House of Assembly: Vol115 - MONDAY 11 JUNE 1984
as Chairman, presented the Report of the Select Committee on the subject of the Water Amendment Bill [B 98—83], as follows:
House of Assembly.
4 June 1984.
Report, proceedings and evidence to be printed.
Water Amendment Bill [B 103—84] (Select Committee) read a First Time.
Mr Speaker, I move:
Mr Speaker, just before I discuss the Bill before us, may I take this opportunity of wishing the hon the Leader of the House a very happy birthday. I hope that we shall see some improvement both in his leadership of the House and his leadership of the SATS generally.
It must be his eightieth birthday! [Interjections.]
Having craved your indulgence in this regard, let me immediately proceed to the discussion of this Bill.
The Bill has occupied a great deal of the time and attention both in this House and outside ever since February of this year when it was first introduced. Hon members will recall that it was referred to a select committee before Second Reading and that this Bill which is before us us emanates from that select committee. We have come now to the final stage of the debate on this measure. It is well known that the official Opposition opposed the Second Reading of the Bill and that we also moved a number of amendments during the Committee Stage none of which was unfortunately acceptable to the hon the Minister.
Inter alia, the Bill prevents certain agreements being ratified in law if either of the parties concerned does not comply with certain basic requirements. Those agreements do not have the force of law and access to the courts is denied including the industrial court. In a nutshell, this provision strikes at freedom of contract in respect of both employers and workers.
Let us be frank, Sir. We are not concerned in regard to these provisions with employers’ bodies. We are talking about the unions—very few of them—and obviously it is against those unions that this Bill is directed.
In the second instance, the Bill requires details of all agreements at plant level and, as a result of the deliberations in the select committee, certain improvements were effected, for example, the onus no longer rests on the employer and employee body but only on the employer. The time period is no longer 30 days but 90 days. While the penalty for non-compliance has also been reduced, it remains a criminal offence if particulars of these agreements are not submitted within the specific time.
In the third instance, it transfers the appeal from the industrial court back to the Minister and, furthermore, widens considerably the discretionary powers of the Minister to include “matters in the public or national interest” whatever those may be.
Our arguments have rested on two main grounds. We have stated that the Bill is premature, ill-timed and halfbaked. The reason for our argument is simply that the report of the National Manpower Commission , a very lengthy and full one, deals among other things with the whole question of collective bargaining as well as the whole question of registration in regard to its desirability or otherwise and, if so, what the form of that registration ought to be. The Government has called for representations on this report and they have also promised to issue a White Paper which, I assume, will only be available later this year.
The second reason why we voted against the Second Reading of this Bill is that in our view certain of its clauses are contentious and are conductive rather to conflict than to labour peace. We listened very carefully to the remarks of the hon the Minister both in his reply to the Second Reading debate and during the Committee Stage and, as far as I can ascertain having read his remarks again, his only justification for this legislation at this time, despite our arguments, is firstly, that we must have discipline in labour relations. The fact remains that there is nobody in this House who disputes that fact. In debates both in the past and at present we have made it very clear that discipline is of paramount importance in the labour field. This argument of the hon the Minister, therefore, is not one which instils confidence in regard to the passing of this legislation at this time.
The hon the Minister also went to great pains to stress the fact that certain trade unions that had complied with all the requirements were complaining. Their argument was that they had met the requirements and they wanted to know why certain other trade unions had not done the same. They felt this was unfair. I want to ask the hon the Minister where these unions were when Blacks were denied access to collective bargaining. There was a complete split in the work force. They were not bound together in terms of their rights as workers, but rather in regard to their rights as Whites or Blacks. Where were those trade unions that complained to the Minister when police harassed and arrested trade union leaders, visited their offices and took away their financial books and records?
When one considers the favourable developments that have taken place in labour relations over the past few years, with more and more unions fitting into the existing and changing structures, one cannot see any urgent reason for legislation at this stage. I nevertheless want to warn the hon the Minister, not arrogantly or in any way to suggest that we know better than he because we are aware of the expertise, knowledge and experience of his department—not to wreck the excellent developments that have taken place in recent years with unnecessary and ill-conceived legislative action. If there is the slightest suspicion, even if it is unfounded, that by the action of the Government it is abandoning its commitment to the encouragement of self-government by interested parties in industry, this can only spell serious trouble where it is least desired. The labour field is not only sensitive; it is also volatile and any ill-timed action can throw it into turmoil. The hon the Minister and his department therefore must tread warily and watchfully over the next few months. They must not allow the decline in strike actions to lull themselves into a sense of false complacency and false security. If and when the upturn comes, we may be faced with a much more militant labour force and we shall need all our skill and wisdom and the minimum of legislation in order to maintain peace and stability.
For the reasons outlined both in the Second Reading and again today we are left with no alternative but to vote against the Third Reading of the Bill.
Mr Speaker, I think we conducted a well-considered debate on the Bill at present before this House. We are now nearing the end of it and I feel that although I have a certain degree of sympathy for his arguments, the hon member for Pinelands failed to convince us. I feel that by means of this Bill we in South Africa are trying, as far as labour relations are concerned, to move away from tension and my appeal is that we should strive progressively towards more relaxed relations in the field of labour and not lose sight of the dynamics of modern labour relations. I think that by means of this Bill we shall be moving in that direction when we eventually apply it in practice.
