans. I know that the B.E.S.L. and other organizations have long pressed for this change and for the hon. the Minister to come up with this fatuous excuse year after year when this issue is raised that the Smuts Government introduced the idea of ex gracia payments, does not mean anything as far as I am concerned. As I have said before, the Government does not hesitate to change any existing laws, regulations or customs if it happens to suit them. I should like the hon. the Minister to give this matter some attention.

Mr. Chairman. I do not know whether the hon. member for Houghton was here when the second reading of this Bill was taken.

Yes, I was.

If she had been —she says she was—she might not have heard the hon. member for Umbilo making the same plea at the second reading. The difficulty which we have at this stage is that we wanted to move an amendment to include the Bantu veterans. We wanted to move an instruction, so that the Bantu veterans could be included, or that this Committee could consider the matter. But this was not in order because it would increase the financial burden under this Bill, for which the State President’s recommendation would be required. So we were not able to discuss it. That is unfortunate.

I rise to support the plea made by the hon. member for Umbilo, a plea for a definition of a white person to be included in this Bill. At the moment there are no less than three definitions of a “white person”, i.e. in laws already passed. Firstly, the definition in terms of the Group Areas Act; secondly, in terms of the Prohibition of Mixed Marriages Act; and thirdly, in terms of the Population Registration Act. Now the question is, what does a “white person” mean in so far as this legislation is concerned? Does one have to fall back on the common law for such a definition?

Yes.

The Minister says “Yes”. I will therefore sit down now so that the hon. the Minister can tell us what the definition of a “white person” is under common law.

Hon. members will have noticed that in the original Afrikaans there is also no definition of “white person”, but that there are definitions for the concepts of “Indian”, “Chinese”, etc. All we are doing here is to substitute the words “white person” for the word “European” in the English version. Therefore we now have precisely the same position in both cases. The position is that it is not necessary to give a definition of “white person” in an Act unless penalty provisions are contained in such an Act. In the case of this legislation, of course, there are no penalty provisions involved. Consequently the position is that any person who qualifies under the existing definition of “white person” can be considered for these pensions. If we incorporate one of those definitions in this Bill the danger exists that we may be excluding those persons who meet the definitions in other Acts. That is Why I said that the common law applies here—in other words, the law as laid down by existing legislation.

The minister’s reply is an interesting one. He says that anyone qualifying under the existing definitions of “white person” can be considered for the benefits extended by this Bill. But what will be the position if a person is classified as a “white person” under the Prohibition of Mixed Marriages Act and as a Coloured in terms of the Population Registration Act? Does such a person qualify for a pension? The Minister seems to try to convey that that will be so.

He will get the best possible benefits under this Bill.

The Minister says such a person will get the best benefits. If that is the assurance of the hon. the Minister about the way in which such cases will be considered I agree that we should not define a “white person”.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

Clause 3:

There are three points in connection with this clause which, I think, needs clarification from the part of the hon. the Minister. Firstly, subsection (2) states—

“Persons entitled to veterans’ pensions.” This is therefore a very important clause. It states that residence in the territories set out in sub-section (2) shall be deemed to be periods of residence in the Republic. However, subsection (1) (b) states that in order for a person to qualify for a war veterans’ pension he must at the time of making the application be resident in the Republic. I fail to see the necessity for including the provisions of (1) (b) in subsection (2). As I read the clause, the applicant must at the time of making his application be resident in the Republic. My question to the hon. the Minister therefore is, will a person living in one of these territories be entitled to apply for this pension? I can see its applicability to subsection (1) (c) (ii), which deals with the period of residence in the Republic, which is an alternative definition of a person qualifying in terms of residential qualification.

The second point that the Minister should clear up is why the provisions of subsection (2) are restricted to white persons only and excludes members of the other racial groups. Why should these not be dealt with on the same basis as the Whites? My third query is in regard to subsection (3). I realize that the Minister is empowered by other legislation to waive residential qualifications in the case of white persons coming from certain African territories—such as the Congo, Kenya and Tanzania. Subsection (3) exempts these persons from the provisions of subsection (1) (b), a subsection which states quite clearly that at the time of making his application the applicant must be resident in the Republic. There seems to me to be a certain amount of confusion in wording here. Another point I think the Minister should clarify is in connection with subsection (6). This is a permissive subsection because it says that the Secretary “may direct that the provisions of subsection (5) shall not apply in respect of any continuous period of absence of any particular pensioner between any date prior to and any date after the commencement of this Act”. Subsection (5) deals with the cancellation or suspension of a pension after a period of absence exceeding six months and lays down certain provisos in terms of which the Secretary may authorize the continuation of that pension. The wording of subsection (6) is not clear. It is not clear what the intention there is. I shall be grateful therefore to the hon. the Minister if he could give us the reasons for subsection (6) in the light of the powers that are taken to suspend or cancel a pension after a continuous absence of six months from the Republic.

I myself have misgivings about subsection (2) of this clause. This subsection has been taken over from the existing Act. It actually means that a person who is resident in Lesotho, Botswana, Swaziland or South West Africa and who qualifies for a war veteran’s pension is deemed to be resident in the Republic of South Africa. This is actually what is being provided in this subsection, and this is what was provided in terms of the old Act. I have now begun to doubt whether this is still correct now that these territories have become self-governing, and whether we should continue with this arrangement. Unfortunately the matter has not come to my attention so specifically before now, and I shall be glad if hon. members will permit me to give further consideration to it. If it is necessary for a further amendment to be made in this regard in view of the new status attained by these adjoining territories, I shall rather introduce it in the Other Place after having had an opportunity of consulting the Minister of Foreign Affairs on the implications it may possibly have. But the present position is that a person who is resident in those territories will be deemed to have resided in the Republic, in terms of these provisions. Naturally, the same applies to subsection (3), and to the question the hon. member asked in that respect, although, here again, I am beginning to doubt whether the hon. member may not be right. In the case of persons coming here from other territories in Africa the concession has been made that we are already giving them a pension, even if they were resident in the Republic for less than five years out of the last ten years—probably after one year in cases where they have obtained citizenship. We are now giving them a pension, but then they have to be resident in the Republic when they apply. I think that goes without saying, but I shall give further attention to this matter as well and see whether this should not be changed.

As regards subsection (6), this is a provision which is intended to give the Secretary a certain amount of discretion regarding the period for which a person may be absent from South Africa and may still continue to draw the pension. Normally the pension has to be withdrawn if he is absent from the Republic for a continuous period exceeding six months. However, there may be special reasons for his being absent for a longer period. We should not like to do away with this restrictive provision, but in subsection (6) we are granting the Secretary a discretion to waive this six months’ provision in certain cases. I now move the following amendment, as printed—

During the debate on second reading I raised the matter of clause 3. read together with clause 15, which provided that the Minister may lay down by regulation the requirements to be complied with for a war veteran to qualify for a pension and the circumstances in which he would cease to qualify. The principle I raised was one of the nature of the normal argument that one would use in regard to delegated legislation. The matter was whether we should here determine on what basis a war veteran should qualify, or whether the Minister should be entitled to do so. Objection was taken at the time to the power of the Minister in fact to lay down by regulation further qualifications which a war veteran may require in order to qualify for a pension. The Minister replied saying that his intention was not to make it more onerous but to make the Act more easily applicable to more people, and he said I ought to know that that has always been the policy of his Department. I accept that that is the policy of his Department and I accept that they always act in as generous a way as they possibly can, but I do not want the hon. the Minister to find that his good intentions are stultified by the provisions of this Bill. Clause 3 says “Subject to the provisions of this Act, every war veteran shall be entitled to receive a veteran’s pension if the Secretary is satisfied …”, and then it lists the requirements. It says “subject to the provisions of this Act”. Now, the only provision of this Act to which that is to be subject, i.e. a statement of his qualifications, is in clause 15, in terms of which the Minister may make regulations as to the requirements or conditions “in addition to any specified in section 3”. In other words, it is not in substitution for but in addition to those mentioned in section 3. In other words, there are those requirements and the Minister can make further requirements. As this is worded, he can only make more onerous requirements, as I indicated during the second reading, and not less onerous requirements. The Minister has indicated that it is not his intention to make more onerous requirements. If that is so, I hope the hon. the Minister will give his attention to this matter. I appreciate that he cannot resolve the matter across the floor of the House, but I hope that before this Bill goes to the Other Place the Minister will give his attention to this factor which will cut his hands off in as far as his ability to grant concessions under this clause is concerned. What I would suggest is that he delete the words “subject to the provisions of this Act” in clause 3, and then in clause 15 give himself the power to vary the requirements or conditions. In that way there would be an unqualified right on the part of every war veteran who complies with the requirements of clause 3 to have a pension, and the hon. the Minister would be able in special circumstances to vary the law in hard cases in order to give pensions where otherwise they might not be given.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

Clause 15:

This clause is a most important one, as the Minister here takes the power to make regulations which will in effect be the means test under which a person can qualify for a war veteran’s pension. In terms of paragraph (a) the payment of veterans’ pensions or allowances, including the maximum amount to be paid, the determination of the amount to be paid in any particular case, the method of payment, payment to persons other than the pensioner himself and the suspension of payment, are important powers the Minister will exercise by regulation. We know that in subsection (2) the Minister has embodied in the Bill before us a provision that any maximum amount prescribed in terms of subsection (1) (a) shall not be reduced without the approval by resolution of the Senate and of the House of Assembly. We view that subsection as perhaps the most important subsection in this clause, because here we will find that in future the Minister by regulation will be able to vary the means plus pension limitation. The means plus pension limitation is the very essence of the means test. This provision here merely states that the Minister cannot reduce the maximum amount paid in terms of this section. I believe that perhaps this does not go far enough because subsection (1) (b) provides that the Minister may make regulations as to—

This is another extremely important power that the Minister is taking to exercise by regulation which will further limit a person’s possibility of qualifying for a person, due to the application of the means test. Therefore, I was wondering whether the hon. the Minister would consider the question of making provision in subsection (2) that such requirements or conditions to be complied with by a war veteran, will not be altered to the disadvantage of a pensioner without a resolution passed by both the Senate and the House of Assembly.

