Mr. Speaker, I move—

Mr. Speaker, I was rather hoping that by the time we had reached the Third Reading of the Abortion and Sterilization Bill it would have been possible for me to give some measure of support as a result of amendments having been accepted at the Committee Stage of this Bill. But, alas! I am afraid this is not the case. Not a single amendment which had anything to do with abortions was accepted by the hon. the Minister, although one amendment relating to sterilization was accepted. Nationalist members sat by quite stolidly refusing to accept any changes whatever in a Bill as important as this one, even if they secretly wanted to, as I suspect might well have been the case. Most of the United Party members, indeed nearly all of them, voted against even the special protection needed by young girls under the age of 16. We listened to a lot of pompous speeches in this House by a lot of men all implying that if a girl was old enough to fall pregnant she was old enough to rear a child even if she might be a girl aged 13, in Std. 4 or 5 and still wearing a gym. Certainly they all implied that she was old enough to take the consequences of her mistake. In addition there were, I regret to say, a number of distasteful jokes bandied around in this House on this subject. The dreadful predicament of the unmarried mother, young or old for that matter, was obviously quite unimportant to these men.

Secondly, despite the views of the Society of Psychiatrists, namely that it is utterly impractical to include the word “permanent” in the expression “permanent damage to the mental health of the mother” if a psychiatrist is ever to be able to make use of clause 3 in agreeing that an abortion should be done, and despite the obvious inadequacy of the number of psychiatrists in State employment, these objections to the Bill were also brushed aside. Furthermore, no allowance whatever has been made for emergency cases.

To sum this up, this Bill is as limiting as it possibly could be, short of forbidding all abortions whatsoever. In the framing of this Bill, absolutely no consideration has been given, it seems to me, to the evidence which was produced to the Select Committee and other evidence which we all know of, namely that women who do not want to continue with their pregnancies will, despite laws passed by men, procure abortions. It seems to me that in framing the draft Bill, the commission ignored the statistics which are available, namely that 2 000 cases of septic abortions are treated at Groote Schuur per year as a result of incomplete abortions, where women are brought in suffering from septicaemia. There are also the 7 000 cases per annum at Baragwanath where two special week-end wards are set aside to deal with septic abortions. There are also the thousands of cases which are handled at other hospitals in South Africa. None of these facts appear to merit any attention whatsoever.

I have no doubt that the back-street abortions will increase in South Africa as a result of this Bill and that there will be a subsequent increase in fatalities. Only the rich women will find a safe way. The poor, I am afraid, will go in for back-street abortions. I want to quote the words of Judge Hiemstra again about the effects of legislation which does not go far enough. He said—

Of course, I am not naive enough to believe that even if abortion on request had been allowed by this Bill, back-street abortions would disappear altogether. We know that is not the case, because there are always cases where women want to procure abortions in secrecy. Obviously this is so, but nevertheless it is a fallacy to believe that the number of illegal abortions will remain the same and I use the Lane Commission report as justification for the statement which I have made.

The Lane Commission says—

I quote from the findings of a committee that made an in-depth inquiry into conditions in England after some four years of the operation of the Abortions Act in England. All in all I want to sum up by saying that this Bill shows a remarkable lack of confidence in the medical profession because it is so hedged about with bureaucratic checks and counter-checks.

Much has been said during the course of the debate about the need for improving the socio-economic conditions of people and in this way reducing the number of girls who fall pregnant and the number of women who find themselves with unwanted pregnancies. Of course there is no doubt about it, socio-economic conditions are of enormous importance. But that is a longterm solution and what we were faced with in this House was the immediate problem of the pregnant woman. That needed an immediate solution and could not be left to a long-term solution. Much was also said in the earlier stages of this debate about the need for family planning. I agree wholeheartedly that it is highly desirable that we should increase our efforts in this respect. I was very glad indeed to receive and read the booklet which was compiled by the department. I also agree with those hon. members who said that abortion is not and never should be a substitute for contraception and for proper family planning. All that of course is quite obvious. I believe that a great deal of education is required in South Africa and certainly the educational opportunities for teaching women who are booked into hospital for abortions are not fully taken advantage of. The clinics that help women who find themselves in this condition ought also to be educating them on the whole question of contraception and of family planning. Education as far as family planning is concerned should be embarked on in a very generous fashion through the media of the Press, the radio and, when it finally arrives, television. As far as the Black population is concerned any attempt to put birth control across to them will never be successful as long as there are underlying indications of political motives. As long as that is the method …

You are fanning it.

I do not do anything of the kind. The hon. member must not deceive himself by thinking that Africans are so foolish as not to realize the implications of family planning for Blacks and family allowances for Whites. They see the significance of that as well; they are not quite as stupid as the hon. member for Caledon thinks they are. They do not need me to tell them. [Interjections.] Why are the hon. members getting so excited? Is it because they have guilty consciences, as well they might have? I am pointing out a known fact among social workers which is also a known fact among any people who have discussed this problem with Africans. They will just not have anything to do with family planning as long as they believe that there are political undertones.

You are making them suspicious.

I do not do anything of the kind but they tell me …

Order! The hon. member must become relevant.

Sir, with respect, we have discussed family planning throughout the debates on this Bill. Everybody in this House has pointed out the necessity for encouraging improved family planning and I simply wish to say that I fully agree with that. I have merely indicated the difficulties of doing so unless the Government alters its whole attitude towards the presentation of family planning among Blacks.

I wish to conclude as I have used all the arguments I wished to use during the debates on the earlier stages of this Bill. There is no point in attempting to reiterate those arguments because the opportunity of getting any amendments through this House has unfortunately passed. I moved an amendment at the Second Reading of this Bill because that is the parliamentary method of objecting to a Bill with which one may agree in part but which one feels does not go far enough. I say this for the benefit of hon. members who could not understand why I did it.

Nonsense!

I was unsuccessful … What is nonsense?

Do you want to restore the status quo?

I might say that as this Bill stands at the moment, the common law situation is easier in many cases and many doctors will tell the hon. member that. Anyway, I hope I do not have to instruct the hon. Chief Whip of the official Opposition on the use of a reasoned amendment in this House. He ought to be as well aware of it as I am. I was unsuccessful at the Committee Stage in getting any amendments accepted which would have broadened the scope of the Bill. Therefore I want to say that I have no option but to vote against the Third Reading. It is an ill-considered measure conceived by men only, as the result of the sterile thoughts of a commission consisting only of men.

Mr. Speaker, I do not want to repeat all the arguments which were raised at the Second Reading. As could be expected, the hon. member for Houghton once again intimated what she had already made very clear at the outset, viz. that she, regardless of any arguments, is opposed to this Bill.

†All she did now was to repeat all the arguments which we have been dealing with all along, very adequately I may say. She has been repeating them monotonously and I am not going to take the trouble to discuss these arguments again.

Don’t bother.

I just want to make a few remarks in order to terminate the protracted birth pangs of this Bill. I said at the outset that no Bill was perfect. This is the first time that we have introduced legislation of this sort. With this we have given shape to a state of affairs about which we never had certainty in the past. We spoke of the common law aspects, but medical practitioners as well as the public never knew precisely where they stood. If they know any better today where they stand, this legislation has already achieved something. Ours is a developing community, and we shall learn from this legislation. Indeed, this legislation and the way in which it has been framed, already testify to the fact that we have learnt from the mistakes which have been made in other countries with legislation of this nature. Changing needs in our country may lead to changes being introduced into this legislation. I have committed myself to keeping an open mind as far as that is concerned.

I just want to say that everyone had the opportunity to give evidence, and here I want to remind the hon. member that it was not only men who gave evidence. From what the commission learnt, it is evident that the public of South Africa is totally opposed to abortion on demand. We can now accept that this is so, and this Bill is an expression of that public opinion. I have already said, and I just want to repeat, that now for the first time, as far as legal abortion is concerned, the medical practitioner is in a very much more protected position than he has been in the past. In given circumstances he may procure an abortion without fear of prosecution. A member of the public who is entitled to ask for an abortion and to get one, may also have that abortion procured without fear of prosecution, i.e. on medical or psychological grounds. That in itself has brought us quite a bit further. I also want to mention—and it follows from what I have already said— that the watering down of similar legislation elsewhere in the world has led to the emergence of abortion on demand and has given rise to many abuses. In South Africa public opinion has built up a resistance to the whole idea of abortion. As far as the representations made in respect of a Bill are concerned, I have seldom come across such absolutely contradictory opinions from the public. On the one hand there was the absolute belief in free abortion on demand because the woman was allegedly the mistress of her own body, even from her 14th year; on the other hand there was a total opposition to it. We had to reconcile these two virtually irreconcilable standpoints to some extent in this Bill. I am convinced that there will be the necessary control because the Department of Health will exercise that control. As far as the implementation of this Bill is concerned, I am also convinced that we may have every confidence in the integrity of our medical practitioners.

Finally I just want to say that this is a very emotionally charged matter. I have mentioned the divergent opinions and should like to emphasize once again that we should relate family planning to the question of abortion only in the sense that the one has nothing to do with the other as far as population control is concerned. I am glad that we at least received a word of appreciation from the hon. member for Houghton towards the end of the debate, for what we are doing in connection with family planning.

Abortion is a therapeutical deed, therapeutical because it must follow something which is unavoidable or because it has to be done on grounds of medical or mental health. Family planning is a preventive action to which one and all of us are fully justified in giving our fullest support on socio-economic and health grounds. We must have great clarity about this difference.

I should like to thank all hon. members very sincerely for their contributions to this debate. There was a wide discussion and a responsible discussion, although here and there there was perhaps a degree of irresponsibility. So much for that. I think that this has been one of the best debates which has yet been conducted in this House on health matters in the last number of years, and for that I wish to express my thanks towards one and all.

Question put: That the Bill be now read a Third Time:

Upon which the House divided.

As fewer than fifteen members (viz. Dr. A. L. Boraine, Messrs. D. J. Dalling, R. M. de Villiers, C. W. Eglin, R. J. Lorimer, H. H. Schwarz, Dr. F. van Z. Slabbert, Mrs. H. Suzman and Messrs. H. E. J. van Rensburg, and G. H. Waddell) appeared on one side.

Question declared agreed to.

Bill read a Third Time.

Mr. Chairman, I would like to move the following amendment, which is not on the Order Paper, but of which I gather the hon. the Minister has received a copy—

This clause amounts in effect to an overriding prohibition of transfers which will result in either the creation of additional or the proliferation of undivided shares in mineral rights. This particular clause does not, of course, intrude upon the creation or proliferation of undivided shares in land or in other rights thereto. Subclause (3) provides—

The right given to the Minister is merely permissive; it is not exhaustive. We would certainly have found it much easier to support the Minister if in fact the grounds set out here had been the particular grounds on which he could refuse such subdivision or proliferation of mining rights, but this subclause is not exhaustive in that sense. The two key words are “may” in lines 18 and 21, and that is why we have proposed this amendment. The right to enter into business in partnership, or the right of an individual, if he owns 100% of the mineral rights, to dispose of such mineral rights in the way in which he sees fit by subdividing such rights between children or by disposing of them to other parties, is surely a fundamental and indeed extremely old mode of conducting business in this country. The arguments on this subsection (3) also applies to clause 3 which we will come to in the further discussion. It is really because of this interference with the right of an individual, if he is in ownership of 100% of the mineral rights, that the restrictions which are going to be placed upon his future actions in terms of this event will become effective. People may well have come into possession of 100% of the mineral rights on a basis which is now going to be prejudiced by the passing of this particular clause and this particular piece of legislation, and therefore we propose an amendment to this clause as I have already stated.

Mr. Chairman, the hon. member was kind enough to submit this amendment to us this morning. We had a good look at it and also discussed it with the law advisers. It does not really seem as if there is a difference in principle between this side of the House and those hon. members in connection with this matter. The law advisers tell me that there is no real difference between the wording as proposed by the hon. member now and the wording as contained in the Bill in clause 2(3), and for that reason I do not really feel myself inclined to accept this amendment moved by the hon. member. The law advisers, who had a good look at this legislation and who insist that this is legally quite a technical Bill, pointed out to me that if we were to accept the amendment of the hon. member for Johannesburg North—which only states the whole issue positively, in the affirmative, while the present wording of the Bill states it negatively, i.e. that the Minister may, after consideration of an application, refuse such application—it could disturb the entire Bill, which, legally, is a very technical one, and, secondly, would without any doubt bring about consequential amendments, not only to clause 3, but most likely to other clauses as well. Therefore, in the light of all these facts, I hope the hon. member will not take it amiss of me when I say to him in all kindness that I do not think it would be advantageous to accept this amendment moved by the hon. members.

Finally, Mr. Chairman, I would like to give the hon. member and the House the assurance that it is not the intention of this Bill to affect the rights of people. The Bill only seeks to deal with a real problem we are faced with. This problem is that there are people who have a very small fraction, up to a millionth, of a mineral right and that, under certain circumstances, the possibility exists that a further fragmentation could take place of mineral rights which are divorced from the land. Hon. members must appreciate that this Bill is not applicable to mineral rights which are not divorced from the land. It is only applicable to those rights which are divorced from the land. If the mineral rights are vested in the owner of the land, this legislation is not applicable at all. Our intention with this Bill—and there should not be no doubt whatsoever about this, is to have the legal authority to act in regard to those cases where it involves people who have a very small fraction of a mineral right, a right which is divorced from the land. Hence this restriction contained in clause 2. Therefore, on the sound advice of the law advisers, we are of the opinion that the present wording should be retained. Subsection (3) reads as follows—

I want to give the assurance that the department, as well as the State Mining Engineer, as well as the Minister will apply this right granted in terms of this subsection, with the utmost discretion. I want to repeat that it is the intention of this Bill to apply these provisions only to deal with this problem we are faced with and which I have referred to. Therefore, I do not think there is any need for the hon. member to feel concerned about the wording of this subsection. I promise once again to give due consideration to this matter. If anybody is able to convince me, after we have had this discussion, that the wording proposed by the hon. member is in fact an improvement on the present wording, I would be prepared to consider that new wording in the Senate and to accept an amendment to that effect there. But, with all the information at my disposal, I must honestly say I do not think it will be an improvement. I therefore want to content myself with the present wording. I hope the hon. members will accept this.