I think that certain cardinal guidelines must be laid down. What we on this side of the House are striving for, is consultation with all employees and, as far as possible, obtaining their co-operation and support for adjustments in extablished labour practices. I am convinced that a guideline which will have to be adopted in practice is that there must be no coercion of any worker or group of workers to force them to accept adjustments. There should rather be a pragmatic approach in the search for ways and means of accommodating each other’s wishes satisfactorily or of eliminating any apprehensions that may exist. Another guideline is the maintaining of fair labour practices at all levels and among all workers and, in conduction with that, giving specialized attention to matters affecting labour relations.
During the Second Reading, in the Committee Stage and in what the hon member for Pinelands has just said, misgivings and anxiety voiced regarding the fact that in future, appeals against decisions of industrial councils will be heard by the Minister and not by the Industrial court, as is the case at present. Anxiety was voiced regarding depriving the industrial court of that right. It is being claimed that this step was politically inspired, with the Government’s decentralization policy in mind; that on appeal consultation with industrial councils and interested parties should be more extensive; that the industrial court is able to weigh up evidence thoroughly and reach a decision on the merits of the case; that in the few months since this function was entrusted to it, the industrial court has not had adequate opportunity to prove itself in any direction, and, in conclusion, that it is not desirable for the Minister to have too much power. I believe that when the Bill is implemented in practice, these doubts may be eliminated.
The anxiety was also expressed, arising from further amendments as embodied in the Bill, that the Minister was being given too wide a discretion to exclude areas from the application of agreements, that collective bargaining was being dealt a heavy blow by way of the amendments, that the amendments would lead to unfair competition, that the survival of industrial councils would be threatened by this and that in the case of orders the Minister would not consult the employees, I think that when the Bill is implemented in practice, these apprehensions will also disappear and that the workers of South Africa will see that the Government has their interests at heart.
One can take a look at the comments received from divisional inspectors who have to apply this Bill in practice. If one does so, one finds that they are in favour of the amendments we have effected here. The people who struggle with the practical side of this matter every day realize that these amendments are essential.
In conclusion, I want to say, as I did in the Second Reading, that I believe that as a result of this debate, but also on the road ahead, urgent attention will have to be given to the findings of the National Manpower Commission and that it is probably as well for the sake of information, to have this placed on record here today. It may be mentioned that one of the most important findings of the National Manpower Commission on the matter of the registration of labour organizations reads as follows, and I feel that we should place this on record and give urgent attention to it in future:
If it is borne in mind that in many cases new trade unions have inexperienced and untrained office-bearers and officials and are still trying to find their feet in the field of labour relations, it is understandable that the Department of Manpower is experiencing problems in ensuring that the basic statutory requirements are met. I believe that we may be anticipating the National Manpower Commission in this connection, but bearing in mind that we want to normalize labour in South Africa, cultivate sound relations and facilitate the task of the department as well, this Bill deserves our support. I think that the department is making every effort to bring about compliance with the basic statutory requirements. For that reason it is our task to come to this House with a Bill of this nature in order to build and maintain labour peace in South Africa. I therefore take pleasure in supporting the Third Reading.
Mr Speaker, because one can now look back on the Bill, there are a few aspects which I feel it is important to bring once again to the attention of this House. One of the aspects deserving of consideration is the fact that when one studies the report of the National Manpower Commission, time and again one finds it stated that the new legislation which followed the various reports of the Wiehahn Commission should now, in fact, be afforded an opportunity to develop so that one can be in a better position to assess it. One must gain a better perspective in this regard and then one can return to Parliament to make recommendations in connection with difficulties or points of friction.
As far as the legislation is concerned, the CP agrees with the first part in particular. Trade unions have over a protracted period been requested to register, and efforts have been made over a protracted period to discipline those employees’ unions that do not want to register in terms of the Act and operate in accordance with it in other ways. This did not work, however, and now the Minister is trying this. When agreements are entered into between unions that are not properly registered, it is obvious that the existing legislation is not effective enough and that it must be amended to bring those unions within the ambit of the legislation. That is why the CP welcomes this obligation, this tacit obligation, resting on a union to register in terms of the Act.
The CP is not happy about the fact that in terms of section 5, appeals will again in future be dealt with by the Minister. We have already debated this at length. We do not think it is good legislation. The Minister is being placed in a difficult position. He himself has admitted that he does not want this work. It is not only additional work for him; it may cause him unnecessary embarrassment. The handling of appeals should rather have been left to an impartial court. However, this point does not affect the crux of the legislation. As far as we are concerned, the crux lies in clause 3 and in the extension of the Minister’s discretion. We accept that and we shall therefore support the Third Reading of the measure.
Mr Speaker, we do agree with the hon the Minister when he says that there is a need to regulate trade union activities in South Africa. It is a principle which we have had in South Africa for decades, for centuries, that where one has organizations operating in the public sector—and by public sector I mean involving shareholders—legislation is introduced to control any excesses on the part of organizations operating within the free enterprise system. Also within the framework of our labour legislation we believe it is necessary to have legislation to control excesses on the part of labour organizations, organizations like trade union. It is the same with companies. It is incumbent upon any company operating in South Africa to register with the Registerar of Companies in order that it may be ensured that the company meets its commitments to the community. By that I mean that they must not use methods which are unacceptable to society. So to this extent we agree with the hon the Minister that it is necessary to regulate these relationships and that there should be an instrument in law to make it compulsory for trade unions to register or to subscribe to the minimum required information. I have never been able to distinguish between minimal requirements and actual registration. I think it is actually only a question of categorizing rather than differentiating in principle. However, we are firmly convinced that it is in the interest of members of trade unions and in the interest of the relationship of trade unions to society and between trade unions themselves that minimum requirements for registration be compulsorily imposed on all trade unions operating within South Africa.