And paragraph (e).

Yes, paragraph (e), which is on the same basis, deals with assets and income to be taken into account. My reason for asking for an extension of subsection (2) is this: When one looks at the report of the working group on legislation for the protection of the aged—and one must remember that this Bill is more or less on the same lines as the Aged Persons Act, a draft of which was included at the time of the report of this working group—one finds that the working group recommended that similar amending legislation should also be passed in terms of the various other Acts covering various social pensions, including the war veterans’ pension. In regard to the question of altering the means test to any extent, it was stated in the report that ample opportunity would be afforded to this House and the Other Place to consider any such alterations, but it was not merely restricted to the question of the maximum amounts that can be paid in terms of the means test. Obviously there is far more involved in the means test than merely the question of the means plus pension limitation. There are other conditions which also apply and it is those other conditions which cause a certain amount of concern, and that is why I am hoping that the hon. the Minister will perhaps be prepared to reconsider the wording of subsection (2). May I read out to the Committee what the recommendation of the working group was? At page 13 of their report they said—

I feel that that recommendation goes further than the provision which is made in terms of this clause in which it is specifically stated that only the maximum amount prescribed in terms of subsection (1) (a) shall be subject to a resolution passed by this House and the Senate. I hope the hon. the Minister will give consideration to this important point which involves the question of the means test, and that we will have an opportunity to discuss the matter if it should become necessary at any time to alter the means test, apart from merely the amount that is provided for in terms of subsection (1) (a) of this clause.

Sir, I want to make a special plea under this clause to the hon. the Minister, and I want to make it especially in favour of a particular group of war veterans. I want the hon. the Minister to take into account the fact that this is the year 1968 and that this is the fiftieth anniversary of World War I. I believe that the time has come when the group of veterans from that particular war should receive some extra special consideration in the drafting of regulations under this clause. Sir, in the administration of these regulations one comes across many hard-luck cases where people almost qualify under the means test, as provided for in clause 15 (1) (e). If the Minister is going to make regulations under this particular clause, I want him to consult adequately with those people who attend to the wants of those people, because they know when the person who needs it most at that particular time of life is debarred from receiving what I honestly and sincerely believe every member of this House would want him to have under this particular Act. I believe that this is an opportunity for the hon. the Minister to make a gesture towards this group of people who are getting fewer and fewer. I believe that we can afford to be particularly generous to them in framing regulations under paragraph (e) of subsection (1).

I doubt whether this is the right occasion to discuss the position of a particular group of war veterans. I have noted what the hon. member for Umlazi said. I think the right occasion for dealing with that matter in greater detail will be when my Vote comes up for discussion. I would prefer not to discuss one particular group of pensioners under this Bill now, as other groups will then be discussed as well and we do not know where it may end.

As regards the hon. member for Umbilo, I sympathize with what he suggested. It has never been and it is not now the intention that the Minister should be able to utilize his administrative machinery to make regulations to the detriment of persons entitled to benefits under an Act. I think it is a perfectly good suggestion that we should reconsider the legislation to see whether paragraphs (a), (b) and (e) of clause 15 (1) cannot be made subject to the provision that no amendment may be made to the detriment of the war veterans without a prior resolution being passed by both Houses of Parliament. I shall reconsider this in order to find a suitable wording and then I shall move an amendment at a suitable opportunity.

Clause put and agreed to.

I move the amendment as printed in my name—

This amendment is to accede to the request made by the Opposition, which I consider to be a reasonable request, in connection with the position that in the case of blind persons it may very easily happen that a blind person is obliged to leave the country for more than six months in order to receive medical treatment, for example. For that reason I am moving this amendment which leaves it to the discretion of the Secretary to continue the payment of pensions in such cases.

I would like to say that we on this side of the House welcome the amendment moved by the hon. the Minister. It meets the difficulty we raised during the second-reading debate and we thank the Minister for moving this amendment.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

House Resumed:

Bill reported with an amendment.

Mr. Chairman, to a certain extent this Bill alters the administration of this Fund. This Fund was established under a very old Act, namely an Act of the Cape of Good Hope of 1895, and we know that certain adjustments have had to be made regarding the administration of the Act based on the actuarial valuations from time to time. This clause deals with actuarial valuations. Reading the Bill one can see that the administration of this Fund is based to a great extent on these valuations. The membership of this Fund is decreasing. The administration of the Fund is such that a bonus is calculated based on the actuarial report. From the reply to a question which I asked in 1964 it transpired that there were 880 members of the Fund, whilst the reply to a question asked during the present Session showed that the membership had decreased to 734. Previously the survivors, the widows, benefited by receiving a bonus where there have been substantial surpluses. The last bonus, of 110 per cent, was with effect from 1st January, 1961. However, since then the revenue of the Fund is obviously decreasing, and at the same time the expenditure is also decreasing. Taking the actuarial valuation as a basis, it is possible to assess the possible future of the Fund. It would appear that because of the way in which the Fund is being administered it should have standing to its credit a substantial amount when the time arrives that there are no longer any beneficiaries. It would appear that in terms of this clause the Fund, which has annual accounts, is only subject to actuarial valuation every five years after the 31st March, 1970. I want to ask the hon. the Minister whether he is satisfied that the actuarial valuation at five-yearly intervals will be to the advantage of the Fund. As I said, the administration of the Fund is unique, and although it may be argued that there are similar provisions made for certain other funds, nevertheless the Fund is administered in a unique fashion. In the result it might be necessary to have more frequent actuarial valuations. I realize that the costs of such valuations will have to be borne by the Consolidated Revenue Account and not by the Fund itself. But despite this, I am in favour of more regular valuations because I believe the Minister will then be able to follow more accurately the decline of this Fund, because eventually the Fund will have to be wound up when there are no more beneficiaries in existence. I believe it would be in the interests of the good administration of the Fund if the hon. the Minister were to decide on an actuarial valuation every three years rather than every five years. When the Fund had surpluses the beneficiaries received increased bonuses. However, according to the figures furnished to hon. members, the Fund has had a deficiency each financial year, and the deficiencies have been met by payments from the Consolidated Revenue Fund.

The question of the regular actuarial valuations I believe is most important. Various insurance funds also have actuarial valuations at three-yearly intervals. I would be pleased if the Minister would consider three-yearly actuarial valuations rather than five-yearly. Perhaps the Minister could also indicate to this committee what he visualizes the future of the Fund to be in view of the decreasing number of persons receiving benefits and a decreasing amount being paid out as benefits, whilst at the same time the Fund’s revenue is also decreasing. If one studies the figures contained in the reports one must remember that the widows concerned express concern from time to time regarding the future of the Fund because it is a very old Fund. We know they are entitled to other allowances in terms of other provisions. However, I feel that as we are now discussing this clause, the time is opportune for the Minister to give us his reasons why he only wants five-yearly actuarial valuations. Perhaps he can also give us an indication of how he sees the future of the Fund.

Mr. Chairman, the problem that is overlooked by the hon. member for Umbilo is the fact that actuarial valuations of a fund are relatively expensive. Especially where one is dealing with a fund such as this, which is not a very large one, each actuarial valuation places a particularly heavy burden upon the fund, because the fund itself pays for the actuarial valuation.

But clause 9 (1) provides that the cost of “actuarial investigation … shall be paid out of the Consolidated Revenue Fund”.

This only applies to costs in connection with the administration of the Fund. It does not include the valuation of the Fund. In the case of all pension funds it is customary for the costs of actuarial valuation to be borne by the funds themselves. Consequently it will be a considerable increase of the burden on the Fund. At the moment there is no real cause to be concerned about the Fund. For the moment we think that we can carry on as at present until the next valuation. At that stage, unless there is a sudden and rapid decrease in the number of beneficiaries falling under the scheme, there cannot yet be a marked change in the position. If there should be a sudden and rapid decrease in the membership of the Fund as a result of a large number of the members dying within the space of two or three years, and very few members remain, then we shall naturally have to reconsider the matter immediately. Then we can see what can be done. But with the present rate at which the number of beneficiaries and the income of the Fund are decreasing, and the gradual decrease in the assets of the Fund, it seems to us that we should leave the matter as it is. The possibility exists at present that the Fund is heading for a deficit. If such a deficit should occur, it will naturally have to be supplemented by the State.

Clause put and agreed to.

I move—

Mr. Speaker, this Bill is not only a short one, but also contains no new, far-reaching principles. What is being proposed here is merely an insertion to facilitate the application of the Slums Act for local authorities, from the financial point of view, by enabling them to rid themselves more quickly of the financial burden resting upon their shoulders as a result of the publication of slum notices.