Mr. Chairman, we can recognize the need for some sort of legislation to try to untangle the difficult situation that exists at the present time with regard to the fragmentation of mineral rights. We realize that the hon. the Minister has a great problem on his hands and we are very sympathetic, but we believe that, in the solution which he has produced, he has gone too far in his intrusion into the rights of the individual to get the best advantage possible from his ownership of mineral rights. We obviously accept the assurances of the hon. the Minister that he will approach any action in respect of this measure with great circumspection but, with every respect to the hon. the Minister, he may not be forever in the position in which he is at the moment. We believe that this sort of thing should not be written into the law. The intention is certainly expressed, and we accept this, but this clause intrudes into the right of individuals to deal in partnership with others as co-owners. Surely, Mr. Chairman, joint ownership and the right to enter into business with others is a normal and very time-honoured way of doing business. I would point out that the intention of this provision could very easily be circumvented by the inter-position of a company which normally holds mineral rights. The co owners could then proliferate as shareholders. There is therefore this obvious method of circumvention of this provision as it is at present phrased. I should like to support the amendment moved by the hon. member for Johannesburg North in that it stipulates that the Minister “shall” approve any such application unless he is satisfied that such division may materially hamper the acquisition of prospecting or mineral rights. In other words, the Minister can still do this, but it is mandatory upon him to allow such proliferation. The hon. the Minister says that the whole meaning of this Bill is not to take rights away from people. Again we accept this, but the Minister has to find a balance here and we believe that he has gone too far in the other direction.

Amendment negatived (Progressive Party dissenting).

Clause agreed to.

Clause 3:

Mr. Chairman, we listened with great sympathy to the hon. the Minister’s assurances, but this clause constitutes, at the least, a very substantial intrusion upon the rights of an individual as enjoyed prior to the passing of this legislation. If I were the 100% owner of certain mineral rights, in terms of this Bill I will not be allowed to dispose of that in my will as it suits me. For example, in terms of this clause I will not be allowed to leave less than 100% of those mineral rights in the sense that I cannot split them equally between two children or in thirds if I have three children. There is, of course, the provision that I could do so, but then I have to rely on the fact that those three children will reach agreement. If they do not, my executors, in terms of this clause, must realize the relevant mineral rights. My worry about this clause is that even if you accept that it is unreasonable that one cannot leave less than 100% except in circumstances where your children can reach agreement—that is something we in these benches cannot accept—we then come to the question of time, and this is not covered by this clause at all. The executor is simply told that he must realize those mineral rights at, presumably, the best price he can get for them. Obviously, if I was an executor in that position I would be concerned as to the time. If somebody was to find copper, tin, silver, platinum or any other precious metal except gold on an adjoining farm or on a farm one removed from mine, that would clearly affect the value of my mineral rights. Also, if at the time of my death my executor has to look at the mineral rights and there were known traces of, for example, copper, either on the adjoining farm or two farms away, the value of those mineral rights will again be affected by the price of copper at the time.

I therefore cannot accept this clause for two reasons. Firstly, it intrudes upon the rights of an individual in possession of 100% or of an undivided share of mineral rights in that it prohibits him from leaving it in his will as he wished. Secondly, we on this side of the House are concerned about the fact that if we cannot get this provision amended, there will be no element of discretion in the timing given to the executor, who is under a fiduciary responsibility to the deceased to do the best possible deal he can on behalf of the beneficiaries. For these reasons we cannot accept this clause.

Mr. Chairman, the hon. member for Johannesburg North is upset about two questions arising from clause 3. The clause at issue deals with a testamentary disposition or an intestate succession. The position in such cases is easily resolved, if the hon. member happens to be worried about the bequeathal of mineral rights. One’s heir is free to register a company which is purely a holding company for the mineral rights without there being any obligation to realize the mineral rights—the time aspect—this implies automatically that there is no obligation on the executor to realize the mineral rights. Concern about the value of the mineral rights thus falls away as well. The alternative is that a mutual agreement can be entered into between heirs to register the shares in one of the children’s names on the understanding that the other children will be equal shareholders. The intention is not to deprive people of their mineral rights. It is in fact possible to retain those mineral rights. With all due respect to the hon. member, I maintain that this clause in its present form should present no real problems.

Mr. Chairman, I must also say that I honestly cannot understand the hon. member for Johannesburg North’s objections at all. In any case, I cannot agree with them. I really think that the hon. member for Johannesburg North, if he will allow me to say so, does not understand this clause very well. I want to point out again that the Chamber of Mines, with whom this matter was discussed in great detail, and their legal advisers all agreed about these clauses which are now being discussed. This also applies to the people from the Agricultural Union with their attorneys and advocates. I now want to state a few facts to the hon. member in connection with clause 3, in the hope that this will satisfy him.

†Exactly similar provisions occur in section 5 of the Subdivision of Agricultural Land Act (Act No. 70 of 1970). That is the first point, and this point has been argued at length inside and outside this House before that Bill was passed here.

*Secondly I want to give this House the assurance that the case which the hon. member has mentioned will not be dealt with by us under this legislation at all. If someone died in 1910, that is very many years ago, and died intestate without cession having been obtained, that case will be dealt with under this legislation. This legislation covers only cases of that nature. There is another Act, the Mining Rights Act, which we can apply in the case of division between four and five people. Here, just as in clause 2, which I have already explained, we are only dealing with cases of people who died very many years ago, who died intestate and did not obtain cession.

The third point which I want to emphasize here is that when one is dealing with subdivided mineral rights of very little value, the whole process of prospecting and leasing mines is greatly delayed and often made completely impossible. I want to emphasize that bodies can arrange to float a company and then to take cession. Once they have floated the company, they will have set right the whole position regarding mineral rights, and that is precisely what we want. Then they can arrange amongst themselves that each one in the company gets his fair share, no matter how small this is. Therefore, against the background of these three important facts in connection with clause 3, I must honestly say that I cannot agree with the hon. member. Consequently I think that clause 3 is well thought out as it stands and that hon. members may accept it without any qualms.

Mr. Chairman, if I have gathered it correctly the hon. the Minister said that it was not his intention to deal with current wills or with the father who in the future might leave mineral rights to one or more children in undivided shares. If this is so, surely the Bill must be amended because as this clause stands it would give him the authority to act in such cases. Certainly the words “if compliance with any testamentary disposition do involve any will which may be made in future. It does not only deal with people who have died intestate which will require the unravelling of a past situation. The Bill as it stands contradicts the hon. the Minister’s statement. He seeks power to deal with wills which can be made now or at some stage in the future, but he argues to the House that it is not his intention to use that power but only to unravel past situations which may be forced upon him. In these circumstances he should amend this clause and make it quite clear that it only deals with the past situation and that he has or seeks no power in terms of the law in the case which the hon. member for Johannesburg North has drawn to his attention, viz. that of a parent, a father, who leaves mineral rights in undivided portions to his children in the future.

Mr. Chairman, it is very difficult to draw a line, but I can assure hon. members that the intention is only to deal with those very old and established estates and not with the new ones. I can do very little more than that. I have discussed this matter with the legal advisers. If I say that we are not going to deal with that sort of position where you have estates two, three, four or five years old—it is very difficult to stipulate where to draw the line. Therefore the legal advisers have advised us that it is better to have the wording in clause 3 as it stands at the moment and to state clearly what the intention of the law-maker is and then to act in terms of the policy and the stated intentions of the law-maker, because it is so difficult to draw a line. I say again that it is not the intention that it should affect estates of two or three years ago, but only where this position has been prevailing for many years and where these problems have cropped up.

Clause agreed to.

Clause 4:

Mr. Chairman, in giving this Bill my strong support I should like to say at the outset that I associate myself with other hon. members who have already given it, and more specifically this clause, their support. This clause will do much to solve the practical problems which are being experienced in dealing with mineral rights which have become fragmented over the years and in facilitating the task of the department as well as the task of the legal practitioner in this regard. In connection with this clause I want to ask, from the legal practitioner’s point of view, whether the hon. the Minister will not be prepared to give consideration to a few slight adaptions in the Other Place. In this connection I want to refer to subsection (l)(a)(ii). It deals with the question of intestate or testamentary succession. In terms of clause 4 a prospective prospector may be entitled to appeal to the Minister if the cession of mineral rights has not been acquired by the heirs, in other words, if it is not registered in the Deeds Office. In this connection I should like to ask whether the hon. the Minister will not consider inserting a fixed period of time from the date of death so as to give the executor of such an estate a fair and reasonable chance to dispose of the cession. From my own experience I should say that a period of between 12 and 18 months would be reasonable for a legal practitioner, or whoever is charged with the administration of the estate, to be able to dispose of such a cession. In respect of subsection (l)(a)(iii) I should like to request that consideration be given to the insertion of “unreasonably” after the word “refuses”. The idea which I want to express here is that if we were to operate on the basis of the concept “refuse unreasonably”, it would give expression more clearly to the intention of the hon. the Minister as stated repeatedly by him during the discussion of this Bill up to now. The provision as it stands at the moment, does not cover the discretion of the owner, i.e. whether he is reasonable or unreasonable in his refusal to negotiate with a specific prospector. The argument may be advanced that the simple fact that someone refuses to negotiate is unreasonable in itself. In this connection it is my considered opinion that circumstances are nonetheless conceivable in which a person may reasonably refuse to negotiate with a specific prospector. He may have good reasons for not wanting to enter into a contractual relationship with a specific prospector. Against this background, I should like to ask whether the hon. the Minister will be prepared to give consideration in the Other Place to effecting a few of these amendments, as I have indicated them.

Mr. Chairman, I am sorry to say that we do not find this clause acceptable either. It may create a practice which is in fact unprecedented in the field of private ownership, at least in this country and at this point in time. It gives to an intending prospector the right to approach the hon. the Minister in a situation where the prospecting rights may be held to the extent of 100%. if our understanding of the clause is correct, by a number of other parties, the only exception being when one of the parties owns 50% of those rights. Consequently, in the case where 100% of the prospecting rights, as we understand it, are held by three parties in the ratio 40: 40: 20, the intending prospector still has the right to approach the Minister and seek permission to enter that area for the purpose of prospecting. It is true that there are some caveats put into this clause in terms of subsection (l)(a). We have no problems with subsection (l)(a)(i) and (ii). However, we have a very serious problem with regard to subsection (l)(a)(iii). Surely in circumstances where two, three or four people own 100% of the prospecting rights, they must have the right to refuse to deal with any particular mining or prospecting company which approaches them with the request to be allowed on certain terms and conditions to go prospecting over the ground to which they hold the rights. Certainly it has never been the practice so far that, if three people own 100% of the prospecting rights and they are approached by a mining or prospecting company, they have to justify why they do not wish to deal with the company concerned. We of course appreciate the advantages to South Africa of developing the mineral wealth of this country to the fullest extent possible but that people who hold 100% of the prospecting rights should have to justify to the Minister why they do not want to deal with a particular person or company, is to our minds intolerable.

We also have a problem with regard to subsection (l)(a)(iv). I would like to ask the hon. the Minister to tell me who is going to judge whether “unreasonable terms or conditions are demanded by any holder of any such share”. Presumably it will fall under the responsibility of the hon. the Minister, but what are “reasonable terms or conditions” when it comes to prospecting? If I may say so, the experience has not been that these are easy to establish or that it is easy to form an objective judgment in this case.

Our last point of concern in regard to this clause is 4(l)(b) in the sense that having set out the particular grounds on which the hon. the Minister is prepared to permit some other party to enter upon land the majority of the prospecting rights in regard to which or, indeed, the total prospecting rights in regard to which may be held by other parties, having set out the particular grounds for so doing, two of which we would not find unreasonable, we cannot understand why the hon. the Minister has found it necessary to include the provisions contained in 4(1 )(b).

For these reasons we cannot support this clause.

Mr. Chairman, I want to start by replying to the hon. member for Vereeniging. We really do not regard it as necessary to effect the two amendments proposed by the hon. member, as I have already explained that it is not the intention to have the legislation operate as the hon. member has stated here. However, I am quite prepared, once I have had time to discuss the matter properly with the law advisers to insert in clause 4(l)(a)(ii)—

I shall consider it and if we come to the conclusion that it will be wise to effect such an amendment in order to put the intention of the legislation above all doubt, I shall do it. However, I want to state clearly that this is a technical piece of legislation and if the law advisers convince us that the legislation makes that intention clear in any event and do not consider the insertion of those words necessary, I shall consider myself bound to argue in the same vein in the Other Place as well and not to amend that particular provision in that way. If it appears to be otherwise, however. I am quite prepared to amend it.

As far as clause 4(l)(a)(iii) is concerned, we do not consider it necessary to effect an amendment here either, because 4(l)(a) already states explicitly—

The words “nie redelik” do appear there and if we were to insert in clause 4(1) (a)(iii)—

it seems to me we would only be repeating that there must not be unreasonable refusal. In spite of the fact that we are convinced that the intention of the legislation is already clear as it is set out in clause 4(l)(a)(iii), I shall discuss the matter with the law advisers and if we come to the conclusion that we should do well to insert the word “onredelik”, I shall have no objection to doing so in order to put the matter beyond any doubt. Therefore I gladly give these two assurances.