But having agreed with the hon the Minister on what the problem is, we disagree entirely with him that the solution proposed by this legislation is going to do what it purports to do. The hon the Minister believes that the advantages will be greater than the disadvantages, but we believe exactly the opposite, namely that the disadvantages will be greater than the advantages proposed in particular by the new section 31 A. As we have indicated to the hon the Minister the reason for this, I believe and as the National Manpower Commission also believes, is that you should have a positive coercive step and not a negative principle involved in attempting to get people to register.
This Bill makes provision for unregistered trade unions to go about their business, to enter into contracts with employers, to negotiate on behalf of their members, to obtain fees from their members to finance their activities , only to find at the end of the day in the event of a dispute that that effort and money was entirely wasted as an investment because the trade union or the employer organization will not be allowed in terms of this Bill to take their dispute to court. We believe that is the wrong way round and that it will in fact cause more discontent than it will solve problems. We are on record here as saying to the hon the Minister—and I hope our predictions are incorrect—that in the final analysis those trade unions will resort to strike action, which in itself will be illegal. We are, leaving them no alternative. We are driving them into a corner and when they are in a corner and have nothing to lose, they will go for illegal striking. We say this because of the record of this kind of organization. Those who refused to register refused to do so because we believe that they have something to hide. Because they have something to hide and their credentials are not clean and bona fides, they refused to register. If the hon the Minister thinks that the provisions of the proposed section 31A are actually now going to persuade these people to become responsible and to accept the responsibility of registering, I think he is mistaken. I certainly hope that we are wrong and that the end result will be that more of these unions will actually register, but I think that is a forlorn hope.
As far as the question of appeal to the industrial court is concerned, we also feel very strongly about that indeed. During the Committee Stage I asked the hon the Minister what happened to the third party when the hon the Minister and the industrial council agree to extend an exemption or to withdraw it. He can only appeal to the man who made the original decision he is appealing against. Although I know that the hon the Minister of Manpower is a man of steel and goodwill, I still think it would be difficult for him actually to argue against himself when he has made a decision. For that reason we believe it is necessary that a judicial organization such as the industrial court should be there to act as the objective arbiter between the executive and the parties most affected by it. The hon the Minister has told us that it is merely a matter of taking into consideration the national interests and to facilitate the decentralization policy that he has these powers to grant exemptions and to withdraw it, and that should he have the power to grant the exemption he should also have the power to withdraw it. With that part we agree, namely clause 5(l)(e). We have no difficulty with the Minister’s executive authority to extend or withdraw an exemption from industrial council agreements, but what we do have difficulty with is the question of appeal against the Minister’s decision. We believe clause 5(l)(a) and (b) should have been scrapped, as was proposed by the CP. I think that would have made very good judicial sense. We feel, as do the hon member for Pinelands and his party, that this Bill is inappropriate and inopportune. We should have waited until we have had all the responses to the report of the National Manpower Commission. In fact, I feel that we should have followed the majority recommendation in that report that we should have minimum requirements for registration which would be enforceable by law. As a principle I think that would have been better. I also think that we should definitely have waited for the hon the Minister’s White Paper. Now that we have this amending legislation the hon the Minister has no option but to accept the principle that he has adopted here. He cannot really consider the evidence or the response and, therefore, when the White Paper is eventually drawn up, the hon the Minister will find that he in fact has to recommend what is contained in the legislation. To a certain extent that would probably act as a discouragement to people to submit responses to the report if the Government takes pre-emptive action before all the evidence has in fact been received. There is obviously very important evidence that has to be received. We are of the opinion, as are organized commerce and industry and a large number of unions, that we should have waited for all that available information.
Because we believe very strongly that those two principles contained in the Bill are totally inappropriate and will not do what they are supposed to do, we will be voting against the Third Reading of this Bill.
Mr Speaker, to start with I should like to thank all hon members for their contributions during the course of the debate. I also want to extend a further word of thanks to the members of the select committee. I did, in fact, do so during the Second Reading debate, but I again want to convey my thanks and appreciation to them for the time they devoted to this matter.
When this legislation came before the House, the hon member for Pinelands objected to our proceeding with it, and I agreed to have it referred to a select committee. I felt that it was very necessary, particularly in the sensitive labour field, not to have any misunderstanding about what was being envisaged in terms of legislation. In the light of comments in the Press and elsewhere, I formed the opinion that motives were being ascribed to this legislation which were not to be found anywhere in the legislation itself. The intention of the legislation, the effect it should have, was also misinterpreted in many cases.