The amendments concerned are in fact being introduced at the request of the United Municipal Executive of South Africa. I believe that they deserve general support. As the Act reads at present, and has indeed stood for years, a local authority incurs certain costs in respect of the publication of slum notices when slums are declared. The local authority, however, can recover these costs only when it pleases the owner at some stage to request the withdrawal of the slum declaration.

Meanwhile these costs are borne by the local authority—in actual fact the ratepayers of that local authority. So, for example, there is a case of a local authority that incurred costs for notices in respect of quite a number of slum declarations amounting to R4,000 over a period of 18 months, and has recovered only R750 to date. It now has to wait for the outstanding amount until such time as the slum owners one day request that the declarations be withdrawn. There is probably no one in this House who is not keen to see the slum conditions in our country cleared away. The position which I have sketched means that the more vigorously a local authority tackles its slum clearance, the greater the financial burden it takes upon itself, without knowing when such costs will be recovered. The aggregate costs to a local authority of a large number of slums in its area may amount to a very considerable sum, while to the individual slum owner it is actually a negligible amount. What it amounts to is that the total cost in respect of the publication of notices for a single property is about R6. I think that owners of slum properties can afford to pay this negligible amount quickly and not wait until the area is one day removed from the slum list.

Clause 2 is merely a consequential amendment that has to be made.

Mr. Speaker, we support this Bill but there are one or two remarks which I think must be made. You will remember, Sir, that originally the local authority was charged anyway with publishing a notice of this nature stating that a slum had been declared. The local authority had to publish it in certain publications, such as the Provincial Gazette, the Government Gazette and a few newspapers. A little later this hon. Minister thought that certain local authorities were not co-operating well enough with him. He then forced the issue through slums clearance courts and also made the local authority responsible for paying for the notices. The slums clearance court then had to publish the notice and the Minister or the court could recover the money from the local authority. He was very quick to make sure that the money should be recovered from the local authority, which he has done. Only a small amount is involved, but the Minister nevertheless made sure that he recovered it. Now he is going to place this extra burden on the owner of the slum, who had not asked for the area to be declared a slum. But now it has been passed on and it has gone the full cycle because the hon. the Minister wanted it. He has said himself, that the cost of such a notice can amount to R6. Recovering an amount of R6 in the case of multiple ownership such as one finds in the Indian communities of Durban, is going to take one or more clerks far more than R6 worth of time to sort the matter out, let alone recover the money. How they are ever going to recover the R6 I do not know. Now they are going to be able to take action to recover this money. Where is all this going to end? To me it is almost a pity that a Bill of this nature should be brought before this House, not only to waste the time of this House, but to set machinery in motion which is typical of the petty thinking that is attached to the administration of the laws made by this Parliament. This is not the first Bill of this kind. This principle should have been incorporated in previous legislation. This should have been thought of before, at the time when the original amendment was made. But this is characteristic of the way in which we are doing things in bits and pieces. It wastes the time of this House as well as the time and the effort of the country.

I just want to make it very clear that the original Slums Act has been on the Statute Book for many years, that is, since 1934. Since 1934 the position has been that the owner of the slum eventually pays the cost in that connection. Since that time not much attention has ever been given to slum clearance in South Africa. It is only because it has now become a problem that we are trying to tackle it with all our might. It is very easy for local authorities to declare one, two or three slums in their areas and then to bear the cost themselves. But we are insisting that large slum areas should now be cleared. If that is what that hon. member calls petty action, then he may call it that as far as I am concerned, but I shall continue with it. I am going to try, and I am going to do my best, to make the cities of South Africa better and cleaner.

Motion put and agreed to.

Bill read a Second Time.

Mr. Speaker. I move—

Hon. members have probably noticed that the measure we are considering here to-day, corresponds to a provision contained in a Bill which stood over from the previous session. In this regard I am referring to the Prohibition of Mixed Marriages Amendment Bill, 1967. As hon. members will notice, we are not proceeding with those provisions of the latter Bill which are more specifically concerned with race definitions. I think that we should give them further thought before we proceed with them.

Nor do I want to repeat here to-day what I said during the Second Reading of that Bill, and I accept, as we all did at that time, that there is no difference of opinion among us as to the necessity or desirability of prohibiting mixed marriages. However, on the previous occasion the hon. member for Durban (North) touched upon a few aspects at which I want to pause briefly to-day.

If I understood the hon. member correctly at that time, he had misgivings about the desirability of amending the Act for the sake of one or two isolated cases only. I do not know what statistics the hon. member has at his disposal in this regard, but I am prepared to accept that in the past not many cases were found where male South African citizens who did not have domicile in the Republic, entered into mixed marriages abroad. However. I am not so much concerned with the numbers as with the principle and the consequences such mixed marriages may involve.

As I explained on the previous occasion, it is possible for some male South African citizens to enter legally into mixed marriages abroad, whereas others cannot do so. Nor does it necessarily follow that such marriages do not affect us simply because they were entered into abroad. To illustrate this point I may just mention here that, when a male South African citizen enters into a marriage abroad with a female South African citizen belonging to a race other than the race he belongs to, they may return to the Republic if they are South African citizens by birth or descent. In that case the fact that the man is not domiciled in the Republic will not make any difference because, after all, it is his citizenship and not his domicile that grants him the right to return to the Republic. Hon. members will therefore realize that a mixed marriage entered into abroad has in certain cases just as much real importance for us as one which is being entered into in the Republic. The difference is just that, if such a marriage were entered into at present by a South African male who is not domiciled here, we would, upon their return to the Republic, simply have to allow him and his wife to live together in wedlock in spite of our policy against mixed marriages. After all, hon. members will realize that such a situation will cause us embarrassment and that we cannot have one criterion for some mixed marriages and another for other mixed marriages. The oversight in our law which makes such a thing possible, is now being removed by the proposed amendment, and this is the only aim of this measure.

From the speech the hon. member for Durban (North) had made on the previous occasion, I also deduced that he was of the opinion that the amendment that we proposed should not be linked with citizenship. In this regard I shall quote what he said according to the weekly edition of Hansard, Col. 4717—

Apart from the fact that his statement in this regard cannot be accepted without exception, it seems to me as though the hon. member is possibly confusing the validity of such a marriage with the legal consequences of the marriage we want to prohibit with the amendment which is before the House. I repeat, Mr. Speaker, that the hon. member is confusing the legal consequences with the validity of such a marriage. We are not seeking to control the legal consequences of a marriage by means of the proposed amendment. On the contrary, in this regard we are simply and solely concerned with the validity or rather, shall we say, the nullity of certain mixed marriages. As the hon. member knows, the validity of a marriage in South Africa, as it is in many other countries, is as a rule governed by the lex loci celebrationis, i.e. the place where the contract was concluded, and not by the lex domicilii. Although there are exceptions to the rule, domicile does therefore not determine in this country the validity of a marriage. Section 1 (2) of the Prohibition of Mixed Marriages Act, which we are amending now, is in fact such an exception. All we are doing now, is to extend this exception to South African citizenship.

Mr. Speaker, I am afraid it is not quite as simple as the Minister would like to have this House believe. This amends the 1949 Act, which prohibited marriages between different race groups.

Between Whites and non-Whites.

Well, I mean different colour groups. There was one common theme in the second-reading debate in 1949 from both sides of the House, and that was that the House was opposed to blood mixture. In fact, it was not only the Members of Parliament that felt that way, but the Commission on Mixed Marriages which was appointed before that Bill was introduced, reported that that was the feeling of the whole country. My then Leader, General Smuts, in opposing that Bill, started off by saying that if there is one thing on which all South Africans are agreed it is that racial blood mixture is an evil. I mention this so as to make it quite clear that the country as a whole is against mixed marriages because of the blood mixture.

I emphasized that.

However, there are differences of opinion as to the best way of combating this. The Government thinks the best way is to legislate. In 1949 we made it clear through our Leader, General Smuts, that we did not believe that prohibiting legislation was the solution to the problem. In fact I think we have been proved right, because if one studies the records of the courts I do not think prohibiting legislation has proved the solution for this evil. However, as the law now stands, there is a prohibition and every South African who lives in the country knows that there is a prohibition, or he should know the law. As the Bill was originally drafted, all mixed marriages were void. But after the discussion in the second reading and the opposition put up by the United Party and the other groups, the then Minister, Dr. Dönges, in the Committee Stage introduced a very important amendment to give protection in certain cases. He also, I might say in passing, gave a definition of what a European was and what a Coloured person was. That definition is not similar to the definition of a European in other laws, but let me say that I am glad that the definition as originally applied still remains, because I think it is the fairest definition one can get of what a European is. In moving his amendment, Dr. Dönges made it clear that what he intended to do was to protect couples who entered into marriage in good faith and subsequently found that in fact the marriage was void because they were of different race groups. He also wished to protect the children of such marriages. In his amendment he intended, as he said in the House, to apply the law as it applied to children born of bigamous marriages. However, it was pointed out to him by my present leader that that was not how his amendment read and that in fact it went much further, and that all mixed marriages were valid, provided the marriage officer acted in good faith. When this was pointed out to him, Dr. Dönges admitted that that was not what he intended, but he said he would stick to his amendment as it was although it went much further than he intended.