The hon. member for Johannesburg North, if I understood him correctly, objected to the provisions of clause 4(l)(a)(iv) in particular—

The hon. member asked who was going to be the judge of that and how they would set about it. The answer is that a specific company will have to make out a well-founded case in writing to the department and will have to convince the department that they are experiencing problems and that they cannot obtain prospecting rights because they cannot obtain those mineral rights. Only if they have convinced the department of this in writing, will the Government Mining Engineer, together with the other departmental officials, conduct a thorough investigation into the matter. Only when they have satisfied themselves that the case made out by the company is well-founded, will they come to the Minister with a recommendation and then the Minister can consider the whole matter—the facts of the company which have been brought to the Minister’s attention and the investigation by the Government Mining Engineer and the department officials concerned in the matter. Only then will he be able to determine whether there has been unreasonable refusal or terms or conditions in connection with this matter. I must honestly say that I, who work with these matters, foresee little or no problems in this regard because I have experience of the thoroughness with which the Government Mining Engineer and his division and the department set about these things, of which they have many years of experience. I want to point out that, this after all, is the oldest department in the country. My experience is also that mining companies do not come to the department with unnecessary requests, because they know that these matters are investigated very thoroughly and that the Minister will be asked to act only after such a thorough investigation has been made. Therefore, I do not think the hon. member needs to lose any sleep about the provisions of clause 4(l)(a)(iii). As far as paragraph (b) is concerned. I want to repeat that the Act is being amended here with the intention of overcoming problems and for no other purpose. I refer here to problems which retard mining development in South Africa because of the facts which I mentioned earlier. This paragraph is being inserted simply to ensure that we cover the whole matter properly; hence the addition of the words “cannot readily be acquired for any other reason which the Minister deems adequate”. In this regard I think we are on firm ground because the sole intention is to deal with problems and, for the rest, to leave the whole matter alone. I hope that the hon. member is satisfied with this explanation.

Mr. Chairman, I rise just on a minor point. It is a question of the English translation of the Afrikaans, or vice versa, in clause 4(l)(a)(ii). The English version, in line 48, reads, “did not obtain cession thereof”. I think it should read “has not obtained cession thereof”, because the Afrikaans version reads, “nie sessie daarvan verkry het nie”. The words in the English version do not make sense.

Mr. Chairman, the hon. the Minister has not dealt with the point made by the hon. member for Johannesburg North in relation to the latter part of the clause, which provides that the Minister cannot give these prospecting rights where any one owner owns more than 50% of the prospecting rights. This is a limitation placed on the Minister. But what happens if two people together own more than 50%? Two people might each own 30%, making up 60%. Can he then force a minority party on these two people acting together? Two or more people may own 100% of the prospecting rights and the Minister, regardless of the fact that they own the total prospecting rights for that area, can force somebody else on them because no one of them owns more than 50% of the prospecting rights.

*Then I want to refer to the point which was made by the hon. member for Vereeniging in connection with clause 4(l)(a) (iii). The hon. member wanted to include the word “unreasonable”. The hon. the Minister said that it was not necessary as it was provided at the commencement of the clause that there was to be no unreasonableness in this regard. But, Sir, the word which is used there is not “onredelik”; the words which are used are “nie geredelik verkry kan word nie”, and there is a difference between “redelik” and “geredelik”. In the English version the word “readily” is used, not “unreasonable”. The hon. the Minister cannot say that the word “geredelik” means the same as “redelik”. The explanation which the hon. the Minister gave is not in any way an answer to the good case been made out by the hon. member for Vereeniging. I want to ask the hon. the Minister to consider that clause once more. Will he read it carefully once again so as to make sure that there will be no unreasonable withholding of these rights? Is there any reasonable reason why he cannot accept the amendment suggested by the hon. member?

At the moment clause 4(l)(a)(iii) reads—

That is how (iii) reads at present but according to the law advisers there is no doubt about the intention, because paragraph (a) begins with the words “nie redelik verkry kan word nie weens die feit dat …” and then paragraph (iii) follows (i) and (ii).

Business interrupted in accordance with Standing Order No. 30 (2).

House Resumed:

Progress reported and leave granted to sit again.

The House proceeded to the consideration of private members’ business.

Mr. Speaker, I wish to move the motion printed in my name on the Order Paper as follows—

1. (a) to take immediate steps to remove the remaining legal disabilities of South African women; and
2. (b) to recommend to the State President that he appoint a commission of inquiry to examine the special disabilities affecting African women, with a view to eliminating them as soon as possible.

Mr. Speaker, I think it is particularly fitting that a motion designed to ask Parliament to remove the remaining legal disabilities of women should be discussed in this House this year, which is International Women’s Year. [Interjection.] It is not of course the first time that this subject has been discussed in this House. Indeed, I had the honour to make my maiden speech on this subject in 1953, when the Matrimonial Affairs Bill was under discussion. That Bill, although it was a Government measure introduced by the then Minister of Justice, was, I think everybody conceded, the fruit of many years of hard work, stubborn lobbying and the remarkable persistence of the late Bertha Solomon, the then member for Jeppe. The passage of the Matrimonial Affairs Bill was her triumph, and to this day the Act is referred to as “Bertha’s Bill”. I should like to pay tribute to her for what she achieved by way of women’s rights in South Africa. Bertha’s Bill went a long way towards removing the disabilities, the more flagrant legal disabilities, suffered by women in South Africa, particularly of those married in community of property and of profit and loss, which is the position under common law unless an antenuptial contract is entered into. But the Bill did not go all the way to removing the disabilities, which is not surprising in a House dominated by men. In 1966 there were some further improvements introduced, and in 1968, when a private member’s Bill was introduced by the then hon. member for Wynberg, Mrs. Catherine Taylor, the Bill was rejected; it was in fact “talked out”. Since then various women’s organizations have kept up the pressure in order to try to have the remaining disabilities removed, and this year, I may tell the hon. the Minister if he does not already know it, concerted action is planned by many women’s organizations, as exemplified by the numerous seminars which have been held at universities on this subject, by numerous memoranda which have been prepared, such as the one recently prepared by the S.A. Federation of Business and Professional Women and by other memoranda which have been prepared by Women in Action, a newly setup body, and also by the University Women’s Association and by the National Council of Women. Concerted action is planned. Sir. It is my hope that by discussing this motion today we will in some way contribute to the weight of argument which has been advanced in favour of positive action for the removal of the remaining legal disabilities of women. More particularly, I hope that the motion today will draw attention to the plight of African women in South Africa, a subject which in fact has never been dealt with fully in this House, although I have mentioned it in the past on many occasions under the Bantu Administration Vote.

I want very briefly to underline the position of White, Coloured and Asian women in South Africa, because the White, Coloured and Asian woman enjoys the same legal rights as a man if she is sane, solvent, over the age of 21 years or is a spinster, a widow or a divorcee. Sir, to use A. P. Herbert’s term, she has had it should she enter into holy deadlock, the words “holy deadlock” being A. P. Herbert’s term, unless she enters into an antenuptial contract, for she is then classified with minors and with lunatics. She is completely under the authority of her husband. Community of property and of profit and loss certainly bring benefits to the wife when her husband dies, because then as of right she takes possession of half the estate, but whilst her husband is alive, unless she has divorced him and he is the guilty party, he has sole and unfettered powers to administer their joint estate. Bertha’s Bill introduced protection of the woman’s earnings from the predatory intentions of her husband. But he can still take possession of what she may have bought with the money unless she gets an interdict. He does not have to render any account of the maladministration of the joint accounts. He can, in fact, squander the lot and his creditors may claim against the joint account and, indeed, even on her earnings, excepting in the case of bills for liquor, something which was, again, introduced by Bertha’s Bill.

I want also to refer to the marital powers exercised by a husband over his wife’s person. This applies whether they are married in or out of community of property unless the marital power has been excluded when they are married out of community of property. That power has been likened by Prof. Hallo, a one-time professor of law at the University of the Witwatersrand, to that of a guardian over a minor, but he points out that whereas guardianship is solely for the minor’s benefit, the husband’s power is for the benefit of himself. The most serious disability of a marriage in community of property is, of course, the wife’s lack of contractual capacity. I give only a few examples. For instance, she cannot enter into any contract without the assistance …

Are you still referring to White people?

I am still busy with Whites, but this applies to some extent of course to Black women as well. As I was saying she cannot enter into contracts without the assistance of her husband except when purchasing the household necessities or in connection with the business, trade or profession which she is carrying on. Without the assistance of her husband she cannot enter into a hire purchase agreement, buy or sell shares even with her own income. She may also not sign a contract of employment. Unless the property falls into the category of separate property, she can not even have it registered in her own name. These limitations on the contractual capacity of a woman married in community of property, together with the requirement that a woman married out of community of property constantly has to produce an antenuptial contract at banks, stockbrokers’ offices, etc., are, I maintain, utterly outdated in this, the last quarter of the 20th century. I would like to point out that the entire economic status of women has changed materially, has undergone a profound change the beginning of World War II. This change has greatly been accentuated in the 21 years since Bertha’s Bill was passed. According to the 1970 census women constitute nearly a quarter of the employed population. More and more women …

Are you building a monument for yourself?

Oh, do not be silly. Pipe down! More and more women are moving out of their traditional domestic roles and enter commerce, industry and the professions. Many more, I might say, would do so if the much-needed changes in taxation were introduced so as to allow married working women to enjoy to the full the fruits of their labour by being taxed separately. The retired Minister of Finance has suggested that he was going to look into such changes. I very much hope that the present Minister of Finance will carry on the good work because this will certainly be to the benefit of South Africa’s gross national product in the long run even if it is not to the immediate and direct benefit of the fiscus. Thousands of women are working are in highly responsible jobs requiring expert knowledge and keen judgment and the making of far-reaching decisions. It is ludicrous to continue to treat these women, if married in community of property, as if they are minors incapable of running their own affairs. I do know that the Business and Professional Women’s Federation has submitted a memorandum to the Law Commission suggesting many of the reforms which I have mentioned. That was prepared by Mrs. Taylor and was based largely on the argument she used when she introduced her private members Bill in 1968. I want to give that my full support. I hope very much that the draft legislation encompassing amendments will be recommended by the Law Commission and that the hon. the Minister will have the honour of introducing them into this House. He will be delighted to hear that he will then, under very unusual circumstances, be getting my full support in this respect.

You could not bring yourself to do that.

Oh yes, in this case I can promise the hon. the Minister—I will do so most willingly.

There is no time to go into any detail about the other glaring anomalies in our present law that bear hard against women. I want to mention only in passing the need for a change in the law as far as joint guardianship of minor children is concerned. It is called “joint” but it is manifestly unequal. I think there should be some protection included in the law to see that the surviving spouse in a marriage out of community of property cannot be entirely disinherited by the spouse who dies.

There is no time to dwell on the completely indefensible discrimination against women as far as equal pay for equal work is concerned. Although the pronounced policy of the Government is to equalize pay in the civil service, we have a very long way to go before this policy is translated into reality. In fact, I think it can be fairly said that the public sector which should be giving a lead in removing discrimination between the sexes, is actually promoting it. An example of this is the policy of the Public Service Commission in relation to their bursary scheme whereby in terms of Notice 497 of 1974 it was stated that bursaries were open to male candidates only, in numerous fields of study. These included general administration, financial administration, personnel management, communication, librarianship, meteorology, pharmacology programming, pure science, psychology and clinical psychology. In social work, which is almost purely a prerogative of women, bursaries are available in the fourth year only to female candidates. I think this is a disgrace. The public sector which ought to be setting the lead in removing discrimination between the sexes is actually promoting it. Then there is the provision in the Public Service Act which requires women who marry to resign. That too is promoting discrimination. Perhaps the most important example of where the State is giving the wrong sort of lead are the discriminatory wage determinations made by the statutory Wage Board. These are very often made on a sex basis, ignoring the fact that thousands of women are the breadwinners and sole support of their families. That is usually the excuse made for the discrimination in pay. There are today thousands of Black women, more particularly in the unskilled occupations, who are the sole support of their families. Again, as I say, the State which should be giving the lead in this respect is doing exactly the opposite and is encouraging discrimination.

I want to turn now to the issue of African women and their special disabilities. Years ago the hon. the Minister of Bantu Administration and Development, when he was still a Deputy Minister, told this House that he was going to appoint a departmental committee of inquiry to go into this matter. A few years later I asked the Deputy Minister what had happened to the inquiry and what its recommendations were. I was then told that the whole matter had been dropped. I want to propose that a full scale independent commission of inquiry be appointed with all the usual powers of taking evidence, calling for papers, etc., to make recommendations to alleviate the really overwhelming disabilities of African women. I want to outline briefly the legal position of African women. Unless any statutory provision otherwise provides, African women have full legal capacity under the common law. This is only if they are unmarried and over the age of 21, if they are widows or divorcees or if they are married by civil or Christian rites and the husband’s marital power has been excluded. In Natal, however, African women fall under the archaic Natal Code of Bantu law which lays down, inter alia, that unless she has been emancipated, a Bantu female is deemed a perpetual minor in law. She is always under the guardianship of a man, either her father, or the kraal head if her father should die or become incapacitated, if she is unmarried. If she is married her husband becomes her guardian. If she divorces, guardianship reverts to her father or her kraal head. If she becomes widowed, the guardian becomes the head of her husband’s kraal, or maybe the eldest son.

Isn’t this a matter for the homeland governments.

It is not a matter for the homeland governments because this House has legislated in this regard, let me tell the hon. member. This House actually extended that archaic law three years ago. In 1972, believe it or not, for inexplicable reasons, instead of attempting to remove the Natal Code of Bantu law, this House actually extended it. It extended it to African women in the Transvaal, laying down that they may not get married without the consent of their guardians. Thousands upon thousands of these women living in urban areas, of age, completely removed from the homelands, have got to obtain permission if they wish to marry. It is absurd! This is therefore not a matter for the homeland Governments. This House does not hesitate to interfere in a million different ways with the homeland Governments. It is interfering all the time. It is removing Black spots and resettling people in the homelands without discussing the matter with homeland leaders, but where there is something that might be to the advantage of Black people, the Government draws back and says very piously: “Oh no, we do not want to interfere with the homeland leaders.”

Oh, nonsense!

Is it nonsense? No, it is sophistry on the part of the hon. member. He knows that perfectly well.

Order! The hon. member does not have much time and hon. members must therefore not interrupt her.