There are a few principles to which one must adhere firmly in the labour sphere. A principle that is important to everyone, employees in particular, but equally so to employers, is certainty or security. Loose ends should not be left dangling. A decision about a matter should be taken, the decision being valid for a certain period. For as long as a matter is pending, it very frequently lends itself to exploitation, to the creation of unrest and misunderstanding. What are we now doing with this legislation? If we take the one main objective into consideration, what is the effect going to be? The effect is going to be the greater realization of the objective of having trade unions and employer organizations moving closer to the ideal of total registration. The question is how one should achieve this. One could firstly prosecute people who have not registered or do not meet the minimum legal requirements. I do think, however, that my predecessor in this department adopted a very sensible course in the past, because firstly both the Wiehahn Commission and the National Manpower Commission recommended that registration be an absolute prerequisite if a trade union wished to make use of the legal machinery for settling disputes. We know what subsequently happened. In Part 5 of the report the Wiehahn Commission said: “Careful! There has been some resistance; etc.” It was said that trade-unions should comply with certain minimum requirements and that if they did, certain portions of the machinery for settling disputes would be available to them. The labour field, however, is never static, but rather dynamic. There is always some development. What, however, has happened here? People who do not comply with legal requirements in any way whatsoever are entering the collective bargaining field. In other words, they are making use of collective bargaining and of the privilege of being able to negotiate without being prepared to shoulder the responsibilities that go hand in hand with that privilege. They do not, in other words, want to comply with the minimum legal requirements. Negotiations with employers and trade-unions take place on a daily basis, and if there is one thing that creates unrest in the labour sphere it is when people of whom one knows nothing come to see one and want to negotiate. The department, and in many cases employees in those specific factories themselves, do not know what those peoples’ bona fides is. They could simply be agitators or people with motives other than those of promoting the interests of the employees. They could therefore be people with alien motives who want to slip in through the backdoor in order to achieve certain political objectives by using the established machinery in the labour field.
What are the requirements laid down for people who want to enter the field of collective bargaining? In no way does this legislation deny anyone the right to participate in collective bargaining, provided the basic requirements laid down by the legislation are complied with. Those organizations can then be identified and be compelled to keep proper records and to report back to their members annually about what is being done with their membership fees. They would also be compelled to draw up a constitution in which their objectives are spelt out so that people who want to join such an organization can see what its objectives are. If such an organization or trade union were also to move in spheres other than the labour sphere or those defined in its constitution, its members could know that the organization was engaged in other activities and was not serving the workers’ interests. In other words, here we are granting protection to the workers and to members of trade unions by virtue of the fact that trade unions are being subjected to discipline and must adhere to certain guidelines.
The hon member for Durban North remarked that there could only be one reason why people would not want to comply with these requirements and that would be if they had something to hide, something they did not want to make public. If one wants to have unrest in the labour field, one must allow people complete freedom of movement in the labour sphere and also allow them to enjoy the privileges of the system. If they are people who do not want to make their motives public, it is going to cause trouble. In other words, in so far as this affects collective bargaining and the rights and privileges of the workers, the effect of this legislation will be to protect the workers against trade-unions that may possibly want to exploit them and lead them astray. It gives the workers the certainty of being able to know with whom they are dealing.
What is more, if trade unions comply with the basic requirements of this legislation, they are given access to bargaining machinery that is not available to trade-unions that do not comply with the requirements of the law. It is therefore a sort of “carrot-dangling” approach. It is the tendency, however, for unorganized groups to negotiate agreements on behalf of workers without there being any record of those groups. This tendency is becoming increasingly prevalent and is eating away at the foundations of our established trade union movement.
The hon member for Pinelands asked where those trade-unions were when the Blacks did not have certain privileges. It was trade unions such as Tucsa, for example, which have always been in favour of having the rights extended to Black workers and other workers of colour. Today they are in the fold. They are working within the system. They are orderly and responsible. So must I ignore them because there are a few organizations telling Parliament that they pay no heed to its legislation and will go on doing what they want to, that they will drive on the right side of the road and, if necessary, even upside down? Surely we cannot permit that. The whole point of departure of this legislation is to bring about order, discipline and security for everyone. Only then can one have an orderly system. One can only have an orderly system if everyone plays by the rules.
I want to emphasize that nowhere in this legislation is a trade union’s bargaining ability or the opportunity for bargaining in any way being watered down. That is a very strong point I should like to make in this connection.
Hon members again said in the debate that I should have waited until comments had been received on the recommendations in the National Manpower Commission’s report and until the Government had released a White Paper on the matter. What I am doing here is exactly what Wiehahn and the National Manpower Commission recommended; on the contrary, their recommendations go further. They actually recommend that full-fledged registration be laid down as an absolute requirement. We are not even going that far. We are moving in that direction, but not at the recommended rate. We are adopting the carrot-dangling approach.
What then is the point of having representations called for?
If the hon member had read the report he would have seen that the question of registration and that of complying with minimum requirements are not matters that are actually in dispute. The commission did, in any event, recommend this. There are few people who are opposed to it. Wiehahn recommended it. [Interjections.] It is in the Wiehahn report. It is basically correct, is it not, that one is dealing with a system in which one advocates discipline. It is such a fundamental and basic prerequisite for an orderly dispensation that the parties to a system of negotiation should at least be registered that I do not need a commission or comments to tell me that this is the gist of order and security in the system. It goes without saying. It is the full ABC of the system. I also want to add that the Government is not prepared to react merely by way of a commission, White Paper or comments. Surely a Government must react. If a Government has identified some essential aspect, and is convinced that it is essentially and basically right, it will come to the House with the necessary legislation, and that is also why I am now doing so. This also meets with the overwhelming support of those in the labour sphere, including the employers.