I remind the House of this because I want to stress that in those discussions the main consideration was the protection of innocent people, the protection of wives who entered into the marriage in good faith and the protection of the children born of such marriages contracted in good faith, and where the marriage officer acted in good faith. However, the amendment we now have before us extends the prohibition to South Africans who are not domiciled in this country, as the Minister has stated. Previously the law applied to all South Africans domiciled in this country and to other people who, although not South Africans, were domiciled in South Africa. The Minister has said that the law of the validity of the marriage will depend on the lex loci celebrationis. It is quite true, as far as the formalities are concerned. If the formalities are applied of the country where the marriage takes place, where the person is domiciled, then the marriage is a valid one. That is what the Minister said and that is true, and I want to give an example of what it means. It means that if consent is required by the guardian in certain instances in the country of which the party is a citizen, but is not required in the country of his domicile where the marriage has taken place, then the marriage is valid without that consent, and that is why you have the Gretna Green marriages. That is why people go there to get married from France and other places, because they avoid the necessity of getting consent. I do not know why the Minister relies on that law for holding that the marriage will always be valid once it has been contracted according to the formalities of the country of domicile. That would hold if there was no express prohibition, I submit, against that form of marriage in the country to which the party moves. What worries us is the question of domicile and the rights of the children. The Minister also says the law of the domicile affects the legitimacy of the children.

It is true, normally, that if a child is born of lawful wedlock and the law of the domicile of origin gives it legitimacy, that child will be regarded as legitimate normally. But I would like to remind the Minister of a case in America. I just want to tell the House what happened there. It was a case in which legitimacy was tested. It was the case of Moore versus Paxton. The question that fell to be decided by the court in Connecticut was whether certain children who had been born in California were to be regarded as legitimate in Connecticut from the moment of their birth. The parents, who were domiciled in California, were bigamously married. The rule of Californian law says that the children of bigamous marriages are legitimate. The law of Connecticut says that such children are illegitimate. It was held that the status of legitimacy thus established by the domicile of origin must be recognized in Connecticut. The court, after demonstrating that the status must be recognized in the absence of some rule of positive law or of public policy in Connecticut to the contrary said, inter alia: “The inquiry whose answer should determine whether recognition should be accorded by the Connecticut court to the status of persons elsewhere acquired, is whether or not there is any important matter of public policy prevailing in Connecticut which will be contravened by such recognition.” In other words, one state will respect the law of another state, provided there is no question of public policy prohibiting such recognition.”

Now, what we are worried about is this: As regards applying this prohibition to South African citizens who are no longer domiciled in South Africa but are domiciled elsewhere. And by domiciled the Minister knows very well that there must be an intention to reside permanently or indefinitely in that country; that is how you acquire domicile; you cannot merely say you are domiciled in a country. The courts will not accept that. The onus is on you to prove that you have in fact changed your domicile. Where a South African has become domiciled elsewhere with the intention of staying there permanently and some woman in that country marries him in good faith, we want the assurance that that woman’s rights will be protected and that the children born from that marriage will also be protected.

Which rights do you refer to?

The right of the wife to be regarded as a married woman and the right of the children to be regarded as legitimate. If we do not take this precaution, we are placing these women abroad who marry in good faith in this position, that their South African husbands can at any time return to South Africa and so avoid all their responsibility towards their wives and families. They can come back here and marry another woman and it will not be bigamy if this Bill is passed, because it simply says the marriage will be void and of no effect in South Africa, and that is a terrible consequence. I do not think this House can ever allow such an event to happen. Also, we want the assurance that the children’s rights of succession, for instance, ab intestato, will be respected and that they will not be regarded as illegitimate children. There may be immovable property involved and the law of the country in which the property is situated will naturally apply. Now the Minister may say that if the child is born legitimately in some other country, we will respect his legitimacy here. [Interjection.] The Minister says yes, and he also says that we will protect the rights of the wife, for instance where we have reciprocal arrangements with other countries in regard to maintenance orders and their enforcement. But I submit that in any application made to the court to enforce a right arising from a marriage which is void, the courts here will say what the American courts said, namely that it is contrary to public policy, and the Minister knows very well that no court will enforce a contract which is contrary to public policy. This would be contrary to public policy, because we have definitely legislated against it. We will have passed a law saying that no matter what the private international law is, and no matter what the arrangements we have with other countries, as far as we are concerned we will have a specific law saying that these marriages will be void and of no effect.

Now I ask the Minister this. If that is not going to be the consequence, why pass this law at all? If the children are to be regarded as legitimate in the country of domicile, and if the wife is to be regarded as truly married, what is the object of passing a law of this nature? The Minister says he is not interested in numbers. I do not believe he is, because numbers do not enter into this at all. The cases will be so few that the numbers will not matter. But I would like to remind the Minister that when introducing his Bill, Dr. Dönges dealt at length with the matter of numbers. One of the reasons he gave for the introduction of the Bill was the increasing numbers. He dealt with it at great length. But that motivation which Dr. Dönges had in 1949 does not apply at all now. The Minister has inferred that in fact he has no particular case to meet at the moment, but if a South African citizen marries another South African citizen elsewhere and the marriage would have been prohibited here, they could come back to this country and then live as man and wife, and that is why he wishes to prohibit it.

That is the only reason.

Now I submit that if a South African leaves South Africa and adopts a domicile somewhere else, he is not likely to want to come back to South Africa if he has purposely adopted another domicile. How many cases do we have where they have adopted domicile and then they return to this country? The Minister has not given us any examples. [Interjection.] I am talking of the case where they go abroad and accept another domicile for the purpose of marrying a person belonging to another group. I am talking of the case where they do not mary bona fide, where a South African accepts a domicile abroad merely to marry a woman whom he would not be allowed to marry in South Africa. One of the difficulties we have in applying this law to marriages abroad is how are we to decide who is a European and who is not? This definition says: If you are obviously in appearance a European or consort with Europeans. In probably 99 per cent of the countries outside South Africa there is no racial discrimination as we know it here, and a South African may marry a woman of dark complexion in Brazil or some other country, and those women will never know whether their marriages will be recognized in South Africa. How could we apply this test to a woman who is not a South African, living abroad where they have no race classification? I submit that if this law is applied as it is now. it will bring about uncertainty. Women will never know where they stand. If it is merely to extend the principle which this House adopted on a previous occasion, in 1949, that we should have legislation prohibiting …

The preamble says so.

Yes. If it is merely to extend the principle … the House has already accepted the principle of legislating, and we took care then to protect innocent parties. The Minister shakes his head. I know that he is going to refer to the question of people who are domiciled in South Africa …

That is the clause we are amending.

… and who go abroad and marry a prohibited person there. Sir, had that not been contained in the law it would have made it so easy for people to flout the law. People domiciled in South Africa could then just go across the border, get married and come back again. They would make the law look ridiculous. But the position there is not at all the same as in the case of a person who leaves the country permanently and who does not go abroad merely to flout the law, in other words, to marry abroad and then come back with a Coloured wife. Therefore we on this side of the House feel that innocent parties must be protected, and for those reasons I wish to move the following amendment—

1. (1) the rights of women married bona fide outside the Republic and in contravention of the provisions of the Bill are not protected;
   • and
2. (2) the status and rights of any children of such marriages will be prejudiced”.

I agree with a great deal of what the hon. member for Transkei has said and I will support the amendment he has moved although I feel that it does not go far enough. However, if his amendment could be accepted by this House it would certainly help in some way to diminish the possible damage arising from this amending Bill. Sir, I think it is just absurd in this day and age for South Africa to be legislating in this way at all. To be increasing the penalties for inter-racial marriage in 1968, when every other civilized country in the world is moving right away from this concept of racial discrimination, seems to me to be an absolute anomaly, to put it at its mildest. The only other countries which until recently at any rate had actual laws on the Statute Book forbidding marriages across the colour line, were the southern states of the United States. That legislation has almost completely fallen away and it is highly doubtful now whether any of the Acts which still remain on the Statute Books of the southern states, which, incidentally, are notoriously the most backward of the states in the United States, will have any validity these days. In fact, they have not been tested for a long time and it is highly doubtful whether they would be recognized by any of the American courts, and yet here we are in South Africa solemnly introducing another piece of legislation which goes contrary to all the thinking of the modern world, and for what purpose? I think numbers are perhaps important here. How many people, how many South African citizens, who are still domiciled in this country dash out of South Africa in order to contract a marriage across the colour line? I would point out that the principal Act itself really had very little effect on the whole complexion, if I may use that rather unsubtle pun, of South Africa. The fact that the Mixed Marriages Act was passed in 1949 did not alter the racial set-up in this country at all. Before that date you could not legalize a mixed marriage in the Transvaal because there was no legal machinery provided for marriages between Whites and Africans, but the Mixed Marriages Act was not passed until 1949, and even before that the commission which investigated this matter found that fewer than 1 per cent of the marriages contracted in South Africa before 1925 were across the colour line and less than three per 1,000 in 1936. In the year before the Act was passed, i.e. in 1948, there were only 17 mixed marriages in the whole country so in those days it was not at all obvious why it was necessary to have such a law. I believe that the introduction of that Act was rightly opposed by the then Opposition because there was no real need for it. In fact, this subject of marriage across the colour line, marriage between adult individuals, should not be the subject of law at all. It is a purely personal matter and it should be left to the individuals concerned. If the actual strictures of society—and there are enough strictures against inter-racial mixing of any kind in this country—are not sufficiently strong to prevent such marriages, it is very doubtful whether laws are going to prevent miscegenation. Indeed, that has been our experience in South Africa. It is only on the fringes of society that one gets any miscegenation as such. The Immorality Act was an offshoot of the Mixed Marriages Act because one obviously could not prohibit marriages across the colour line without also prohibiting immorality across the colour line, and when I moved the deletion of those sections of the Immorality Bill, which brought so many people into disrepute …

Order! That measure is not under discussion now.