Thank you, Sir. The whole legal position of African women is ambiguous to a degree, and this is especially so in regard to marriage, the conflicting rights under customary union, and civil marriages, inheritance, etc. I should have mentioned, before I was interrupted, that a woman in Natal can become emancipated, but not if she is married. She may only apply for emancipation if she is unmarried. It is not an easy procedure, but she can do so. I should now like to give a few examples of ambiguities. Nowhere is the registration of customary unions, which are recognized as unions in this country, compulsory. [Interjection.] No, it is not compulsory. There are provisions made under which registration can take place, but it is not compulsory. There are also provisions in the Transkei for registration to take place, and regulations have been framed making this possible elsewhere, but nowhere, to the best of my knowledge, is this in fact compulsory. I think it should be made compulsory everywhere in order to protect the position of the customary union wife, a position which often becomes extremely insecure should the husband then marry by civil or religious rites, as he can do. That is one thing I think we ought to consider very seriously. The position of Africans as far as civil and Christian marriages are concerned is exactly the reverse of that of non-Africans, i.e. Coloureds, Whites and Asians. Unless the couple enters into a contract of community of property and of profit and loss before marriage, or within a month thereafter, the marriage is out of community of property. The African woman does not even enjoy the one advantage in community, whilst she suffers all the other disadvantages, i.e. that she is entitled to a half-share of the estate if her husband should die. If the husband dies intestate, a White woman in a community of property marriage, would be entitled to a half-share of the estate plus a child’s share, or R10 000, whichever is the greater. Nor, where the husband dies intestate and the marriage is out of community of property, does she get what other women would get, that is, she does not get a child’s share or R10 000, whichever is the greater, or if there are no children, half the estate. That is what a woman normally inherits out of community of property if the husband dies intestate. The African woman finds that the husband’s estate is distributed according to tribal law if he dies intestate. She cannot succeed to any part of his estate. Under tribal law the property passes to the eldest son, and failing a son, to the senior male relative of the husband. Of course, the man who inherits the estate is also supposed to inherit the responsibility of looking after the deceased man’s wife and family, but in reality the situation is often very different, particularly in the urban areas. Very often the heir is completely unknown. He arrives in Soweto from KwaZulu, say, claims the estate and then walks off with the furniture and other belongings to which the wife may have contributed quite materially during the lifetime of the husband. The situation is therefore a very bad one.

Tell us about it.

Order!

Look, I really have no time. If I have time I shall answer a question afterwards. The situation is also very confused as far as the guardianship and custody of minor children is concerned. It is complicated by a conflict between the common law and Bantu Law. Unlike the law which generally applies, where the courts award guardianship and custody in accordance with the child’s best interests—another good amendment which the Bertha Solomon Bill managed to introduce—the award which is made in the special Bantu divorce courts is influenced by the whole question of property rights in the children, i.e. rights to lobolo under Bantu law. Again, the woman who is married by customary union has a very difficult time in obtaining custody.

Up to now I have confined myself to the incredibly complicated legal position of African women which has resulted from what Dr. Ellen Hellman, who is an absolute expert on the urban African, has called the dualism of their status, which is part tribal and part modern. I think that is an excellent description. If one compounds this dualism with the network of laws and regulations which restrict the freedom of movement of African women, which restrict their right to take up employment, their right to occupy houses in urban townships, their right to live with their lawfully wedded husbands and their right to have their children live with them, one is confronted with what I can only describe as a nightmarish situation.

Before the ’fifties African women used to be exempt from the pass laws, but these now bear down on them with equal force or indeed with greater force than on their menfolk. Unless a woman already qualifies under section 10(1) of the Urban Areas Act to be in the urban areas, she has no hope, or very little hope indeed, of ever getting into the urban areas because the towns are all virtually closed to new women entrants. That means that they have to remain in poverty-stricken homelands where there are very few jobs going, irrespective of the fact that their migrant labour husbands may well have deserted them, having reached the urban areas. I want to point out that in reply to a question which I asked in this House three years ago, the hon. the Minister told me that of 150 000 labour contracts attested, only 21 000 were for women. That was in the year 1971. I doubt whether the ratio is much better today and I shall certainly put a question to find out whether I am correct. The point is that practically every urban area is today closed to African women from the rural areas, which makes it impossible for many of them to support their children at all. A rural woman can seldom hope to join her townsman husband. Such a woman has to produce innumerable papers to prove that she was ordinarily living with him and that she had been there before 1953 as far as Cape Town is concerned and before 1959 as far as Johannesburg is concerned. What is practically the worst thing of all is that an African woman who does qualify to be in the urban area in terms of section 10(1)(a) or (b), loses that right if she marries an unqualified man. She may be endorsed out of the area. The hon. the Deputy Minister of Bantu Administration and Education shakes his head and although I know that he is doing his best in many respects to try to get a more compassionate attitude prevailing amongst the people who administer the law, I can assure him that there are many cases where women are endorsed out of the towns if their husbands die, for instance, and if they have been married to men who do not qualify. They lose their right to qualify and they are sent back to the homeland areas. It is very difficult for a woman to join her husband even in terms of the concession made by the then Deputy Minister who is now the Minister of Mines, Dr. Koornhof, that the young wives of newly married Africans would in certain cases be allowed to join their husbands.

They are allowed.

In very few cases indeed. I know that the Black Sash put in applications for 50 cases and not one was allowed.

When was this?

About a year or so ago. It happens all the time. I wish the hon. the Deputy Minister would come along with me, heavily disguised as an ordinary human being, and sit with me … [Interjections.] Well, I mean he is after all a superior being; he is a Deputy Minister. That is all that I was implying. I wish he would come along with me and sit with me in a Black Sash Advice Office either in Cape Town or in Johannesburg just for one morning …

Or in Durban.

Or, indeed, in Durban. I wish he would come along and listen to the cases which are being assisted there. I wish he would come along with me to the Bantu Commissioners’ courts and to the offices of the superintendents in the townships to see for himself how those cases are handled. If he does that, he will see what I mean. I know he sits there full of hope; he issues instructions that in future widows are not to be evicted. I am most grateful for that because the minute I hear of such cases, I shall certainly take them up with the hon. the Deputy Minister. Until very recently widows were not allowed to stay in their houses. Even if they qualified and paid their rent, they were made to give up their houses and seek lodgings. Now the hon. the Deputy Minister has said that they can stay provided they qualify. This applies only to section 10(l)(a) and (b), women by the way, and not to (c), which applies if such a widow was the dependant of a qualified man. They will also have to be able to pay the rent, but that is obvious and perfectly reasonable. I am very glad of this change in policy.

There has also been a change in policy as far as divorcees are concerned. At one time divorcees had to leave their houses, irrespective of whether they were the guilty party or not and whether the woman got the custody of the children or not. However, I believe that there has been a change in policy in this regard. If the woman gets the custody of the children, i.e. if she is not the guilty party, if she can pay the rent and if she qualifies—all these different conditions are laid down—she is supposed to be allowed to stay in the house. It still depends, of course, on the way in which the particular superintendent exercises his powers. However, I do hand it to the hon. the Deputy Minister that he is trying to alleviate the position in these particular cases. Nevertheless there are still very many cases of great hardship among the women in the urban areas of Johannesburg. The situation is very complex. They must be sub-tenants unless they have already been occupying houses of which their husbands were tenants.

I just want to say that the whole legal position of African women is ambiguous, insecure and a cause of much frustration and anxiety among them. About two years ago I presented a petition from the Black Sash to this House and that petition set out very clearly their specific disabilities. I do not think anything much has been done about that, with the exception of the cases I have mentioned, as far as widows and divorcees are concerned. I think it is high time a full-scale investigation is undertaken by an expert independent commission of inquiry, and not a departmental one—and let us have some women on the commission for a change, since this issue largely affects women—in order to revise the laws, in the light of all the changes that have taken place as a result of industrialization and urbanization, so as to lighten the intolerable burden which falls on the shoulders of African women, many thousands of whom are the sole support of their children.

I want to conclude by giving a few statistics. According to statistics compiled by the West Rand Bantu Administration Board in 1973, 29% of Soweto families had female heads. By 1970—this survey was not compiled by the Bantu Administration Board; I think it is a Unisa survey—more than 70 000 African women were employed in manufacturing and more than 50 000 in commerce. Three-quarters of a million were in services, mainly as domestic servants, and 25% were economically active. There are today thousands of African women teachers and nurses. There are African women to be found as social workers, there are African women clerks, shophands, typists and so on. Yet, as things stand, African women lose out both ways. They have lost the security afforded them by the old traditional tribal structure with its emphasis on the extended family. No one was left out of the extended family; there were no abandoned orphans or abandoned old people. They were all part of the extended family. They have lost out on that and at the same time they have been denied what liberated status other women have acquired as a result of their inclusion in the modern industrial society South Africa has become over the last 30 years. So I think there is an urgent need for this inquiry and I sincerely hope the hon. the Minister will agree to my request that such a commission of inquiry be appointed.

Mr. Speaker, in her speech here the hon. member for Houghton advanced arguments of merit, but at the same time she also made a far more wide-ranging speech than her motion really implied. While in actual fact her motion concerns the legal disabilities of women, she dragged in issues of far wider import which really have nothing to do with the motion of the disabilities of women. She mentioned matters of a socioeconomic nature here; she mentioned matters concerning which there is legislation that does not discriminate between man and woman, legislation that exists in the interests of order in this country. For that reason I believe that she was wide of the mark.

As usual.

Yes, as usual. She over-reacted altogether. What we want here is most decidedly not a plea on behalf of Bantu women on the basis of socioeconomic problems or considerations. What we must discuss here is a motion in terms of which we want to determine to what extent there is differentiation or discrimination between the status of man and that of woman.

I should not like to argue with the women in this year, 1975. It is the international Year of the Woman. The hon. member for Houghton said one unfriendly thing, viz. when she referred to “This House dominated by men.”

That is true.

Whose fault is that?

That is not a very friendly thing to say. I doubt whether, in her speech, the hon. member for Houghton, really spoke on behalf of the White and non-White women of South Africa in this particular respect. To begin with, the matters she raised on behalf of the non-Whites are aspects which are firmly established in the manners and customs of the Bantu. The hon. member for Houghton must be careful, because we must not be hasty when dealing with the Bantu and his manners and customs. We must be careful not to try and force the laws and customs and in particular the norms of the White person, and particularly the norms of the hon. member for Houghton, on the Bantu community.

I want to continue with the motion introduced by the hon. member, particularly with the (a) section, namely the removal of the legal disabilities of the women. It is not unfitting that this discussion should be taking place in this year, 1975, the international Year of the Woman. I have just looked up the definition of a woman. The dictionary says that …

Don’t you know?

The dictionary says: “It is the female of man.” In other words, she is the female counterpart of the man. In fact she is a component of the man. In this year there are in fact leading women who are trying to prove to us and make us believe that there is no such thing as “men”. Their argument in this regard is that reference is only made to the concept “man” in the context of the human race and while reference is in fact made to “women” not a word is said about “men”. According to this argument the idea of a man as such does not, therefore, exist at all. In my opinion this is not an acceptable or a valid argument, not even in this year we are living in now. I prefer to believe that woman is in fact a component of man, because I believe that she is physically created from the rib and the body of man. It is true that she has been created with a few small differences, but we as the male sex are humbly grateful for those small differences.

Actually the disabilities of women go back many years. They are based on the old primitive idea, as developed and realized through the years, of the dependence and the passivity of women. It was only in the 15th century that the idea that a woman has a soul was accepted. Sir, we have really made a great deal of progress since the 15th century and I am quite willing to concede in this year, 1975, that my wife, every woman, possesses a good soul. Even in the primitive communities where the idea of dependence, the idea of passivity, is very strong the position has changed. To show how times have changed, even in this Africa we are living in, I need only point out that Margaret Kenyatta, the daughter of Kenyatta, is today the mayor of Nairobi. In this context I can also mention Annie Jiaggi, who is a judge of the Appeal Court in Ghana. She has also been chairman of the U.N. committee on the status of women. We call to mind, too, Angie Braaks of Liberia. Possibly the hon. the Prime Minister met her during his recent visit to Liberia—I do not know. Nearer home, we also call to mind Stella Sigcau in the Transkei homelands. She is the Minister of Education there.

We also call to mind Helen here.

Yes, Sir, I want to be very gallant and I am quite prepared, for the sake of courtesy, to classify the hon. member for Houghton in this group.

Thank you very much.

Sir, it is true that women have become independent. They play an active ride in determining the destiny of the community, and of themselves as well. They use their voice very effectively. It was only in 1930 that they were enfranchised, and it is since those days that the United Party has been having a very hard time, and that, too, is the main reason why the hon. member for Houghton is such a lonely figure as a woman here in the House. Sir, there are other women, too, who could be mentioned here. I have in mind the present set-up in England, where Margaret Thatcher, a very capable woman, has attained to the status of Leader of the Opposition. I am told that she is already formulating plans to remove Harold Wilson’s smelly pipe from 10 Downing Street. Sir, through the years women have developed from an inferior position to virtual full equality in 1975. As far as private law is concerned, therefore, there is very little difference between the status of man and that of woman today. We are aware that discrimination still exists. I want to say that this is, in fact, essential discrimination; in fact it is differentiation, if we may use the idiom of today; it is differentiation on the basis of what is essential. The woman’s age of puberty is 12 years, and that of the man is 14. This is a fact which we simply must accept. There is legislation that provides that women may not take part in a boxing match or a wrestling match, but, Sir, the legislator might as well have left our “wrestling match”. Another discriminatory measure that still exists is that a girl may marry at the age of 15 and a man only at the age of 18.

We know why.

The hon. member says, “We know why.”

It is because they may very well be pregnant.