The next point I want to react to involves the question of appeals to the industrial court in connection with industrial council agreements being transferred back to the Minister. I want to point out once again that the effect of this legislation will be that we shall be making it a little easier for the small entrepreneur, the tyro, who is also part of the informal sector, giving him a little breathing space in which to grow stronger and be in a position to carry the full weight of whatever industrial council agreement will be applicable to him. So we do have our feet firmly in the practical sphere. These small entrepreneurs are found in all the four corners, particularly in remote areas. If we make an industrial council agreement binding on such a small entrepreneur, he comes and tells that he will have to shut down his undertaking. He does not come along with any kind of story, but with his audited statements. He says he cannot comply with the requirements laid down, that he will have to shut down his undertaking and that his five, 10 or 15 employees will be jobless. He asks us whether we think he can go on on that basis. He then tells the Minister he is not part of the Industrial Council, but that the Industrial Council agreement has been made applicable to him and is binding. He points out that he never had any say in it. The small businessman is not a member of the industrial council, nor can he normally afford to be a member of such a council. Must the Minister now tell him to go to the industrial court? The person who exercises these virtually bureaucratic powers by making an agreement, in which certain people were not involved, applicable to those people as well, should after all be the person who listens to their complaints when they contend that he should reconsider the agreement that he made applicable to them since it is to their detriment and might mean the end of things for them. I think it is fair, in fact essential, and we are continually receiving a tremendously large number of representations in this regard.
Nor is exemption something of any permanence, being granted solely for the duration of the agreement. When the agreement comes to an end, and must again be renewed, the exemption also lapses. It is therefore not an exemption that is in force ad infinitum. The Minister can also partially exempt an undertaking from the provisions of an industrial council agreement or he can impose other requirements as if they were imposed by the industrial council. The Minister may, for example, provide that for the first year an undertaking perhaps only needs to pay 60% of the minimum wage that is laid down, and in the second year perhaps 80%. The idea is to give the small entrepreneur a chance to get going until such time as he is financially strong enough to meet those obligations too.
Mr Speaker, the hon member for Overvaal spoke of an appeal to the Minister. I agree with what he said, and I thank him for his contribution.
The hon member for Brakpan said that they supported the legislation, except for the question of appeal to the Minister instead of to the industrial court.
The hon member for Durban North said he supported the idea of order in the labour sphere and expressed the hope that I would be proved correct in saying that this measure would bring about more peace and not more unrest. I am absolutely convinced of the fact that the measure will bring about more peace in the labour sphere.
Mr Speaker, in the case of exemption from an industrial council agreement, we must first determine what the agreement embodies. It deals with the conditions of service of employees, inter alia how grievances should be settled and also other procedures. Basically, however, what is involved is the remuneration of employees. Let us look at the case of the small entrepreneur and take special note of the differences between the respective regions. One cannot, after all, make the same minimum wage applicable, for example, to a cabinet-maker operating in the PWV industrial area and one who has a small factory on the borders of the Eastern Transvaal. The person on the border does, in any event, have a disadvantage as far as transport is concerned. He is also far removed from the market place and perhaps does not have the same quality of skilled workers that the cabinet-maker on the Rand has, even though the employers of both undertakings may be skilled workers. So that is the question that is put, and it is not purely a legal question, but also a socio-economic one that one has to give an answer to. Since our department is continually involved in these matters and is therefore conversant with the circumstances prevailing in the various areas, particularly because we have direct contact with the people, I really do believe that we are better equipped to judge what is happening on the labour front, and what the real needs and problems are, than a court, which has to answer questions of that nature. In recent times when the courts had to decide, experience taught us that this gave rise to widespread dissatisfaction, not as far as the courts as such were concerned, but with regard to the procedures and the long drawn-out preliminaries that go hand in hand with that. The small entrepreneur does not see his way clear, as far as legal costs and so on are concerned, to being subjected to these processes. We therefore believe that these amendments will be to the benefit of the small undertaking in particular and they will help to stimulate economic growth and development. We also trust that this will, in particular, contribute towards the creation of job opportunities.
Upon which the House divided:
Ayes—79: Ballot, G C; Blanché, J P I; Botha, C J v R; Botma, M C; Breytenbach, W N; Clase, P J; Coetzer, H S; De Jager, A M v A; De Klerk. F W; Du Plessis, B J; Du Plessis, P T C; Durr, K D S; Du Toit, J P; Fick. L H; Fouché. A F; Geldenhuys, A; Geldenhuys, B L; Golden, S G A; Hartzenberg, F; Heunis, J C; Heyns, J H; Hoon, J H; Kleynhans, J W; Koornhof, P G J; Langley, T; Le Grange, L; Lemmer, W A; Le Roux, D E T; Le Roux. F J; Ligthelm. N W; Louw, E v d M; Louw, M H; Malherbe, G J; Marais, P G; Maree, M D; Meiring, J W H; Meyer, W D; Morrison, G de V; Odendaal, W A; Olivier, P J S; Pieterse, J E; Poggenpoel, D J; Pretorius, P H; Rencken, C R E; Schoeman, W J; Scholtz, E M; Schutte, DPA; Scott, D B; Simkin, C H W; Snyman, W J; Steyn, D W; Streicher, D M; Terblanche, G P D; Theunissen, L M; Uys, C; Van Breda, A; Van den Berg, J C; Van der Merwe, C J; Van der Merwe, G J; Van der Merwe, W L; Van Eeden, D S; Van Heerden, R F; Van Niekerk, A I; Van Zyl, J G; Van Zyl, J J B; Vermeulen, J A J; Viljoen, G v N; Visagie, J H; Vlok, A J; Volker, V A; Weeber, A; Welgemoed, P J; Wentzel, J J G.