I was just saying that when I moved the deletion of those clauses, I recognized that one would also have to repeal the Mixed Marriages Act. My point therefore is that if we do any legislating in this House to amend the Mixed Marriages Act, it should be in the other direction because we are going counter to all the normal accepted moral codes in South Africa and we are also going counter, I suggest, to the normal course of acceptance in the modern world. This legislation is quite unnecessary and I do not know why the hon. the Minister has introduced it. He has not told us; he has not quoted any specific instance which will fortify his case in introducing this amending law. Sir, I wonder if he realizes in fact what a lot of damage this sort of legislation can do to South Africa? There may be other cases which I know nothing about but the one case that I can remember is a case where a couple had to cross the border in order to effect a marriage which could not be solemnized in South Africa. I refer to the famous Singh case of a few years ago where an Indian South African and a white South African woman left South Africa. I think they went to Rhodesia, where by that time the Prohibition of Mixed Marriages Act had been repealed. They got married there and returned to South Africa, and what happened to them? They were promptly arrested under the Immorality Act because South Africa did not accept the validity of the marriage. If I remember correctly they were acquitted on a technicality and the technicality was that the State could not prove domicile. I believe that this is one of the reasons why we have this amending Bill before the House to-day. I think it is ridiculous. That Singh case brought South Africa into the most awful disrepute. I did a little count at the time to see what happened, and I remember that one of the newspapers mentioned that 95 inches of space had been devoted in one day in British newspapers to this famous or infamous or notorious or ridiculous Singh case, 95 inches of space in British dailies and a page-long column in Time magazine with its vast readership of two million people. Honestly, Sir, was it worth it because an Indian man and a white woman decided to get married, married in Rhodesia, and came back as they wanted to live in South Africa?

They should have stopped there, since it is against public policy here.

As the hon. the Minister knows perhaps they subsequently left this country because life here was impossible for them. They went to another country in Africa where inter-racial or multi-racial or across-the-line marriages did not make everybody have a cadenza, as if the end of the world had come. Really and truly, it is time we became adults about these things. I cannot see why we are now introducing this absurd extension of the existing law which to my mind should not be there at all, but that is another matter. The hon. member for Transkei has quite correctly moved an amendment. As I have said, I shall support the amendment and I do not think it is competent for me to move anything that goes further except to vote against the second reading. The hon. member has quite correctly pointed out the consequences to women who outside South Africa marry men who are South African citizens— because that is the major alteration to the Act as I see it—and who are domiciled in South Africa and to the children of such marriages. That is a very important consideration. Of course, there is another important consideration, and that is exactly what happened to the Singhs. Take the case of a South African male who goes out of this country and marries a South African female of another colour. The hon. the Minister of the Interior could not prohibit them from returning to South Africa as undesirable aliens, as he did in the case of a well-known South African writer who married a highly cultured young lady in France who happened to belong to a different colour group. He was not allowed to bring her back to this country. She was declared an undesirable alien so that the hon. the Minister of the Interior could stop her from coming. But had the woman been a South African girl, nothing … Will the Minister tell me whether that is correct?

That is correct. That is the point.

Yes, that is the whole point and the reason for this Bill. So back they come because the hon. the Minister of the Interior cannot stop them from coming and out comes the claws of the Minister of Justice and he grabs them under the Immorality Act. Now, can you imagine the situation if this happened in this country? Can you imagine what tremendous uproar there will be overseas? Two people, two South Africans, who might have married overseas and been living together for a number of years, for reasons best known to themselves decide to return to their own beloved country only to be arrested immediately under the Immorality Act.

They gave up their domicile before.

That may be so. But for heavens’ sake, is that a crime? The nicest thing about being alive in 1968 is that one can fly happily around the world so easily; that one can visit other countries and even live there for a few years and then change your mind and decide to come back to South Africa again. Is there anything wrong in that? It is not a sin to want to try another country.

Order! I think the hon. member is opening the subject too widely now.

I am sorry, Sir, for being so bold. The hon. the Minister …

The hon. member must not allow herself to be tempted by the hon. the Minister.

I am seldom tempted by him, Mr. Speaker. Perhaps he does not try hard enough! But may I point out, Mr. Speaker, that the Minister himself said that that was the whole point of the legislation he was introducing. Therefore I submit that I am entitled to explore it fully. I say it is a most dangerous thing the Minister is doing here to-day. It has become a new thing to talk about a “verligte” image but if we want to project that image to the outside world this is a most ludicrous way to go about it.

So I want to add my plea, for what it is worth, to other words which have been uttered in this House this afternoon and ask the Minister not to proceed with this thing. I find this a repulsive piece of legislation—it is repulsive to me that we have to go to these lengths to try to victimize people who have got married because they wished to be married. Surely, it is a very personal thing indeed when one has to decide whom one wishes to marry. But now we have the entire South African law bearing down in all its harshness on these people should they decide to come back to live in this country. I shudder to think of what will happen to this country should a case occur of people who, having given up domicile, later wish to return as a married couple to South Africa with their children only to find themselves arrested under the Immorality Act. Therefore I earnestly ask the hon. the Minister not to proceed with this piece of legislation, but to withdraw it as he so courageously did when he was going to introduce legislation last year and in the end did not.

The hon. member for Houghton must excuse me if I do not immediately reply to her tirade. I want to leave her on one side, the left side, because that is after all where she belongs. I shall leave it to the Minister to reply to her—in any case he can do it with more charm than I can. I want to confine myself to the arguments raised here by other hon. members. Naturally this side of the House is not insensitive to the lot of children. But I am amazed that the United Party does not want to accept the full consequences of their own policy. It was laid down by General Smuts as the policy of the United Party that they were opposed to race integration, in other words they support the principle of legislation to prohibit this 100 per cent. If that is so, I want to ask why the United Party is not prepared to accept this legislation in all its consequences? The Act is worded in such a way that it affected people who were domiciled here. But, as the hon. member for Houghton said, a loophole was discovered in the Act. A loophole was discovered in connection with people who are South African citizens, who are domiciled in another country, who enter into a legal marriage, and who then return to South Africa. They are then legally married. This is a consequence of mixed marriages. The United Party must accept that we are now going to close the door to these people.

What about those who live here? If the marriage officer acts in good faith, whether they be Coloured and white or not, they can live together.

That may be so, but according to the Act the marriage is of no effect. It is as clear as daylight that such a marriage is of no effect. Hon. members should take a look at section 1 of the existing Act.

Firstly I should like to say something about the arguments raised by the hon. member for Transkei. He went into the case of one of the children, and he then had recourse to the American legal system and dredged up court cases which allegedly indicated that we in South Africa did not want to accept the legitimacy of those children. But surely we have our own administration of justice, and in our own law there is the well-known Seedat case. I just want to read what was said about that case. It was a Natal case. I want to read what was written in Acta Juridica of 1964—

This is a South African Appeal Court case. This ruling is accepted in South Africa.

Have you read Seedat’s case?

No. Hon. members on the other side borrowed the relevant court reports from the library, and we were thus unable to get hold of them, and that is why I have to read this little item about the case. It is an Appeal Court case and in it the principle was laid down—that is the ratio of this case. It is also an international legal rule, namely that the children will be acknowledged as legitimate according to the law which applies where the father is domiciled. If we suppose that this is not the position however, then the case cannot be distinguished from a case where the people were married here. People who were married here can have their marriage declared invalid at any time. If the parties were bona fide the children can be declared legitimate. Is that not true? Surely this is so according to the Prinsloo case. The Prinsloo case stated that children could be declared legitimate by the court. Let us now consider the practical effect of this legislation. A person goes to court and states that he wants to have his marriage annulled because it is a mixed marriage. When he makes his application he also requests the court to declare that the children born of the marriage are legitimate, that they are not illegitimate. That can be done. But suppose, for example, a marriage is entered into overseas—take the case which we are now dealing with—and one of the parties were to return to South Africa and apply for the marriage to be annulled. Even if only one of the parties were bona fide, the children of the marriage could still be declared legitimate. That is in accordance with the Prinsloo case. The Prinsloo case stated that where one of the parties to a putative marriage were bona fide, the children could be legitimized, not so? Hon. members on the opposite side probably agree with me, or should I read the Prinsloo case to them? Suppose a person who entered into a marriage overseas came to the court and declared that he was bona fide when he married. He applies for the marriage to be annulled and the children to be declared legitimate. Surely he can do that. What is bona fide in terms of the provisions of the Act? A party is bona fide if the other party to the marriage has a white appearance. Hon. members on the opposite side can ask the hon. member for Durban (North)—he was concerned in the case Herbst and Kuhn of 1961. Did the court not lay down in that case that for the purposes of this Act the criterion was one of appearance? If a person were to marry another person who was white in appearance, and he or she was under the impression that the other party was white, then he or she is bona fide. The bona fides in this case are precisely the same as the bona fides which apply to a marriage in this country where the person solemnizing the marriage was bona fide.

The girl in that case was classified Coloured under the Population Registration Act.

That is not the criterion which is being applied for the purposes of this Act. The criterion for this Act is that of appearance. The criterion is laid own as follows in the Act—

That is the criterion. In this specific Act the criterion is one of bona fides. We are not dealing with the Race Classification Act now. In other words, if a person returns to South Africa from overseas and should want his marriage declared annulled, all that he has to do is to say, “I did not know the person whom I married was a non-white; in appearance she was a white and I was therefore bona fide, and consequently my children are not illegitimate.” The court can then make an order to this effect.