Mr. Speaker, I am not willing to concede that without argument. There is also the further discrimination that in terms of our Law of Criminal Procedure, corporal punishment may not be imposed on women. Mr. Speaker, I think this is good legislation, although I believe that a few knocks here and there will probably do no harm! Those are the essential consequences. If we call to mind what marriage involves, there is the concept of the domicile which the woman must follow and in my opinion, it is right, in the nature of marriage that this should be so. I think the hon. member for Houghton will agree with me. The least we expect is that the man and the woman should live together as long as that marriage exists, and this, too, arises out of the marital authority of the man, the authority to arrange accommodation, to enter into contractual agreements, etc. I want to concede that as far as marriage in and out of community of property is concerned, it is possible that gaps, differentiation or discrimination, whatever one wants to call them, may exist, but I want to point out that apart from the fact that this has been discussed so often before and that it has always occurred that the position has been improved from time to time, this matter is once again enjoying the special attention of all the authorities concerned in that the various law societies and others have submitted bulky memoranda to the Law Commission with the aim of giving this matter further consideration and deciding on what is right and what must be done. Sir, I do not begrudge women that status. I do not begrudge her the right to do and enjoy everything she is entitled to in this community as a mature and responsible person. In addition, particularly as far as the White woman is concerned, I want to express my appreciation for the assistance and for the contribution that is being made in these times, particularly by the women of South Africa in a position in which they find themselves, to the administration and to the orderly government of this country. We are grateful for that. But I want to say a few words about the disabilities of the Bantu women, as was also done by the hon. member for Houghton.

I want to repeat once again that the world of the Bantu is a wide one. It must not only be seen in the context of Soweto. In this country there are many peoples, many Black peoples, each with their own manners and customs, and it is therefore dangerous, as a Westerner from Houghton, to speak, without further ado, on the disabilities of the Bantu woman. They do not see it in that light. I want to tell the hon. member that in my constituency and on my farm there is a Swazi who is married to more than one wife. The hon. member for Houghton and we would regard this as polygamy. We should regard it as immoral if one of us were to take more than one wife. But it is not regarded in this light by that Bantu. On the contrary, to him it is the highest form of morality. That is his code, and he is a little able to understand our reasoning that only one wife is enough and that a man should not have more than one wife, as we are able to understand his ideas. I repeat that as far as he is concerned there is no immorality involved. On the contrary. If one were to take the way of life of that Bantu in his kraal, in his tribal context or on the farm, and this applies in that sphere and to so many others, and inspected it, one would find that he does in fact live on a level, on a plane, which is to him a very high-principled one in terms of his Bantu morals and customs, in terms of Bantu norms. I want to suggest that we should rather try to lead the bantu back in the direction of the Bantu’s own customs, in the direction of the Bantu’s own code.

Back to barbarian times?

The hon. member talks about “barbarian” times, but I think he is displaying a “barbarian” mentality by saying something of that sort. I want to quote from a book entitled Native Marriages in South Africa. What does the writer say?—

This is the dictum of a man who knows what he is talking about, but the hon. member sitting there has the audacity to maintain that this is “barbarian”. I shall quote something else that is just as illuminating. I quote from Primitive Marriage in European Law in which a Dr. Ray Phillips is quoted as follows—

This is the direction we must follow. The fact that the Bantu woman is under the guardianship of her husband should not disturb that hon. member. This is Bantu law as they have accepted it through the ages. It is not barbarian as an hon. member wants to maintain; it is the norm of Bantu law. They accept it as such and we should rather exert ourselves to guide the Bantu in such a way that he will maintain and respect his manners, his law, his customs and norms in that regard in a respectable, decent way. Then we should not have the immorality in the cities to which the hon. member referred.

Mr. Speaker, I must say that I believe that most members of this House enjoyed the humorous speech of the hon. member for Ermelo, but I personally felt a little disappointed that he had not made any really constructive suggestion in regard to the possible removal of any remaining legal disabilities of women, which after all is the motion to which we are speaking today. I agree with his suggestion that the hon. member for Houghton went far too wide in her opening remarks, that is when she introduced the motion. I believe that she adopted rather an emotional attitude to the whole matter. Her attack in regard to White women appeared to be directed mainly against the community of property rules in marriage. If that is so, then I believe that she should talk to the Federation of Business and Professional Women in South Africa.

I dealt with contractual marriages as well.

Yes, she dealt with that aspect as well, but she dealt specifically with the community of property rules in marriage. She should suggest to that body that they should revise the submission which they have made to the Law Commission, because in their submission they did not mention anything at all about the abolition of the marital state known as in community of property. Secondly, I must say that her arguments in regard to the Public Service Act and bursaries did not in fact have any relation to legal disabilities. I think she must agree with this. All she was trying to do there was to point out that there is in fact some form of discrimination in regard to women in the business sphere.'

We on this side were rather surprised that the hon. member introduced this motion because on Tuesday, 11 February 1975, in answer to a question which was put to the hon. the Minister of Justice, it appeared that the South African Law Commission was discussing under project No. 6 of 1974 a revision of the law relating to matrimonial property with specific reference to the Matrimonial Affairs Act— “Bertha’s Act” as she called it—the status of married women and the law of succession in so far as it affects spouses. I think this covers in effect everything that the hon. member had to say this afternoon in relation to the legal disabilities of White women. We were rather surprised that she introduced this motion, because, obviously, if the Law Commission is considering the matter the Government itself is doing something about it. Her motion reads that the Government should take immediate steps to remove the remaining legal disabilities of South African women. It stands to reason that these steps cannot be taken without a proper examination. I believe, however, that the opportunity is here and that we should make some suggestions. Despite the fact that I hear a muttering on my left from the hon. member, I shall try to be constructive. She may even be agreeably surprised.

It appears that legal disabilities arise mainly, if not wholly, out of the consequences of marriage. I refer here to the disabilities suffered during marriage, disabilities suffered on the termination of marriage, during the lifetime of both parties, and the disabilities suffered on the death of either partner. The hon. member referred to Bertha’s Bill. This Bill came before the House as a result of the recommendation of a commission of inquiry under the chairmanship of Mr. Justice Twenty-man-Jones as far back as 27 years ago. Three male and three female commissioners were appointed to serve on that commission so that the hon. member’s feelings in regard to the preponderance of men did not come out with any recommendation that community of property as a status in marriage or a form of marriage should be done away with. The commission made certain recommendations after a very exhaustive study. Looking through the commission’s report I find that it considered written representations from over 100 organizations. More than 180 persons gave personal and oral evidence before it. The commission was, therefore, very well informed, and it ultimately produced the Matrimonial Affairs Act of 1953 as a result of its inquiry. The aspects that were dealt with by the commission in respect of the 1953 Matrimonial Affairs Act were entirely connected with the protection given to women married in community of property and to those women married out of community of property but with the retention of the marital power. In other words, it was directed towards a limitation of the husband’s marital power and was, I believe, a good, necessary and timeous move. The other recommendations of the commission, however, were not followed by the Government. There are certain of these recommendations which should, I believe, now be looked at afresh by the Government. I am sure this will please the hon. member for Houghton. I say this particularly in the light of the increasing part that women are playing in the commercial and professional spheres of our world today. As was mentioned earlier by the hon. member for Ermelo the fact that a woman now heads one of the greatest parties in Britain is enough to indicate that changes have come about which are really quite tremendous. I believe that ten years ago and even five years ago people would have laughed at the suggestion that a woman would in fact lead the Conservative Party in Britain. In fact, even here in South Africa we have a de facto leader of a political party who is a woman.

In regard to suggestions which were not followed I refer particularly to the suggestion that steps should be taken to inform the parties to a marriage and to give them knowledge of the full legal consequences of marriage in and out of community of property, and of the effect of the retention by the husband of the marital power even if married out of community of property. This recommendation was made by the commission and I believe that ignorance of the precise position and the far-reaching consequences of the retention by the husband of the marital power are at the root of most of the agitation by women for the removal of these legal disabilities. Steps should also be taken to allow those partners who are presesently involved in a situation which has been existing for many years, where because of ignorance the husband is solely entitled to exercise the marital power, the right, to change their legal position to one where the marital power only is excluded from the marriage. Furthermore, the recommendation that all parties who marry in community of property should be afforded the opportunity of executing a post-nuptial contract within five years of the marriage, a contract providing for the exclusion of community and the marital power, and subject to the rights of creditors, should bear examination by the Government. I feel that this type of provision would allow the option of the retention of the very obvious benefits to a woman in a marriage in community of property.

Why do you say five years?

It is a recommendation which was made by the commission. I feel that the parties have then been given an opportunity to realize the full consequences of their act in marrying originally in community of property. I just want to mention here to the hon. member for Houghton that the question of marriage in community of property is not what the women of our world do not want, if I have put that in reverse, I am sorry, but it means that the women of our world are quite happy with marriage in community of property. What happened in 1949, when this commission sat? The National Council of Women of South Africa, embodying the views of some 60 000 women, and specifically supported by most of its branches, stated in its memorandum:

We are by no means opposed to marriage in community of property and are fully aware of its advantages under certain conditions.

I believe that there are tremendous advantages to marriage in community of property, but that there should also be reciprocal rights and duties, and that the husband’s primary obligation to maintain should be retained, regardless of whether the marriage is in or out of community of property. I believe very strongly in the retention of the family unit as the basis of the creation of a standard of moral behaviour, not only through the teaching to young children of respect for their parents, and consequently of respect for more knowledgeable elders, but also as a binding force for the creation of respect between spouses themselves, between parents and children, and generally between ascendants and descendants. A very powerful force in the creation of a family unit is the concept of the family head. There is a very real danger of this concept being lost if, in marriage, there is absolute equality between the man and the woman. I believe that there is a real danger to the family unit in our modern way of life, and we should guard against this trend which is increasingly emergent in modern life, where it has become necessary, for financial reasons mainly, for both spouses to go out and work. In some quarters of the world, in fact, it seems that the moral stigma of two persons living together, and even bearig children out of wedlock, has disappeared. I suggest that an overriding brake should be applied. I therefore have difficulty in conceding that the present law relating to the guardianship of children should be altered in any way at all. I feel, however, that the general rule of guardianship can be altered in relation to the right of a guardian husband to appoint a guardian in his stead, after his death, by testamentary disposition. I believe that these rights should also be provided for the woman. She should also be given the opportunity of appointing a guardian in her stead who can act with her husband so that there will always be two parties to give guidance in respect of children. After all, one must not forget that children are of both sexes and that it is sometimes necessary to have a female guardian and not only a male one.

There is just one other matter I should like to deal with before I sit down, that is another legal consequence of marriage which I believe militates against the interests of women and needs to be remedied. It is not really a legal disability as such, because it is not in a sense an existing law which positively disables a woman. It is rather the absence of a law relating to the maintenance of a surviving spouse. I do not have time to go into the details of the basic laws which prevail in our country regarding freedom of testation, because this is of very great importance. It does seem to me to be very wrong, however, that where spouses are married out of community of property the survivor, either the husband or the wife, can be left destitute or almost destitute. I wish to emphasize that I am here referring to both spouses. It could be said that the absence of a provision for the maintenance of the survivor operates both ways, i.e. to the detriment of the husband and to the detriment of the wife, but I believe that in 99% of the cases where such a sad position has been brought about, it is the wife who is the sufferer. This is obvious because the husband invariably has the greatest opportunity for building up an estate consisting of assets of value while the wife, attending to her homely duties, has a lesser opportunity. To my way of thinking there should be a provision in our law to protect the widow against her total disinheritance and possible consequent destitution. I believe that the answer lies in the introduction of a Bill on similar lines as the Family Provisions Bill which was drafted by the Law Revision Committee and published in a Government Gazette in 1965. Prof. Beinart has written a very interesting paper on this Family Provisions Bill, a paper which is contained in the journal named Acta Judica. I just want to quote one small section of what he had to say about the suggestion—

That is what he had to say in a very interesting paper. To the extent to which it provides for the maintenance of widows, I believe the Bill is relevant to the motion of the hon. member for Houghton. I would join her in her call for the Government to take steps to implement the recommendations of the Law Revision Committee of that time and introduce a similar Bill. In regard to the other specific items which I have highlighted here, we on this side of the House support the hon. members’s motion.

Mr. Speaker, the hon. member for East London City made a very responsible and quite conservative speech here today. I want to congratulate him on it and say that it is quite possibly due to the fact that that party has now got rid of its “verligte” wing and is now able to adopt a more conservative, reasonable, objective and positive approach in regard to such matters. [Interjections.] The hon. member made positive suggestions in respect of post-nuptial contracts. His proposal of a period of five years certainly deserves attention. He also referred to his respect for the family unit. I want to tell him that I agree with him entirely and that I shall refer to that later.

I should also like to associate myself with the hon. members who spoke earlier. Some of them said that the speech by the hon. member for Houghton was to a large extent irrelevant to the motion she introduced here. We must bear in mind that this matter was referred to a commission as far back as 1949, that in 1964 the Law Revision Commission gave attention to this matter, that the matter was extensively discussed in the Other Place in 1968, that it was discussed on the occasion of the private motion introduced in this House by the former hon. member for Wynberg, and that the matter was referred to the Law Commission this year as is apparent from the reply to a question furnished by the hon. the Minister to the hon. member for East London City. But, Mr. Speaker, as the hon. member for Ermelo said, this is the Year of the Woman and in spite of the fact that this House is ruled by men and her motion is largely irrelevant, it is an indication of the decency of the men that the opportunity was nevertheless given her to introduce this motion.

Thank you so much. I am so grateful.

She is probably also trying to become known as the Bertha Solomon of 1975. I really want to suggest to the hon. member that she should accept that the law is a science that develops through evolution and general acceptance. One cannot force the law in a certain direction if it is not moving in that direction as a result of ordinary evolution. The law is supple and flexible and if it is tampered with too much, that suppleness and flexibility is prejudiced. In this regard I want to refer to a judgment given by the hon. Chief Justice Mr. Innes in the Appeal Court in 1930—

I remain convinced that the Law Commission will see its task in this regard in the same light. The Bill we have just discussed here, namely the Abortion and Sterilization Bill, is to me a typical example of how the law has developed, and has developed and become acceptable to such a degree that matters may now be regulated on a statutory basis. I therefore appeal to the hon. member for Houghton not to bedevil this good and peaceful process again by means of her customary overstatements in the superlative degree. We do not want to anticipate the findings of the Law Commission in this matter. We do not want to tell them how we want the law changed. We trust that the Law Commission, too, as may be expected of people of the calibre serving in this body, to approach the matter with an open mind.