Tellers, S J de Beer. W J Hefer, W T Kritzinger, C J Ligthelm, L van der Watt and H M J van Rensburg (Mossel Bay).
Noes—23: Andrew, K M; Bamford, B R; Barnard, M S; Bartlett, G S; Burrows, R M; Dalling, D J; Gastrow, PHP; Hardingham, R W; Miller, R B; Moorcroft, E K; Olivier, N J J; Page, B W B; Raw, W V; Rogers, PRC; Savage, A; Schwarz, H H; Slabbert, F v Z; Suzman, H; Swart, R A F; Tarr, M A; Van der Merwe, S S.
Tellers: A L Boraine and A B Widman.
Question agreed to.
Bill read a Third Time.
Mr Speaker, this morning I want to level an accusation at the hon member for Berea, namely that he is not honouring an undertaking by the hon the Leader of the Opposition. The hon the Leader of the Opposition gave the undertaking that his party would act constructively in this House. He said they would criticize when criticism was justified, but that they would always adopt a constructive approach in this House. The hon member for Berea has have allowed a golden opportunity to honour that undertaking to pass him by. The Government’s actions in this amending Bill, particularly as far as clauses 1 and 12 are concerned, are completely justified and fair in the circumstances that have arisen. In the first place, let me put it like this. Before the adjournment on Friday I explained how a problem had arisen with regard to uncertainty in law owing to the finding in the Ingawavuma case. The consequences of the Ingwavuma finding were basically twofold, namely the consequences directly relating to the circumstances in respect of Ingwavuma, as well as an indirect consequence in the sense that new light was cast, in the first place, on the requirement in connection with the power the Government has in terms of section 25 of the Act of 1927, and more specifically in connection with the procedure for consultation laid down in other sections of legislation.
It is that indirect consequence which resulted in uncertainty, and it lay in the fact that several proclamations were under suspicion because it was not clear whether they complied with the requirements which, according to the new light which had been cast on the matter, were laid down as far as consultation was concerned. We now have the situation that several regulations could possibly be invalid, proclamations that have nothing to do with Ingavuma. This the problem the Government had to resolve.
Indeed, the hon member for Berea said in his speech:
I want to illustrate that the Government has in fact complied with that requirements set by the hon member for Berea. The problem that came to light was that there may be a technical error in quite a number of proclamations promulgated since 1972 and up to the date on which new light was cast on the matter.
One out of a few possible methods had to be adopted to make good that deficiency. In the first place, the Government could have gone back and renegotiated all those proclamations, consulting people ex post facto on proclamations promulgated 12 to 13 years ago. This would quite obviously be ridiculous, because by definition one cannot hold consultations ex post facto after the decision has been taken. This surely goes without saying. Therefore that was not a feasible option. It was not open for another reason too, in the sense that the mere procedure of renegotiation would create a problem regarding juristic actions taken, in their turn, by bodies affected by or established by virtue of those proclamations. That was, therefore, not a practical proposition.
The only other option open was to say that that latent defect which could possibly exist in those proclamations was deemed not to exist. That defect was thereforce rectified with retroactive force. In principle one does not like laws with retroactive fore. However, the circumstances here are that the light which the Ingwavuma finding cast on the requirements of those proclamations was in fact of retroactive effect. Light was only cast on the matter in 1982 and resulted in our being able to judge, retrospectively, that those proclamations could possibly be invalid too, and for that reason it was inevitable that whatever remedy was applied would have to have retroactive force.
I want to point out another very important point in this regard, namely that it should be noted that in clauses 1 and 12 there are several references to the date 18 June 1982. No proclamation issued after that date is affected by this. What is the reason for this? The reason is that as soon as new light had been cast on this matter, the Government took steps to ensure that every proclamation promulgated after that date met those requirements. The Government therefore proved its bona fide in this matter by ensuring that every proclamation promulgated after that date met those requirements. Therefore there has been no effort on the part of the Government to escape the essence of either the direct or even the indirect consequences of the Ingwavuma case. The Government has totally accepted the court’s finding. The hon member for Berea said that in principle, this action by the Government means that “Parliament is being asked to legislate for a lie”. That is the language used by the hon member, and the ever helpful hon member for Bryanston in turn defined it as “legalized fraud”. But surely that is in no way the character of this legislation. The hon the Minister and his department went out of their way to investigate and rectify the entire matter. The hon member also talked about “having regard to the rights of all the people concerned”. Of course that happened here. There are rights established by proclamations promulgated a decade ago and if those rights were to be placed under suspicion now, this would affect the rights of thousands of people. Therefore the correct course to adopt is to reaffirm those rights that have been established during these 12 years, and that is all that is being done here.