And if he does not want the children?

If that is so, then surely the argument of hon. members on the opposite side falls away. Then their entire argument falls away.

And if he does not want the woman?

He must, in any case, go to court to have the marriage declared void and of no effect, not so? At the same time the applicant may ask that the children be declared legitimate. If such an order is not made by the court the practical position will remain unaltered. This the hon. member on the opposite side has now shouted at me across the floor. In reality the amendment of the hon. member is therefore not a valid one. Application for annulment must be made to the court, and at the same time the court can be asked to declare the children legitimate, and the court can declare them to be such.

Mr. Speaker, the hon. member for Prinshof has quoted from Acta Juridica one of the leading cases on this matter which was decided by the Appellate Division, by the giants who sat on that Bench in those days. This was the leading case on the legitimacy of certain children, the issue of a polygamous marriage. The facts of that case were that Seedat in fact celebrated two marriages, one in Natal and one in India, and the question was whether the children of the second marriage, the polygamous marriage, were legitimate or not. What was in issue was whether the children had to pay estate duty or not in terms of the relevant statute. One must in the first place appreciate that Seedat’s case was decided in 1917, when there was no Act dealing with this subject under discussion on our Statute Book. That was in 1917.

The Appellate Division laid down a certain proposition which in fact is the ratio of the case.

Certainly the hon. member knows it does not matter whether it is the Appellate Division or any other court which lays down a certain ratio, this Parliament can nullify any decision of a court, including the Appellate Division—it can change the law. The fact of the matter is that at the time when Seedat’s case was decided there was no legislation such as is now under discussion. Had the hon. member read Seedat’s case, he would have seen that the position is not quite as simple as the hon. member indicated. This is a most difficult, a most complicated matter so far as the application of private international law is concerned. This is in fact a conflict of laws. This matter is even more difficult because there are virtually no precedents for this type of prohibited marriage. So far as I am aware, this is the first occasion that a Bill is being passed in this form whereby the lex loci celebrationis, that the hon. the Minister spoke about which determines the validity of a marriage will be breached, will be disregarded, where the marriage was the first. As far as I am aware, there is no parallel for this anywhere. That complicates the issue.

In Seedat’s case, they decided that it is impossible for our courts when dealing directly with the position of a party to such bigamous union to say that she ever was a wife in the sense in which our law uses that term, “from which it follows that she cannot be recognized as a surviving spouse within the meaning of the statute. It is a hard result, no doubt, that a woman validly married in one part of the British Empire should not be treated as a wife in another part. But relief can only be properly sought from the legislator.” That is for the information of the hon. member for Prinshof. This is what they said:

Mr. Speaker, the legislature, I shall indicate, did otherwise decide in 1949 and will otherwise decide if this Bill goes through in this form.

But more important than that is another part of the same judgment. This is the judgment of Innes C.J., where it was said, when they decided that the children of the union were legitimate for the purpose of succession to movables:

There is the big difference. They left the question open in 1917. This is no authority. Seedat’s case is no authority whatever to-day, for the proposition even that the hon. member relied on. Certainly the question they have left open has not, to my knowledge, been decided as to whether they will in fact say that legitimate children in terms of the application of the law of the domicile may succeed to immovable property here. The hon. member for Transkei pointed out that that will be determined by the lex situs.

So you see, Mr. Speaker, as we go on and on with this discussion, the matter becomes more and more complicated. But I am glad that the hon. member for Houghton will support our amendment. Frankly, I feel that anyone who encourages the mixture of blood needs his head read, whether it is in South Africa or any other part of the world, whether civilized or not.

No other civilized country has such a law.

Yes, but my point is that anyone who encourages admixture of blood, even in a civilized country, needs his head read because it can only bring unhappiness to all the persons concerned.

It is your own personal decision.

I want to leave the temptation of the hon. member for Houghton, and deal rather with the loophole the hon. the Minister has talked about.

He says that there are no cases that he has in mind, no cases at all. There are no cases that he contemplates and knows of. I should not think anyone would contemplate such cases. Anyone who leaves the country and gets married to someone whom he discovers is in fact a non-European in terms of this Act, is most unlikely to come back.

[Inaudible.]

No, I am not. Here we introduce a Bill: If someone is going to come back, and the hon. the Minister could perhaps tell us who they are, after going mala fide—this is the point—then this is an entirely different proposition. Our proposition relates to those who are married bona fide. We could go on like this for days, talking about the effects of it. But, without having a concrete example, without knowing the evil the hon. the Minister wants to counter, this is like a blind man in a dark room, looking for a black cat that is not there. We could go on like this for ever. Does this not really make a mockery of a religious marriage? One of my non-legal colleagues suggested that one ought to have some sort of amendment as the result of this provision, to provide that in the marriage service outside South Africa, when anyone marries someone who might be non-European in terms of our laws, the words “till death us do part” should be deleted and substituted by “until I return to South Africa”.

How stupid!

Yes, how stupid. Exactly !

[Inaudible.]

I do not often agree with the hon. member for Brakpan, but on this occasion I do. How stupid is it? That is precisely what is provided here. The Church would not countenance it, obviously. [Interjection.] As the hon. member for Brakpan said, it would be stupid, but that is exactly the effect that this amendment would have. One goes over there, one gets married …

That was exactly your attitude in 1949—opposed to this legislation.

No. No amount of this sort of thing can detract from the fact that this is the effect that it could have. If the hon. member for Brits does not like it, he must use his influence to see that that sort of thing cannot occur under this Bill. That is exactly the effect that it has.

Why do you not have the courage to propose the repeal of the Act? You are too spineless.

Order!

It is not very often that we have the position that there is a Bill which is to deal with something and the hon. the Minister cannot tell us who is going to be affected, or whether in fact there is anything known. Why are we passing this Bill then? Gilbert and Sullivan, in “Trial by Jury” said: “I am the parliamentary draftsman; I make the country’s laws; and of half the litigation I am undoubtedly the cause.” Well, Sir, I would like to say that this may well be the cause of litigation if in fact anything will come of it, if there are these people that will come back. But let me say this to the hon. the Minister. The lex loci celebrationis deals with the formalities of the matter. If the marriage was conducted in accordance with the formalities of the country where it was celebrated, then it is valid. It is the domicilium which deals with the consequences. I dealt with Seedat’s case and as to what that said about the consequences. Seedat’s case was dissented from by the Federal Appeal Court of the Federation of Rhodesia and Nyasaland. The matter is by no means clear. The hon. the Minister may feel that the law is clear, but I promise him that if he will go into this and take some time to look into this matter after the second reading, he will find that the matter certainly is not clear. There is no guarantee that the lex loci domicilium is going to be followed.

Let us take the position of the Act itself as it stands and as it is about to be amended. We provide here that, if the marriage has been solemnized in good faith by a marriage officer and neither party has made any false statements relating to the marriage amounting to a contravention, that marriage shall be deemed to be valid. Then it goes on to say that the children conceived or born of the marriage during the time of the marriage, are deemed to be legitimate. Then the Act goes on to provide that when persons are married outside of the Republic, under different circumstances, in contravention of the provisions of this Act, their marriage is unlawful. As to the consequences, there is nothing said whatsoever. If I were arguing the case for someone whom the Minister of Justice is proceeding against I would be entitled to argue that the legislator intended that this relief should not attach to marriages which were conducted outside the Republic.

That was the intention.

As my hon. Leader says that was the intention. How can we legislate to provide that marriages solemnized in good faith are invalid? Let us take it so far as to say that the parties acted in good faith because there could be situations where they did not act in complete good faith although married by a marriage officer who acted in good faith. Then their marriage is valid and their children are legitimate. In the case of people who marry here the wife is protected. But if someone goes overseas and gets married in another country, then a fortiori we should extend those benefits to the wife and children of such a marriage. But we do not. Perhaps the hon. the Minister in his reply will tell us why we do not and why we should not. The fact of the matter is that if anyone who is a citizen of this country leaves intending to obtain domicile somewhere else, it simply means that he is there and intends to stay there permanently. He intends to make that place his permanent home. There he goes to a church, goes through a lawful marriage ceremony and there he has children.

Everything is legitimate and everything is in order.

Yes, everything is then in order. But then he decides to come back to South Africa. He may have been deported but he may decide to return.

Or to shirk his responsibilities to his wife.

Yes, he may say that he is tired of his wife and decides to return to South Africa. Let us say that he does not have any children. He tells his wife that he is tired of her and that he is going to return to South Africa. He then returns to South Africa and marries someone else here. He can marry someone else the moment he steps ashore here.

This ought to be called “The Promotion of Bigamy Bill”.

One of the difficulties with which we were faced the last time a Bill of this nature came before this House and which we also faced in 1949 was that while it was easy for Indians and Bantu to know who was an Indian and who was a Bantu it is not so easy to know who is a Coloured person. A person who is obviously in appearance a white person is a white person, but if he is not obviously in appearance a white person, then he is a white person if he habitually consorts with Europeans as a European. When this is extended to another country, you habitually consort with white people. That person may habitually consort with non-white people here but the man who marries her might not know this. To that marriage there must attend all the consequences that we do not extend to mixed marriages in this country.