I must concede that there are certain aspects of the legal position and status of the married woman, particularly the woman married in community of property, that are unsatisfactory. I want to concede that the woman finds herself in the position of a minor, that she has no standing as a litigant, that her locus standi in judicio is affected, that she cannot accept or refuse an inheritance without the written permission of her husband and that she cannot act as a guardian or executrix without the written permission of her husband. It is strange that the hon. member for Houghton did not refer to the matter of donations between man and wife.

We did that last time. You were not there then.

So much was said last time that the hon. member could just as well have raised this matter again. It remains true that many of these disabilities can be eliminated by entering into an antenuptial contract, viz. where the man’s marital power has not already been watered down by the Matrimonial Affairs Act of 1953. Time does not allow me to deal with the provisions of this Act in detail. However, the main point is that the man’s unlimited power to control all the assets that had belonged to or been accumulated by the wife, was effectively restricted. Perhaps it would be interesting for the hon. member for Houghton just to take cognizance of what Prof. Wille had to say in his book Principles of South African Law (sixth edition). I just want to read the introductory paragraph of the chapter on “females”. He states—

and so on.

Yes, “provided”!

The Association of Law Societies has recently submitted a memorandum of 3 000 folio pages to the Law Commission concerning this very aspect. Except for what can be deduced from Press reports, it is difficult to determine precisely what is embraced by these proposals. We do know that it is recommended, inter alia, that when a man and a woman marry, the two estates should nevertheless remain separate and that a new estate should be created with effect from the date of their marriage. That is, inter alia, one of the alternative proposals made in this regard. These proposals were intended to serve as a point of departure for the purposes of deliberation and do not necessarily represent the final standpoint of the Association of Law Societies. This is an interesting proposal, but it means that instead of one joint estate or two separate estates, one is now going to have three estates. This remains a difficult problem because one of the parties will, after all, have to be responsible for the administration of that joint estate.

I also want to add that the marriage out of community of property definitely does not solve all the problems in this regard. I want to mention a few examples. A couple start their marriage with nothing but love. They have no other assets. In love, and with great sacrifice, the wife devotes her whole life to the care of the family while the man develops the estate. Then, when in his troubled forties the man leaves his wife for pastures new, she has no claim on any part of the estate.

I also want to refer to the instance described in the case of Glaser v. Glaser. The wife has no claim for maintenance against the man’s estate. The law of succession, in terms of which the wife’s intestate share of the inheritance was increased from R1 200 to R10 000 nevertheless fails to give her the right to share in a claim for maintenance. She cannot institute a claim for maintenance against the estate of her deceased husband. Mr. Speaker, in my opinion, this is a crying injustice.

A third injustice is that under certain circumstances the woman has no claim for the repayment of moneys which she took from her own earnings and utilized for the benefit of the family.

However, there are certain aspects to which the hon. member for Ermelo also referred and which, in my opinion, should not be tampered with. For example, I think that the matter of domicile is something that must be determined by the man. It goes without saying that the woman should go and live where the man works and lives. I think, too, that the question of guardianship can also be left as it is at the moment. I think that while things are going well between man and wife, this position causes no problems between man and wife. It is only when difficulties start that the question guardianship creates problems. I do think that in this regard we can dwell briefly on the position of the man.

Section 3 of the Act of 1953 provides that if the wife pays any debt incurred in respect of articles for the joint household, she may demand the full amount from her husband, however rich she may be and however precarious his financial position may be. In a divorce action where there is a dispute as to who is the guilty party, the wife has certain remedies at her disposal which can inflict heavy blows upon the morale of the man in those first few salvoes of the case. Here I have in mind the interim claims for maintenance pendente lite and contributions to costs. Sir, since I am referring to the question of divorces, I note that there have been pleas that the whole question of guilt on the part of one or other of the parties to the marriage, should fall away. If it is an established fact that the parties are totally irreconcilable as regards the temperaments and personality, then the marriage should be terminated. Since we here in South Africa have about the third highest divorce rate in the world, I am unable to associate myself with such a situation. It seems to me that an idea of this kind facilitates yet further the breaking up of the marriage. Incidentally, Sir, there is a commission under the auspices of the Department of Social Welfare that is investigating and giving consideration to the entire issue of divorces, the position of the woman and particularly that of the children. This aspect, namely the legal position of the married woman, is now under consideration by the Law Commission. I think, Sir, that because of the serious nature of this matter, the necessity for speedy progress to be made, and for the sake of efficiency, that it is imperative that only one specific department should deal with this delicate matter. In my opinion it will not prove to be fruitful for both the Department of Social Welfare and the Department of Justice to approach this matter, possibly only from different angles.

Sir, in conclusion I just want to say this about this aspect: Even in these times of the emancipation of women and the narrowing of the wage gap, the fact that to an ever-increasing extent women are escaping from the potestas of men, involves a certain important disadvantage. The hon. member for East London City also referred to this. We acknowledge at once that the relation between man and wife is that of a partnership. But, Sir, to me it remains a different kind of partnership. One of the two must have control, and for the sake of the security, the stability of the marriage, the welfare of the family, the discipline of the family unit, the promotion of healthy adjustment, both among its members and externally, that person must be the man.

Why?

Sir, I want to refer the hon. member for Houghton to the following words of Prof. J. P. de Lange of the RAU for consideration (translation)—

No wonder you can’t read it.

Does the hon. member follow it? (Translation)—

We will take a chance.

Mr. Speaker, I now come to that position of the Bantu woman. Here, more than ever, I take it amiss of the hon. member for Houghton for trying to force something into a state of ripeness before a situation receptive to it has developed through a healthy process of evolution. But apart from that, her entire speech typifies, once again, the clear contrast that exists between the approach to this matter adopted by her party and by mine. She considers it ridiculous and bad to encourage the Blacks to seek their salvation in the performance and development of their own personal customs and culture. Sir, I agree that there are certain tribal customs that are of great significance to them but which are totally foreign to us.

Like witchcraft.

But that has nothing to do with the rights of women. What right have we to force the Blacks towards acceptance of a system that conflicts with their own personal manners and customs? Sir, we are just as little entitled to express an opinion on their lobola system as on the system according to which the father of the bride gives a dowry to the bridegroom. Now I know, Sir, that a middle-class Bantu is developing in the cities. It should be borne in mind that particularly as far as the women are concerned, they are still only first-generation immigrants to the cities. It is interesting to look at the statistics in this regard. In 1911 there were only 100 000 Bantu women in the towns and cities, i.e. 19% of the total urban Bantu population. In 1946 there were 1,8 million Bantu in the urban areas of whom one-third were women, and in 1970, 42,5% of the total urban Bantu population of 4,4 million consisted of women. We must take account of the fact that in accordance with Bantu customs, it is part of their way of life that the wife occupies a status inferior to that of the man. However, the man and the wife form part of the whole extensive family. This large family forms the refuge and provides the extensive security of each of its members. They have compassion on the widow, they have compassion on the orphan, and they care for the elderly. This is a fine custom. Sir, that should be retained among the urban middle-class Bantu and it should be extended and developed in accordance with their own requirements. In the cities, the patriarchal pattern of the whole family unit is no longer so clearly perceptible. The family entity has become a smaller entity, but for the most part the woman’s role is still an inferior one.

The role of the Black woman in economic life has also expanded in this process of urbanization. Here I refer to certain statistics that have also been taken from the details furnished by the same authoress to whom the hon. member for Houghton referred. She referred to a number of women employed in industry. The percentage of economically active women has grown from 15% to almost 25% of the total female population over the period from 1960 to 1970. Even the statistics in respect of the income of these women has grown closer to those of the men. For example I refer to the income of teachers. The male Bantu teacher in a low school earns R846 and his salary rises to R1 904. For the women it is R677, rising to R1 686.

Sir, I want to conclude by saying that it is not for us as Whites to interfere in any way with the development of the legal system of the Bantu as it has developed in accordance with their culture and their own mores and norms.

Mr. Speaker, the hon. member for Brakpan mentioned that the rights of women would come in an evolutionary way and that has, of course, happened over the years. For example, it took Bertha Solomon and those who worked with her 20 years to get the major disabilities of women removed, and then another 13 years to whittle away a few more of the remaining disabilities in the 1966 amending Act. That is almost 10 years ago. So, even if we take the argument that the hon. member put forward, the time is ripe for him to support the motion which is before the House now, and I am glad to hear that he is obviously going to do so.

Sir, many comments have been made, both in terms of interjections and in speeches so far. It seems to me that the hon. members for Pretoria Central, Potchefstroom and Waterkloof have a kind of Victorian hangover, a sort of paternalism which pervades so much of that party and the legislation which exists both for women and for men in this country, a kind of desperate fear that people are going to enjoy a wider freedom and greater opportunities in life. Sir, every time one speaks about the rights of the individual or of the rights of people or of the rights of a group, immediately there is great consternation on that side of the House. As I say, this is a kind of Victorian hangover, a colonialism, an absolute colonial spirit which wants to oppress and dominate. This of course makes me wonder what their wives must think of them. If I were one of those hon. members, I would be afraid to go home tonight, because obviously they are browbeaten and therefore must try to take it out on the hon. member for Houghton.

I enjoy my going home probably more than you enjoy yours.

I am very glad to hear that; I am greatly reassured. [Interjections.] It seems to be quite fitting that the person who proposed this motion should be the hon. member for Houghton. Despite all the opinions held by many people opposite me and to the right of me and the many irritations shared by many of them, it is quite clear to many, many people inside this House and outside that that hon. member has stood for and supported the civil rights of people in this country whether they be Black or White or male or female. Therefore it seems to me very appropriate that the hon. member for Houghton should be the one who moved this motion.

The hon. member for Ermelo pointed out that women ought to know their place because when you read in the Old Testament of the creation of man and woman, you find that the woman was created from Adam’s rib. The hon. member for Ermelo is quite correct, of course, but he is not up to date; he has not told us the whole story. If he reads the New Testament, he will see it clearly stated that before God there is neither male nor female, nor Gentile nor Jew, nor barbarian, nor Greek. It seems to me that this is a much more up to date attitude and if we follow that, then obviously we cannot quarrel with the motion which is before the House.

Despite their legal disabilities and despite the discrimination against women for so long, it is quite remarkable the contribution that they have made and are making now to the South African society. One can look at almost every area of life and see how women, despite, as I say, these disabilities, have moved to the top, have made a contribution whether it be in commerce or industry in this modern day or in education or any other aspect of life, and of course not excepting politics.

I want to refer to four major areas or four specific areas where disabilities cannot be denied. I hope that the hon. member for Caledon will not object too much if I focus on the rights of African women in particular because this seems to cause him some irritation. In the first instance I want to talk about the African women who wish to marry a man who is qualified to have permanent residence in urban areas.

They are not even allowed to live in Pinelands after six or seven o’clock.

That is right, and you should do something about it. I am glad the hon. the Minister has pointed that out and I hope that he will do something about it. It is quite wrong.

It is something to which you should give your attention.

I quite agree, but unfortunately for 26 years it has been that side of the House that has made the laws and that is why we are in the mess in which we are. [Interjections.]

Order!

I should like to refer to one specific person because so often when we talk in terms of women in general or statistics we have a faceless situation which it is very easy for us to brush aside and say that such a thing does not exist or it is not all that bad and that people are exaggerating.

Let us take the case of one particular woman who has a specific problem, a Mrs. Mkonjiwa. Her husband is 60 years old. He came to Cape Town in 1937 and has been with the same employer since 1958. Twenty years ago he contracted a Christian marriage. Perhaps the hon. members for Brakpan and Ermelo will try to remember that there are hundreds of thousands of Black people who are Christians in this land. Whilst I appreciate their concern for the style of life of the person who may not be a Christian living on a farm and who has a polygamous marriage, and so on, I wish that they would be as equally concerned about the hundreds and thousands of Black people who are coming into, and need to be in, the urban areas. No one can defend the separation and the breakdown of family life. This is exactly what is happening because of the disabilities suffered by women in this country. I am now talking specifically about African women. He and his wife, for 20 years, have been “visiting” one another because they are not allowed to live with each other. They therefore have a home in Cape Town and a home in Kentani in the Transkei. They have six children. He lives in what is euphemistically called “single” quarters. In 1974, acting on advice, his wife left the Peninsula, because he had been assured that he and his wife would finally get permission, after 20 years, to live a normal life as people who had been married under Christian rites. This was in single quarters in Langa. He then applied for lodging. Together with the person who lived in the house in Langa he applied for that permit and was then told that if it was granted, that would be the very last time his wife would be even allowed to visit him let alone to live with him.

That is not a woman’s legal disability.

This is the very question. [Interjections.] The law makes it impossible for that woman to live with her husband and if that is not a disability, what is? I ask the Minister, if it is not a disability where the law prevents a wife living with her husband, what is? It is a legal disability. It is part of the law. [Interjections.]

It is not a legal disability.

I am not prepared to quarrel over words. The fact of the matter is that people are living separately because of the laws of this land and that is the problem. That is why we need a commission, why people need to look at this problem and find a way of overcoming it. That is all the motion asks for. The motion asks for a commission to look into this matter. If only hon. members will actually look at the motion. [Interjection.] The hon. member for East London City says that the hon. member for Houghton is emotional but the emotional reaction to this motion is quite incredible..

It’s hysterical.

When it comes to a question of separating people I say it is something which should challenge the whole of us, including our emotions and our deepest feelings, because at the very heart of a nation is its family life. Because of this law they are not able to live together and no one can defend that kind of thing. Why then cannot we support the appointment of a commission to look into the matter and to make living together possible?