The hon member for Berea wanted to know whether the relevant persons were consulted about this legislation. But surely it would be ridiculous to consult them on this, because all this Bill involves is a technical rectification of the law. It has nothing to do with rights that have to be established or rights that are affected. With whom among those involved should the Government negotiate about this? It is surely ridiculous to suggest that there should be negotiations with those people about this particular legislation. What I also hold against the hon member is that there was nothing constructive in his speech. His alternative to the Bill was totally negative. He did not say how he felt we should tackle this very obvious problem. All he said was that we should negotiate, but he neglected to say about what, or with whom.
This brings me to the sort of behaviour we have become accustomed to from the official Opposition, the attitude that anything the Government does is wrong and should be made to look ridiculous without taking cognisance of what the intention of the Government is or of what the true facts surrounding the matter are. One can understand that the Opposition parties are delighted about the embarrassment Ingwavuma caused the Government. But actually this specific matter has nothing to do with that. It is merely an incidental, and indirect consequence of it. If the hon Opposition want to take pleasure in this, we have to put up with it, but when the Government seeks to act constructively in all good faith, they must not try to make it look ridiculous, particularly when they do not have an alternative suggestion. As far as this is concerned, I want to report the hon member for Berea to his leader. On several occasions during this session we have had a constructive approach from the official Opposition and as a result we have been able to make progress. Their arguments were such that one could listen to them. But here we are back to their old destructive attitude, and for that reason their arguments have no effect on us because we know they are merely being wilful.
Mr Speaker, I shall react more fully to the speech of the hon member for Helderkruin later on. I want to say at once, however, that his speech surprised me a little, not only because of the aggressiveness he displayed, but also because of his refusal properly to analyse the logical standpoint adopted by the hon member for Berea properly. He will not really be able to disagree with me that the statement made by the hon member for Berea and the words he used were correct, namely that what we are actually doing with the relevant clause is to give what is essentially an untruth, the sanction of legislation. The essential untruth lies in the fact that it is being said that negotiations are deemed to have taken place. This is the untruth, because there were not negotiations. What we are doing in the Bill is to give that essential untruth the sanction of legislation. The hon member for Helderkruin cannot, after all, object to that, because it is a fact.
The hon member accused the hon member for Berea of not being positive. That is not correct, because the hon member for Berea in fact said that with the exception of a few provisions we supported the Bill. The other provisions do not give us any problems, but we have fundamental objections with regard to this specific matter. The hon member for Berea spelled out our objections clearly and I shall return to them later.
The hon member made what I consider to be a totally incomprehensible statement. With reference to the question by the hon member for Berea as to why there had been no negotiations on this Bill, the hon member for Helderkruin said that would be ridiculous. I am sorry that we do not have the time, but perhaps we could return to this in the Committee Stage or in the Third Reading debate, namely how one can say that the proposal of the hon member for Berea that there should have been negotiations between the Government and the national States on this Bill, was ridiculous. It is beyond me to understand why, according to the hon member, that proposal was ridiculous. I shall return to that again later.
I also want to tell the hon member that we do not enjoy the Government’s embarrassment. As good South Africans we are obviously all affected when the Government makes unnecessary mistakes as it did in the Ingwavuma and Kangwane affair. We are then ashamed of the extent to which the Government acted incorrectly. It is not that one enjoys the embarrassment of the Government, one feels ashamed that this method is now being adopted in order to rectify the matter.
I should now like to deal with a few matters arising out of the debate thus far and with certain aspects of the Bill itself. A number of extremely important and fundamental standpoints came to the fore in the discussion of the Bill.
In the first place, I want to refer to clause 4 which deals with the enlargement of the quota. The hon member for Berea said that we welcomed this provision. We do not object to this; on the contrary we welcome the provision that the quota to which the Trust is committed in terms of the 1936 Act may be exceeded. I am glad that the hon member for Newton Park gave us a review of the history of that matter and the problems which arose in the implementation of the 1936 Act. In spite of the fact that 48 years have elapsed since the 1936 Act was passed, there have all manner of reasons why it could not be implemented. I just want to point out that the period is not 48 years, but that in fact, this has been going on since 1913. This promise was therefore made to the Blacks almost 75 years ago, and it has not yet been implemented. Sir, you will remember that it was stated in the 1913 Act that the restriction imposed on the acquisition of rights to land by Blacks outside the scheduled Black areas would apply until Parliament provided otherwise. This was stated in the Act itself. In that Act it was stated that Parliament had made provision for the appointment of a commission that had to report to Parliament within two years. The then legislator, Parliament, therefore realized that the provision made in the 1913 Act was totally inadequate to meet the needs of Blacks, and that was the reason for the promise that that restriction would apply until Parliament had made other provisions, acting on the recommendations of the relevant commission. The Beaumont Commission was then appointed in 1913 and reported three years later, not two years, owing to the outbreak of the World War. The hon member for Newton Park sketched the history of what happened then. At that stage Parliament was not prepared to incorporate the recommendations of the Beaumont Commission and the relevant committees in legislation. That was how matters stood until 1936. Essentially this meant that for 75 years we have been unwilling or unable to honour the promise made to the Blacks in 1913. That postponement, that inability or unwillingness has created a totally different situation in South Africa. If after 1913 we had been able to add the land recommended by the Beaumont Commission and by the relevant committees, the entire problem of the settlement of Blacks and the development of the Black areas would have taken a different direction. Well, those are the facts. It is pointless at this stage blaming ourselves or anyone else for this, but we cannot ignore the implications of what happened either.