I think that this Bill can do no good. If the hon. the Minister is right when he says that he does not anticipate anyone having to be dealt with in terms of it, then let him withdraw the Bill. He should withdraw it and reconsider the matter when and if the situation arises. But let us not now proceed to do something that will have evil consequences if there are such people as those to whom the hon. the Minister referred. I hope that he will in fact withdraw this Bill and that he will give further thought to the arguments that have been advanced to-day before we get to the Committee Stage.

Mr. Speaker, the hon. member who has just resumed his seat, told us a cat story. I think that this was very appropriate, because he had the cat by the tail. I do not want to disturb this calm atmosphere in which we have been discussing this matter up to now. I listened very attentively to the hon. member for Durban (North). Mr. Speaker, I am not going to keep you occupied with a long account of legal arguments here. I think we must return to the principle of this Bill. It is the principle which is at issue here. This is a principle which is also recognized by members on the Opposition side and which is accepted, in the words of the hon. member for Transkei, “by all sides of this House”. It is a principle which has been elevated in our legislation and in our statements on both sides of this House into a matter of public policy. What has happened now is that the hon. member for Transkei, if I understood him correctly, quoted an American case and said that an American court had stated that there was no reason why they could not accept a California ruling in Connecticut, except if there were a reason “why it should not be recognized as a matter of public policy”. That is precisely what we are dealing with. Even if a marriage has been solemnized outside the boundaries of the Republic and that marriage is legal there—as we had with the California case—then we must determine here whether there is no reason, on the grounds of public policy, why that marriage should not be recognized here. That is precisely what the position is. It is based on the principle of public policy, public policy which is accepted in this House on both sides, and has been embodied in legislation.

We come now to a second matter, and this is the reason why I am returning to the principle of the legislation. In the existing legislation a further principle has been accepted which provides that where a person who is domiciled here, whether he is a citizen or whether he is a non-citizen of the Republic, enters into such a marriage, then such a marriage is illegal. Now we find the anomaly here that we are making a stricter law for the per-son who is domiciled here and who is not a citizen, but that we are allowing a citizen of this country a liberty which we are not allowing a person who is domiciled here. It is being denied to the man who comes to live here without being a citizen of the Republic, and who is only domiciled here. The South African who was born under this law and has given up his domicile, is being allowed the freedom to enter into a marriage against the principles of our legislation, a freedom which is not being granted to a domiciled person. This is an anomaly. This principle, in respect of domiciled persons, is contained in the existing legislation, and it is not my intention to criticize that principle. The existing legislation has already been passed. I accept the principle in the existing legislation, but I want to point out that, in the amendment before us, an obvious anomaly is now being rectified. Now, it is true that we have every sympathy with those people who may find themselves in a difficult position, and with the children whose future may be uncertain. But I want to remind hon. members on that side of the House that there is a legal expression which we very often hear in our legal circles. It is that we cannot make legislation for the exceptions, but that we must legislate according to principles because “hard luck cases make bad law”.

[Inaudible.]

Mr. Speaker, with all respects, that hon member is a political “hard luck case”. The position now is that a dispute is being unleashed on behalf of a South African citizen who gets married abroad because it may entail certain complications for his wife and children. But this is already the present position. But what about the domiciled person who goes abroad, retains his domicile and is married there? In his case we say that the marriage is null ab initio; we do not recognize it. But the South African citizen who gives up his domicile and does the same thing is let off. Do you see now what the logical conclusion would be, also in respect of the further consequences of the marriage, as regards the children, etc.? Now the position further—and this has already been emphasized— is that if such a South African citizen does in fact get married there, there is no uncertainty. We have these criteria to which his wife must comply. If she satisfies those criteria—and they are very easy criteria—they can enter the country and then the marriage, and all the consequences of the marriage, are legal. I do not see therefore how this will result in exceptional privation.

But we must also take note of another possibility. As the Act stands at present we can find a South African citizen who leaves the country and pretends to give up his domicile, but who secretly retains the animus revertendi, which is the criterion as to whether you have given up your domicile or not, and who leaves the country mala fide precisely so as to enter into such a marriage, and who subsequently informs us: I have now acquired the animus revertendi and I am returning. That South African citizen, whose actions are mala fide, is subsequently in a much more favourable position and is really being allowed to break the law wilfully and with malice aforethought, whereas the domiciled person is prohibited from doing so. Surely that is an anomaly, and in view of this it is only fair that we should introduce legislation which will place both the domiciled non-citizen as well as the citizen of South Africa who, whether bona fide or mala fide professes to have given up his domicile, on the same level. It is of no use our arguing whether such legislation is necessary or not. We have been dealing with this existing legislation in this House, and we have accepted that legislation. We are simply dealing with the single principle as to whether a South African citizen, who leaves the country, should be in a more favourable position than a person who is domiciled in South Africa.

The hon. members for Odendalsrus and Prinshof seem to find it difficult to understand why we on this side of the House do not support this amending legislation when we are ad idem with the Government that it is undesirable to foster mixed marriages between different racial groups. Sir, our attitude to this type of legislation and the reason why we think this matter cannot be dealt with by legislation satisfactorily was set out very clearly by General Smuts when he led off the debate in 1949 and by other speakers who followed him. It would be well for the hon. members for Prinshof and Odendaalsrus to study carefully what was said by these hon. members, because I believe that the criticism that they presented to the House in support of their argument that it was undesirable to try to stop this by legislation has been proved correct by what has happened throughout the intervening years from 1949 until to-day. We do not believe that this sort of thing can be satisfactorily dealt with by legislation, but we believe also that the tragedy of this type of legislation is that it creates a lot of problems for perhaps innocent people, children and wives who are in no way to blame. It is for this reason that we do not believe that this amending Bill can be supported.

The hon. member for Prinshof made an interesting statement during his speech. He said that the Government were not insensitive to the lot of innocent children who might be affected, but he suggested that they were entirely protected. He quoted the case of Seedat. The hon. member for Durban (North) has replied to that and has pointed out that Seedat’s case is not a proposition at all for the view that the children are automatically legitimate if they are legitimate according to the law of the country of domicile. That issue was not decided in that case. [Interjection.] It goes further than this, because we are amending the common law. We did so, first of all, in 1949. From that stage onwards the common law was amended, and even if that principle, as suggested by the hon. member for Prinshof, could be extracted from Seedat’s case, once we had changed the law to declare marriages of a certain type null and void in this country, that principle can no longer apply, because anything that Parliament passes to-day or has passed in the past overrides any decision which was given before that legislation was passed. So it is perfectly clear, in our opinion, that by this amending legislation which is before the House at the moment, the children may not be legitimate in so far as the laws of succession are concerned. They may also not be regarded by our courts as legitimate for the purposes of maintenance. This is important, because it seems to me, from the arguments of the hon. members for Prinshof and Odendaalsrus, that if this is the case they would perhaps be prepared to so amend this amending legislation as to protect those people. I gather that the hon. member for Prinshof was sufficiently concerned about this to wish to protect the position certainly of the children and also perhaps of an innocent wife.

An innocent spouse can apply to court for the legitimization of the children. That is the position at the moment.

The position is not as simple as the hon. member for Prinshof would like the House to believe. Let us take the case of maintenance, for example. We passed an Act in 1963 dealing with maintenance.

You have not answered my question in regard to legitimization.

If the hon. member would just be a little patient, I will deal firstly with the question of maintenance, because it is simpler to explain that position to him, and perhaps I could then go on to the question of legitimacy.

In 1963 we passed an Act to consolidate the laws relating to the reciprocal enforcement of maintenance orders. It was Act No. 80 of 1963. In regard to final orders of maintenance, our courts are obliged to make these an order of court if the courts are satisfied that it was properly made by a court outside the country. This is provided in section 3.

In regard to provisional maintenance orders, our courts do not automatically make them orders of court. The respondent, who would be the father, has the right to appear before the court and to attempt to prevent the order being made an order of court. I suggest that since hon. members opposite admit that this legislation that we are now putting through the House is based on public policy, in other words, that it is contrary to public policy to have mixed marriages, it is perfectly clear that the respondent would be able to allege that in terms of South African law the marriage upon which the maintenance order is based cannot be recognized; it is void and of no effect as far as our courts are concerned. That being so, he could allege that in terms of our law, our courts would not be entitled to recognize any rights arising from that situation, and therefore the courts would not recognize any maintenance order.

Are the natural parents not always liable for maintenance in our courts?

Hon. members opposite do not seem to realize that by passing this type of legislation they are going contrary to all the recognized principles of international law and the recognized principles of common law regarding maintenance, because they say quite clearly and unequivocally: In South Africa such a marriage is void and of no effect.

That does not affect the maintenance.

Of course it affects the maintenance. If our courts are faced with a maintenance order arising from a marriage entered into by parties outside South Africa and our courts are told that in terms of this amending legislation such a marriage is void and of no effect whatever, then surely that is exactly the attitude that the courts must take, that is to say, that the marriage is void and of no effect, and if it is void and of no effect, how can our courts in South Africa recognize any right as arising from such a marriage?

Including maintenance?

Including maintenance. Sir, it does not help to quote cases which were decided by our courts before the 1949 Act was passed or before the passing of this amending legislation, because the judgments in those cases are rendered of no effect because we are changing a fundamental principle here. The hon. member for Prinshof referred to the case of Prinsloo and said that where one of the parties bona fide enters into the marriage, the children can be legitimated. There are two points that arise from this. First of all, Prinsloo’s case was decided before this legislation and the judgment in that case is no longer of any effect.