Tell us about the mine compounds.

I agree with the hon. member. The mine compounds are a shocking disgrace. I think here too the Government must change its legislation and enable people to live together. [Interjections.] I do not have much time so I will take up some of these questions a little later on.

Let me mention one other example of a person who lives in this area. I am referring to Mrs. Eleanor Msolo. This dreadful story appeared in The Argus of 16 November 1974. She asked to be allowed to remain permanently with her husband with whom she had been living for 22 years in Paarl but her request was turned down. Now she cannot understand why this should have happened. She is confused, she is bewildered and she does not know what to do. This is the one point. The second is that women who qualify in their own right to live in an urban area, usually in terms of section 10(l)(a), may wish to marry a contract worker. They are told that they cannot live in the area. They must immediately go to their husband’s rural home where they will see him on his annual leave, or they can live separately in the urban area, even though they are legally married, as a result of the law. Thirdly, women who are breadwinners for children or older parents, whose husbands may have died or left them, may want to take up work in an urban area. They may actually have had a job offer. It is not a question of their coming unemployed, they do have a job offer, but they cannot come into the urban area. All this is part of the disability affecting African women. All we are asking—and I think it is a very reasonable request—is that there should be an inquiry to examine the matter. If we are wrong, let the commission say so. If, however, we are right, let the necessary action be taken to change the situation. The last point I want to make is that we are all aware of the desperate shortage of skilled people. We know that our economy cannot grow as it must grow without more and more skilled people, including women. There is a home right here in Cape Town, i.e. St. Monica’s Home in Lion Street, which requested permission to train African women as midwives to care for their people. There are the necessary vacancies, and there are the necessary people to be trained, i.e. five young women from the Ciskei and the Transkei and one from Kimberley, but a permit cannot be obtained so that these people can receive the training to serve their people who are living in their hundreds and thousands in the urban areas. The only way to remedy the lamentable state of affairs, with its very far-reaching consequences, is to bring about fundamental changes in the existing legislation. Here is a golden opportunity for the Government to prove to South Africa and to the world that when it says it is against discrimination, it means what it says and that it is going to follow this through by not only talking about it but also by changing that legislation which is discriminatory.

Mr. Speaker, thus far I have listened attentively to the debate and in the time at my disposal I, too, shall attempt to make a contribution. I do not want to reply to the last part of the arguments advanced by the hon. member for Pinelands, because I am of the opinion that some of the participants in this debate dragged in certain matters this afternoon by the scruff of the neck, matters that really have nothing to do with the real intention of the motion as proposed by the hon. member for Houghton. Right at the outset I want to say that I am of the opinion— and I say this without hesitation—that discrimination between men and women purely for the sake of discrimination can never be justified. I think that we are already far past that stage in our history. I should like to regard marriage as a special kind of partnership. In marriage we are dealing with rules that have developed through the centuries and have withstood the test of time. We must be very careful before tampering with old and proven rules of our law without giving thorough consideration to the full consequences of our actions. I personally am a strong champion of marriage in community of property. I see marriage as a partnership, not only as far as property is concerned, but also in all the other aspects of life. We may ask the question: If we see marriage as a partnership, why can we not deal with the control of the property of the partners in that partnership on the same basis as the legal rules that apply to ordinary business partnerships? It is reasonable to ask that question. Looking at an ordinary partnership, we shall see that both partners usually have the same right to bind that partnership, that the powers of the one are not inferior to or less than those of the other. We ask why the same rule does not apply in the case of marriage as well. When, in the case of an ordinary business partnership-, there is a clash between the two partners with regard to how they should have acted and they are unable to come to an agreement, there is only one solution and that is the dissolution of that partnership. Now, I fear that if we want to cause a rule applying to the ordinary partnership to apply to the case of marriage in community of property, so that both partners, the man and the wife, will have the same rights in respect of control over the property, we could be and very possibly would be creating an additional cause for possible friction between spouses. That, I think, is why it has been provided in our law through the centuries that as far as the marriage partnership is concerned, there should only be one controller of the joint estate.

If we want to effect changes as we have already done—I refer to the Matrimonial Affairs Act—we must be very careful. In my practice as an attorney I have only once been concerned with the Matrimonial Affairs Act of 1953. I refer in particular to the provision that the man may not alienate the immovable property, with the conditions attached to it, that has been added to the community of property by his wife, without the written permission of the wife. This is the only case I have come across in practice where there have been disastrous consequences for the wife. What occurred in that instance was that the man did in fact sell property brought into the community of property by his wife. When the purchaser of that property claimed transfer, this provision of the Act was raised because the man had not obtained the written permission of his wife and the purchaser was therefore not entitled to be given transfer of the property. The result was that the purchaser of the property summonsed the man for damages and there was a long drawn-out court case in the Supreme Court. The man was ordered to pay both damages and the costs of the case. The piece of land which still formed part of the joint estate was eventually sold in execution to pay the costs of the case. The one case I have come across of the operation of one of the provisions of this Act intended to protect the interests of the wife resulted in the wife’s assets being totally wasted. That is why I say that we must be careful to give thorough consideration to the full consequences of any changes that we want to bring about to our existing legal rules.

It is true that it is not so much for the people who are going to obey the ordinary rules of decency between person and person that we lay down legal rules, as for those people who are not going to abide by those rules. It does not matter what laws we adopt; whether we provide that the man is the master of the house, or whether we provide that the woman is the master of the house—the real personal relationship between man and wife will eventually be the really decisive factor.

In the region where I grew up there was a couple who were addressed as Uncle Betty and Aunt Stephan. Looking around this House, I am greatly reminded of Uncle Helen and Aunt Colin. But the rules are there and must be there for those people who are unable to abide by the ordinary rules of decency. I personally am of the opinion that we could profitably consider all the facets of the disabilities mentioned here by the hon. member for Houghton. She did not suggest how those problems could be avoided. We already know that the Law Commission is considering all these problems. I am therefore of the opinion that in actual fact this motion serves no useful purpose at this stage; I do not want to say that it is superfluous. I think that in this country we have fine lawyers and sociologists and this is a matter which we should approach unemotionally as ordinary people in a levelheaded and calm manner. I believe that there will eventually be solutions to all the problems that may exist.

Mr. Speaker, the hon. member for Barberton will not take it amiss of me if I do not respond to his speech, because I really want to deal with another matter within the scope of the motion.

†It is with great pleasure that I rise to identify myself with the motion proposed by the hon. member for Houghton and to support requests that a commission of inquiry be appointed to investigate the legal and other disabilities women in South Africa are subjected to. I wish to deal primarily with some of the problems and disabilities affecting African women. In the process I shall of course cover the same ground the hon. member for Houghton covered but I wish to assure the House that we did not compare notes before the time.

Great minds think alike.

These disabilities are in many respects much greater than those applicable to White women. The difficulties and disabilities Black women have to face are mainly the result of three factors, viz. the vast changes taking place in the social, economic and political structure of African society, the consequent changes in the function or role of the individual in that community and in the larger South African society. The breakdown of the social and religious fabric of traditional African societies …

You should really have laid that speech on the Table.

… the replacement of their old subsistence economy by a Westernized cash and wages economic structure, the disappearance of the extended family system in favour of the modern individualistic approach to rights, duties and responsibilities, the changing role and relationship between husband and wife and between parents and children, their increasing involvement in a Western industrialized society and in the continuing process of urbanization that has already assumed vast proportions, the inevitable effects of the cultural contact and cultural assimilation that have taken place and are taking place at an accelerated pace in which the Church and the school have played a major part, these are but Dart of the revolutionary changes taking place in our very midst and before our very eyes.

Who are you quoting?

Myself. It makes no sense to deprecate or deplore those changes. They are as unavoidable as birth and death itself. Our duty in this House is to be constantly conscious of this process of change and sensitive to the needs and problems generated by this change in the life of the community and the individuals most affected by it, viz. the Black community and Black individuals, and as far as possible to remove the legal and administrative policies and practices that are rigid and inflexible and out of touch with the realities of this new emergent world Secondly, many of the disabilities affecting Black women are due to the conflict of laws in South Africa, a conflict of laws which in itself is a function of the culture contact and change which I have referred to. It should be obvious that a legal system and legal principles that have operated satisfactorily, as they did, in a traditionalist community-orientated subsistence economy and rural type of society are entirely unsuited to the needs of a twentieth century industrialized and urbanized situation. I shall return to some of these aspects shortly.

In the third place it seems to be highly questionable whether our policies and administrative practices have been accepted and whether they reflect these tremendous changes which I have referred to. As I read the motion, the second part goes wider than the first. The first part of the motion deals with legal disabilities only whereas the second part dealing with Black women extends to other disabilities and is not limited or restricted to legal disabilities. That is my reading of the motion of the hon. member for Houghton.

It seems as if our policies and practices are still directed at denying, in a negative kind of way, the process of urbanization and at preventing the growth of normal family life in the urban areas and give evidence of an unwillingness to accept the need for residential, social and economic security for the Black individual and the black family in our urban areas.

Let me now return to some of the legal problems facing African women in South Africa. In the first place I wish to refer to their legal capacity. As we know, section 11(3) of the Bantu Administration Act introduced in 1943, attempted to provide some solution to the conflicting legal situation in the Cape and in Natal particularly. You may be aware that in the Cape full legal capacity was conferred on African women as well as on men on attaining the age of 21. That is in our law. In Natal where the Natal Code of Bantu Law has been and still is in operation, the principle stated in section 27 is that an African woman is regarded as a perpetual minor under the perpetual guardianship of her husband or her father or some other male relative of either, unless she has been formally emancipated in terms of section 28, a process which is both cumbersom and unpopular. It appears that section 11(3) has not dealt fully with this problem. Although there seems to be a trent in our court decisions to apply in Natal, despite the provisions of the Natal Code, the principle that in common law contracts and delicts the common law principles regarding a woman’s legal capacity, including the rights and liabilities under contract and delict, should apply, this by no means covers the entire field and still leaves her locus standi in doubt. Sir, the Natal Code was first drawn up about a century ago, round about 1876. It was first made applicable in 1879. It has been changed only negligibly since that time, so negligibly that the changes can for all practical purposes be ignored. Sir, nobody, but nobody, could have foreseen 100 years ago what South African society—and particularly African society—would be like today, just as no member of this House, even in his wildest dreams, can possibly create a picture of what this country will be like in another 100 years’ time. In many respects, I believe that the provisions of the Natal Code have become anachronistic and untenable, and the time has arrived for drastic revision and restatement. A few examples, I trust, will suffice. In terms of section 25, every African in Natal is either a kraal head or a kraal inmate, subject to the kraal head in all kraal matters. I have already indicated that under section 27 a Native female is deemed to be a perpetual minor in law and has no independent powers save as to her own person and as specially provided in this Code; this refers to section 28, which simply means that a woman, if she wants to be in control of her own affairs, has to get special emancipation through the Bantu Affairs Commissioners Court. Subsection (2) of section 28 then states that such application by a woman for emancipation shall be upon affidavit and motion to the court of the Bantu Affairs Commissioner having jurisdiction and upon notice to the applicant’s father or guardian, and the court shall grant its order thereon. Quite obviously, Mr. Speaker, these provisions were aimed at the position of a woman within traditional tribal society. It was not meant—I repeat—it was not meant to refer to and cannot possibly be applied to, for example, a Black woman who has lived in an urban area all her life, graduated from a university and perhaps become a professional or business woman in her own right, or who married a man with the same background and qualifications. Surely, Sir, such a woman on reaching the age of 21 or becoming widowed or divorced should be entitled to own immovable property, to be freed from the control of her father or guardian, to have full power to contract or to sue or be sued in her own name and to be given control over her minor children and their property without having to apply for formal emancipation.

The same criticism applies to section 26 of the Code, which provides that a female may acquire property, but subject to section 35, which lays down that a kraal head is entitled not only to all the earnings of his minor children, but also to a reasonable share of the earnings of the other members of his family, such earnings to be utilized by him primarily for the maintenance and benefit of the houses providing them and for general kraal purposes. Again, Mr. Speaker, quite obviously this refers to a kind of situation which is typical of a traditional African society and cannot possibly be made applicable to a female who lives permanently in an urban area and has to care for herself and her children.

Mr. Speaker, there are other anomalies in this connection, but time does not permit me to deal with these fully. But may I say that a commission of inquiry, as has been asked for, should to my mind deal with the following urgent matters affecting the position of African women: the legal capacity of African women, especially if unmarried, divorced or widowed; their locus standi; their proprietary capacity, etc.: the custody and guardianship of their minor children born from customary unions, common law marriages or extramaritally; claims for maintenance in respect of their minor children; their rights in respect of illegitimate children; actions and damages for seduction, pregnancy and breach of promise; testate and intestate succession, and particularly also the distribution of the estates of unmarried or divorced females and of widows; and the right to own and occupy property in the homelands, for example, in the surveyed locations. In this respect—the hon. member for Houghton has referred to it—I regard the amendment introduced in 1972 whereby a major Black female in an urban area wishing to contract a common law marriage first has to get the written permission of her father or guardian, as an extremely retrograde step. I believe that that situation has to be looked into and should be amended. Under these circumstances I support with great pleasure the motion of the hon. member for Houghton. I believe honestly and sincerely that a case has been made out, at least as far as Black women are concerned, for the appointment of a commission of inquiry to deal with the various problems and difficulties faced by African women in our society today.

Mr. Speaker, it is always a pleasure to listen to a specialist in a particular field, and the hon. member for Edenvale is a recognized specialist in this field. He makes a very worthwhile and meaningful contribution to a debate of this kind. His is also a voice of enlightenment, and I am always very pleased to listen to a voice of enlightenment, irrespective of where it comes from. [Interjections.] Whether that voice of enlightenment comes from the right of me, or from across the aisle, or even from the left of me I hope that the voices of enlightenment will come together in South Africa in the very near future in order to save this country from the unenlightened attitudes and laws which exist and which have brought us to the very precipice of destruction. [Interjections.]