Prinsloo’s case was decided in 1958.

Prinsloo’s case did not decide the question of legitimacy in respect of children who were born under the 1949 Act. It had nothing to do with a mixed marriage entered into outside of South Africa—nothing at all. But the other question that arises is this: The husband concerned may well wish to be released from his obligations and may come back to South Africa simply for that very purpose, the South African courts would then take no account of his marriage and would not regard any responsibility as flowing from such a marriage, in connection with maintenance or succession or anything else. The hon. the Minister, in introducing this legislation, referred to the lex loci celebrationis,which is the law of the place of marriage, and he suggested that if the parties were validly married in terms of that law, then the marriage would be a valid marriage.

In that country.

Yes, in that country. That is the point. It is a valid marriage in that country but in South Africa it would not be recognized as a valid marriage.

That is exactly the object of this legislation.

If this is the object of the legislation, then the Government must also realize that it will have the same effect as far as the consequences of marriage are concerned. [Interjections.] Sir, the hon. member over there has just entered the Chamber; he has not heard the rest of the debate. He should perhaps read our amendment first and then he can make interjections of that sort.

Do you know what principle is at stake here?

We would like the hon. the Minister to elaborate on the statement he has just made. He admits that this legislation specifically makes the marriage null and void in South Africa. If that is so, could he explain to us how a South African court, if it must regard the marriage as being null and void, could recognize any rights as flowing from such a marriage? It is nonsense, Sir, because the South African courts must take the attitude that that marriage never took place and that it does not exist. That is the meaning of the term “null and void and of no effect”. The South African courts must therefore take the view that the person concerned has not contracted any responsibilities arising from that relationship. As far as we can see it is as simple as that.

In regard to the question of legitimacy, the hon. member for Prinshof has suggested that the parents could get the child legitimated. I would like the hon. the Minister to tell us how the parents would be able to do this in the South African courts. It is one thing to say that the children will be regarded as legitimate overseas, but how can a South African court say in one breath that it takes no account of the marriage and then in the next breath say that it regards the children as legitimate? Will our South African courts regard the children as succeeding in terms of the laws of intestacy? The hon. the Minister will realize that this is of considerable importance, because illegitimate children do not have the same rights in intestate succession as legitimate children and, furthermore, what is the position going to be in regard to the question of succession to immovable property? Is the child going to be allowed to succeed to immovable property in South Africa? He could do so in intestacy if he is regarded as legitimate, but then in terms of our law such a child will be regarded as Coloured, because he is the child of a union between a White and a non-White. Is he going to be permitted to succeed? The hon. the Minister thinks that he will succeed in intestacy. I would like to know on what grounds he says so.

Are you going to quote the Group Areas Act?

No, I am asking the hon. the Minister what his attitude is and I am giving another example of the difficulties and problems which arise from this legislation. I suggest to the hon. the Minister that the crux of the matter is that our courts cannot on the one hand be told to regard such a marriage as null and void and of no effect and on the other hand be expected to recognize rights as flowing from that marriage, because the rights in question are only rights which flow from a valid, legal marriage, and in terms of our law this is not such a marriage. Sir, when the hon. the Minister replies I hope he will deal with these problems, because if we cannot get satisfactory answers, it seems to us that our amendment is a very valid one and we will certainly oppose the second reading.

During the course of the debate reference was made here to many matters and a great number of points were raised. I shall reply to a few of those points, but the basic fact is this: This side of the House adopts the attitude that we are opposed to mixed marriages and miscegenation and we are implementing that policy in a logical and consistent way.

Is this logical?

We are implementing that policy to its logical conclusion. In the first place we stated that marriages between the various colour groups would not be allowed; we declared such marriages to be illegal. We closed up the loophole which could have arisen and which could have afforded a married person who was domiciled in this country the opportunity of getting married to a Coloured person outside the country and then returning. We said that such a marriage would also be illegal. But there is one remaining loophole, and that is the case of the South African citizen who is not domiciled in this country and who enters into a marriage overseas, in another country where he is domiciled, with a person of another colour group where both of them are then South Africans, and who possibly want to enter the country and live here as man and wife. That is the loophole we are now closing. We are carrying the policy of this side of the House into logical effect and we are also carrying into effect the policy of that side of the House in so far as they do not want miscegenation either, the only difference being that they do not want to prohibit it by way of legislation.

A few questions have arisen, the first one being whether such a marriage is legal. In the first instance, we are providing very specifically in this Bill that such a marriage will not be deemed to be legal within the Republic. In the Republic it will be void and of no effect. We are not talking now about what is happening outside the Republic, because we have no say there. Outside the Republic the matter is controlled by private international law. What is the position outside the Republic? The position outside the Republic is in the first instance that as far as the validity of the marriage is concerned, this is regulated by the lex loci celebrationis. That is the position, and there is sufficient authority for that I do not want to quote the other authorities now, but I do just want to read a brief extract from what Hahlo states in his “Husband and Wife”. He states—

This is what is stated by one of the greatest authorities on this particular subject. And he said this after we passed the Mixed Marriages Act in 1949.

Why are you passing this Bill then?

But surely it is quite clear. I have already stated why we want to pilot this measure through the House. We want to place this measure on the Statute Book in order to declare such marriages void and of no effect in South Africa, but where people get married outside the Republic, there the validity of the marriage is assessed and controlled by the country in which they were married. Surely that is quite clear. We now come to the consequences of such a marriage. We maintain quite rightly, and we are not ashamed of this, that if such a couple want to return to this country, then their marriage is of no effect and they are living in immorality and we take steps against them because it is against the policy of our country to allow mixed marriages, but we confine ourselves to what happens within our borders. Hon. members on that side are so concerned about the consequences of such a mixed marriage. As far as the consequences of the marriage are concerned, we are able to distinguish. Certain consequences which arise out of such a marriage, are going to be prejudicial to such a couple; there are other consequences which will not be prejudicial to them. Hon. members must bear in mind that we are now dealing with a male person who has given up his domicile in this country and who has accepted domicile in another country, and who has gone and married a Coloured woman. While the marriage is valid in the country where they were married, what is the position of the children of such a marriage? Provision is not made by the lex loci celebrationis for the position of the children. Provision is made for their position by thelexdomicilium.We simply cannot get away from that; there are various authorities for that and I shall refer in a moment to the Seedat case. We are now dealing with a South African citizen who has accepted completely legal domicile in another country; in other words, the children have been legitimately born according to that legislation. In fact, they have also been legitimately born according to our legislation, judging from the Seedat case. Various hon. members on the opposite side have said that we cannot take the Seedat case as an authority because it was heard by the court before this Act was passed, before we “formally declared it to be against public policy” but when the Seedat case was being heard, polygamous marriages were also against “public policy”. [Interjections.] Of course it was against public policy—in this country polygamous marriages have always been against public policy, and notwithstanding that we find in Seedat’s case that the court ruled the children to be legitimate. It will be precisely the same case here, and therefore I cannot see how, in this connection, any injustice can be done to innocent children born of such a marriage.

I come now to the hon. member for Musgrave and what he had to say about maintenance orders. If there is an agreement existing between two countries in regard to the implementation of maintenance orders, then the position is simply that a legal order is made against a man who now finds himself in a country other than the one where the order was made, has to be implemented in that country. Our court does not go into whether the court in the other country did in fact issue a legal order. The law of this country is not applied for that purpose. All our court has before it is a legal order, and it is carried out in this country.

What about provisional maintenance?

No, the application will take place outside the Republic and it will be capable of being effected within the Republic. There is no doubt about that whatsoever.

How many countries do we have reciprocal agreements with?

At this stage I cannot say. I readily concede that if a South African citizen who has not given up his South African citizenship wants to have such a marriage dissolved he can return to this country and he will be at liberty to enter into a second marriage in this country. That is the position and I do not want to find fault with it. In South Africa we do not regard the first marriage as a proper one.

Hon. members on the opposite side also spoke about numbers. I stated from the outset that as far as I was concerned, it was not a question of numbers, for me it was merely a case of implementing the principle to its logical conclusion. That is what we are doing in this measure. I am not replying to the hon. member for Houghton because as far as these matters are concerned, we differ so vastly from each other as regards our approach and views that we simply cannot find a common meeting ground. I have already told the hon. member previously: “East is East and West is West and never the twain shall meet.” That is precisely the case with us. I cannot reply to her points and the hon. member must simply accept it like that. I view matters of this kind in a different light to that in which the hon. member views them.

Seedat’s case is also a reply to the point raised by the hon. member for Transkei in connection with the California/Connecticut case, where it was stated that it was held to be against public policy. The reply is as I indicated earlier on. I do not know whether the hon. member was then present in the House. I explained that in Seedat’s case it was also stated that a polygamous marriage was against public policy, but that the Appeal Court nevertheless found that the children were legitimate. That is why the American case which was quoted is not relevant. In all these circumstances I feel that since this loophole has always existed in our legislation, since we are prohibiting miscegenation step for step, I do not hesitate for one moment to ask this House to expand the provisions so that South African citizens who are not domiciled here will also be affected.

Question put: That all the words after “That” stand part of the motion,

Upon which the House divided:

Tellers: P. S. van der Merwe and W. L. D. M. Venter.

Tellers: H. J. Bronkhorst and T. G. Hughes.

Question affirmed and amendment dropped.

Motion accordingly agreed to and Bill read a Second Time.

I move—

Agreed to.