I should also like to say that I support the motion of the hon. member for Houghton. I think it is a very good motion and I think it is important that this House should consider seriously and objectively the intention of that motion. But I have a difficulty, and that is …

You have many difficulties.

You have many more difficulties than I have, my friend. Sir, I get the impression that the atmosphere in this House is not conducive to the objective discussion and consideration of a motion such as this. I believe that the reason why the Abortion and Sterilization Bill had such an unfortunate passage through this House resulted from the fact that the atmosphere was not what it should have been.

Order! The hon. member must withdraw that.

Sir, I accept your ruling and I withdraw it. When the rights of women are discussed, it is unfortunate that they should be discussed in a House in which the women of South Africa are so poorly represented. I want to say, however, that the one woman who does represent the women of South Africa in this House does a very good job. [Interjections.]

Order! Hon. members must give the hon. member an opportunity to speak.

It is a pity that there should be so few women representing the women of South Africa in this House. I believe that the views which have been expressed from all sides of the House, which were critical of the attitude of women and which attempted to pass off the legitimate aspirations of women by way of jokes exhibited towards the women of South Africa a degree of effrontery which will result in the women of South Africa taking their own steps to see to it that they are better represented and that their rights are properly and more effectively represented in this House. I believe that the women of South Africa should stand up for their rights. I believe they should get together and see to it that women’s power becomes an effective force in South Africa. They should replace some of the unenlightened male representatives of the people of South Africa with enlightened female representatives, and if I may make a suggestion, the place where the women of South Africa can well start is the province of Natal. [Interjections.] Mr. Speaker, I am having difficulties with the policeman in front of me, the hon. member for Umlazi. [Interjections.]

But you must not talk rubbish!

Order! I appeal to hon. members to give the hon. member for Bryanston a proper opportunity of completing his speech.

On behalf of my colleagues I should like to say that we are totally opposed to discrimination of any kind, whether it is discrimination based on race or colour or whether it is discrimination applied on sex. [Interjections.] When I said that we were opposed to discrimination, there were boo’s, ooh’s and aah’s on the right of me. The difference is that when we say that we are opposed to discrimination, we mean it in every sense of the word.

I see you stand for indiscriminate sex. [Interjections.]

We are opposed to discrimination in any form in which it appears. We are opposed to discrimination based on colour and on race and we are opposed to discrimination against the women of South Africa whether they are Black, Brown or White. We will write into our basic principles the guarantee of the equality and the rights of the women of South Africa. I and my colleagues have over a long period believed in effective and meaningful dialogue with representatives of the other race groups in South Africa, not only with the male representatives of the other race groups in South Africa, but also with the female representatives of the other race groups in South Africa. We believe that if you want to find out what the difficulties, the problems and the aspirations of the Black, the Coloured and the Indian women of South Africa are, then you must send your women and your representatives to talk with them on a man to woman or a woman to woman basis. I believe that when the mothers of South Africa get together, when the Black, the Brown and the White mothers of South Africa get together, then the verkrampte White males who dominate not only the Government, but also the Opposition in this country, had better look out … [Interjections.] … because when the Black, the Brown and the White mothers of South Africa who are concerned about the interests, the future and the welfare of their children, get together, they will not be prepared to accept the ideological prejudices of either the Opposition or the Government. They will look at the real interests of their children and not at the ideological prejudices of the Government and their soul-mates in the official Opposition.

A great deal has been said about the respect for family life. The Nationalist Government often speaks about the respect for family life. These words are used very loosely by the Nationalist Government and they have also been used on this side of the House. Hundreds of thousands of Blacks who marry in South Africa do so as Christians in churches, according to Christian rites. They marry according to that sacred principle that those whom God has brought together, no man may put asunder. But in terms of the Nationalist Party’s policy, the Nationalist Government is excluded from that dictate of God, because those whom God has brought together in terms of His holy laws, the Nationalist Government are entitled to put asunder in terms of their man-made prejudicial laws. [Interjections.] It is no good protesting and it is no good the hon. the Minister of Indian Affairs and of Tourism looking very uncomfortable and unhappy. It is a fact of South African life and he knows it better than I do, because he brought it forcefully to my attention hundreds of times. He can tell this House better than anybody else of the resentment, the hatred, the unhappiness, the heartache and the difficulties which the laws of this Government have brought to bear on Black families.

May I put a question to the hon. member? Is the hon. member on his way to Valkenberg?

I have only a few minutes left at my disposal and I am not going to reply to questions now, whether they are intelligent or silly, such as the one that has come from the hon. member on the opposite side.

†This Government must take cognizance of the fact that it has on the Statute Book laws which destroy family life, which break up families, which separate children from their fathers and their mothers and which prevent fathers and mothers from developing a normal, sound and happy family unit. These laws bring about degradation, unhappiness, broken hearts and psychological problems in the development of families.

Order! I have allowed the hon. member for Bryanston to speak fairly widely on the second part of the motion, but he must please try, as far as possible, to stay within the limits of the motion.

Ek aanvaar dit mnr. die Speaker. I am now speaking to the second part of the motion which deals with the special disabilities affecting African women. Let us forget about all the legal disabilities for the moment. If you speak to African women they tell you that they are prepared to put off for the future the consideration of their legal disabilities, but if there is one thing which enjoys the highest priority in the life of every African woman, it is the desire to own a home, the desire to be with her husband and children, the desire to be secure and safe from the actions of the State which separate her from her husband and children; it is the desire to lead a normal, decent and Christian life and not to be subject to the disruptive, destructive laws of this Government which separate her from her husband and children, which destroy her family life, her happiness and her future. Let us therefore not say that this is not part of the motion. If we can deal with that disability, and in fact, if the hon. the Prime Minister can deal with this one disability in the life of the African people in this country in 1975, he will have brought about the major coup of his career and he will have seen to it that South Africa is placed again in a position of honour and safety in the world. Let us think in terms of the real aspirations, the real requirements and the real difficulties of the African women; not just a few of them, but hundreds of thousands of African women. They are normal decent people who have children and who are trying to run a home; they leave for work at 4 o’clock in the morning and travel for many hours to their places of employment to eke out a living to enable them to send their children to school, to feed and to clothe them.

Mr. Speaker, I want to say at the outset that I do not think there has ever been a time when I have agreed on any point with the hon. member for Houghton. This afternoon I am glad to say that this is the first time I am in a position where I need not cross swords with her. I think all of us—this applies to this side as well as that side of the House—have a feeling of reverence for the women of South Africa, as well as very great admiration for the task the women of South Africa are performing, for their professional status, for their exceptional insight, for the way in which they assist the men and in many respects surpass them …

What is coming?

… for the way in which the women of South Africa are active in very important sectors of our society, for example churches and welfare services. There are too many to mention.

And election campaigns!

In spite of what the legal status of the woman might be, I think that all of us agree that to us women have an exceptional status. In South Africa we have a high regard for women and that is why I want to avail myself of this opportunity to express my thanks to the women of South Africa for their contributions to our society. Of course this side of the House is in favour of as much legal status as possible for women. The hon. member for Houghton is asking me—

On 24 January 1975 I gave an instruction to the Law Commission to inquire into the following:

1. (1) the law in respect of divorces and related matters.

In other words, the position of the woman in the broken marriage must be investigated in order to ensure that the woman and the children are not prejudiced. And the following:

1. (2) the revision of the law of matrimonial property, with particular reference to the Matrimonial Affairs Act, the status of the married woman and the law of succession in so far as it affects the marriage parties.

I believe I gave these instructions even before the hon. member for Houghton had thought about asking me to take immediate steps. For that reason this part of her motion is, in my humble opinion, completely unnecessary. However, I do want to concede that she has given us the opportunity to discuss the legal status of women in general. It will be understood that I, as the Minister who gave this instruction to the Law Commission, cannot adopt any standpoints today in connection with the position of the modern woman because, I shall subsequently together with the Government, have to accept certain proposals of the Law Commission, while other proposals will have to be rejected. If I were to tell them at this stage already which line of reasoning I advocated, I would be making the task of the Law Commission particularly difficult. The hon. member for Houghton will, therefore, pardon me if I do not adopt a standpoint as she would like me to do.

I heard the hon. member ask me, in her usual interjectory manner: “What is coming?”, and for that reason I want to avail myself of this opportunity to say that I am aware of certain disabilities in the legal status of women and that we sympathize with this. We shall eliminate these wherever we possibly can and we have in fact already done so. I want to tell hon. members that the position of the woman under Roman-Dutch law was not a position of inferiority. The woman was indeed inferior, in status, but that was as as a result of the fact that under Roman-Dutch law the woman occupied a special position. Normally, she was the woman in the home. She was the one who had to keep the pot boiling, rear the children and keep the family ties unbroken, while the husband was the person who went out. Our legal system has not been built up on a basis of disrespect for the woman. She has been regarded as the jewel of the family and that is why it was laid down that she had to adopt the domicili cum of the husband. The reason for that is obvious. The husband worked; he was the breadwinner and for that reason he had to decide where they were to live. It is only right that she has had to go where he goes. In the case where the wife was the breadwinner, I can assure hon. members that the husband would quite automatically have gone where the wife had to go. There were no conflicts in marriages under Roman-Dutch law, and the same applies in respect of children. As far as legal authority is concerned, there must be one authority, otherwise one is not building up a marriage, but breaking it down. For that reason it was determined that paternal authority should be the authority that protects the woman and children. For that matter, the husband’s authority had to be final so that differences would not arise which would alienate the two parties in the marriage but so that it would in fact be able to keep them together. I could continue to demonstrate to hon. members that what are regarded as legal disabilities today are in fact protective measures designed to strengthen the particularly important foundation stone of marriage. That was in fact the position.

I want to thank the hon. members who contributed to this debate for contributions which were positive in many respects. In particular I want to thank the hon. members on this side of the House, i.e. the hon. member for Ermelo, the hon. member for Brakpan and the hon. member for Barberton, for their contributions which showed that they have insight into the legal position of the woman. I also want to mention with great appreciation the contribution made on the opposite side of the House by the hon. member for East London City. He demonstrated to us that he obviously knows a great deal about this branch of law. In my humble opinion the proposals made by the hon. member are proposals which definitely deserve consideration by our Law Commission which is dealing with these matters. The hon. member for Edenvale showed that he is an authority on the legal position of the Black woman. He indicated that there were certain matters which had to be investigated. If the hon. member will permit me to do so, I shall come back to that again at a later stage. On the part of the Progressive Party, we had a speech from inter alia, the hon. member for Pinelands.

I must say I think that the hon. member for Pinelands went astray. If the hon. member will permit me to do so, I want to tell him respectfully that in my opinion he failed to grasp the point. He delivered a sermon here, a sermon which was not relevant, although it was greatly appreciated. The hon. member made one point when he spoke about the regulation of influx control. I want to tell him that he knows that there is a regulation in his own constituency, i.e. in Pinelands, in terms of which a Bantu woman may not stay overnight in that area.

No, you are wrong.

Am I wrong? I understood that Black people were not allowed to stay overnight in Pinelands.

They are allowed to do so.

Are they? Must they obtain a special permit to do so? I am certain that, when I asked the hon. member about it during his speech, he said: “They are not allowed to stay there.” Can he tell us what the real position is there?

Women are allowed to stay there.

I am afraid that those people in Pinelands experience certain disadvantages which are not experienced elsewhere. Is that correct?

I really do not know.

The hon. member has never yet taken up the cudgels for these people. Nowhere, neither with the municipality nor with anyone else, has he taken up the cudgels for the Black people and Black women of his particular constituency. If he examines the position, he will find that specifically in Pinelands they suffer from a certain legal disability which does not apply elsewhere.

As far as the hon. member for Bryanston is concerned, I must say that he made an extremely political speech, a speech which showed that he was, to a great extent, irritated by certain other hon. members in the House. As a contribution to this debate, his speech was not a very substantial one. As far as the status of Bantu women in Bantu law is concerned, I am of the opinion that this is one of the aspects of their lives which can best be regulated by themselves. What happened here, in fact, was that a number of the hon. members simply demonstrated to us here how complex the personal status of a Bantu person in general is. This is as a result of the fact that, at the same time as he is living in his tribal context, he falls under the legal system of the White people when he comes to take up employment. Now, people such as the hon. member for Houghton want to make the legal status of the Whites applicable to him. I am of the opinion that the motion moved by the hon. member this afternoon ought not to be accepted by us. I am of the opinion that I should not appoint a commission of inquiry as far as the rights of Bantu women are concerned. I feel that this is pre-eminently something in regard to which the Bantu people themselves should show us what legal status they would like to accord to their people and to their women so that one can take into account the ancestral traditions, the tribal context and the beliefs and superstitions which exist among some of these people and about which I may perhaps know very little but for which, may I just say this, I have great respect. In my short life-time I have discovered that many of the customs of the Bantu people, customs which might appear childish to us, are in fact very sound and very good customs, customs they have evolved within their own tribal context, within their family context and within the milieu of their own administration of justice.

But not in the urban areas.

Sir, now the aunty, the hon. member for Houghton, is at it again with “urban areas”. The urban Bantu is merely a projection of the Bantu in the homelands. They are still Bantu people and they bring their customs with them. If the hon. member were to visit the large Bantu townships, she will find that the people there still adhere to hundreds of the Bantu customs. Why then should I, in this White Parliament, institute an inquiry in order to tell them what the status of Bantu women should be? In terms of our policy, that is what the Bantu leaders are for. They themselves must determine the status of Bantu women and then inform us. If it should then appear to be necessary, we shall pilot legislation through for them here. The hon. member for Houghton wants us to go against the wishes of the Black people drafting laws, such as those which are applicable to Whites, for them in order to accord them a certain status. The point I want to make is that, if I should draft a law for them, I shall only do so after I have consulted them. The question of their status happens to be one of the things in respect of which they will know better than I what has to be done.

Business interrupted in accordance with Standing Order. No. 32 and motion lapsed.