Our standpoint in this connection is very simple. As long as those restrictions exist which prevent Blacks from acquiring rights to land outside those scheduled Black areas and the released areas—in other words, as the Act at present provides—and provision is not made in a normal way for the extension of land owned by Blacks, this Parliament and this Government has no alternative but to make further provision for land for occupation by Blacks, over and above the quota land. It is as simple as that. As far as this is concerned, this side of the House will support any measure providing for that additional land. In this connection I want to associate myself with what the hon member for King William’s Town and the hon member for Albany said, namely that it is not always necessary to expropriate land belonging to Whites if the primary objective is to improve the living conditions of Blacks and their occupation of land. Together with those two hon members, I want to ask that we reconsider this matter, particularly in view of the fact that, as we have seen time and again, land is purchased from Whites at extremely high prices, the Trust is not able to develop that land properly and the land is then leased to Whites for a nominal amount. What have we then achieved? I think we shall have to reconsider this state of affairs.
As the hon member for Berea indicated, we also welcome the provisions in clause 3, which provides for the cession of existing mortgages to the Governments of Transkei and Bophuthatswana. I want to go a step further, however. The standpoint adopted here by the hon member for Berea was that the Trust should transfer all its land situated within the borders of the national states to the government of the relevant states and should not wait until those states become independent before doing so. In this connection I want to emphasize once again that as the hon member for Albany indicated, where Blacks have freehold title to land, we shall certainly not be content with this House ever agreeing to those Blacks being deprived of that ownership of their land. Unfortunately this creation of scheduled Black areas and released areas gave rise to a number of fundamental fallacies and misconceptions which have totally dominated our political scene and policy for the past 40 years, and I am deliberately using the phrase “fallacies” and “misconceptions” that resulted from the 1913 and 1936 Acts.
The first basic misconception was that these Acts divided South Africa into a so-called White area and a so-called Black area. This in turn had further implications. This is an absolute misconception, because those Acts did not do that, and that was not the objective of that legislation. As a matter of fact, it is obvious that neither the 1913 Act nor the 1936 Act envisaged that Blacks should disappear from the so-called White area. In point of fact, both Acts accepted the presence of Blacks labourers on White farms. Limitations were imposed on the type of agreement that could be entered into, for example squatters, labour tenants etc. It was never the intention that Blacks would not work as labourers or be present on White farms outside the scheduled areas.
The same applied to urban areas. These areas were never involved in the 1913 or 1936 Acts. The 1913 Act expressly provided that it would not apply to urban areas. No restrictions were imposed on the acquisition of ownership by Blacks in urban areas prior to 1937. The whole idea that this Act drew that fundamental distinction and that two areas, namely a Black area and a White area were created in South Africa, is not correct. It was therefore the express assumption of those two Acts that there would always be Blacks outside scheduled Black areas. What is more, if one takes Blacks, Coloureds and Indians into account, the idea of a White area never had any validity. In 1913 and in 1936 it was never the intention that the legislation would affect the rights of residence and occupation of Coloureds and Indians in areas outside the Blacks areas. It is therefore totally incorrect to talk about a White area in South Africa. It was never the intention of the legislation and is in essence totally incorrect. A great deal of the Government’s policy is based on the concept of a Black area and a White area and this concept—although totally false—has unfortunately played a decisive role in the determining of policy during the past 30 to 40 years.
This misconception led to two further totally unfounded implications. One of these was that in the so-called White area only Whites would have political rights, and that Blacks were dependent on the Black areas only for the exercising of their political rights. It was not the intention as regards the 1913 and 1936 Acts that this should be linked to the matter of the participation or otherwise of Blacks in the central political decision-making process. There was no connection whatsoever between the two things. It is quite clear that after 1913, the Blacks in the Cape Colony retained their political rights, as laid down in the 1910 Act.
How many Blacks?
It is the principle of the matter. The fact is that the 1913 Act did not affect the political rights of Blacks in the Cape Colony at all. Act 12 of 1936, in turn, made special provision for the representation of Blacks in this Parliament.
Representation by Whites.
Yes, by Whites, but the point is that there was in fact representation of Blacks in Parliament. At that stage, only Whites could gain a seat in Parliament in any case, by virtue of the provisions of the 1910 Act.
Act No 12 of 1936 provided that the Black voters of the Cape could elect three representatives to the House of Assembly and two to the Provincial Council. What is more, that Act also provided that Blacks could elect four Whites indirectly to represent them in the Senate. The causal link that was created between the political rights of the Blacks and the scheduling of land was a total misconception. I want to tell hon members of the NP that it was this misconception that led to their inability to analyse and appreciate the political aspirations of the Blacks properly. They are paying the price today in the kind of attitude adopted by hon members of the CP, because the CP is building on that misconception adopted by the Government which, over the years, has been the fundamental principle of the Government’s policy with regard to the political rights of the Blacks, and also, indirectly, with regard to the Coloureds and the Indians. From that policy was born the concept that Coloureds and Indians do not have the right to participate in the exercise of political rights either because they are in the so-called White part of the country where only Whites have the right to exercise sovereign political rights.
The other matter that arose out of this is that Blacks could only exercise political rights in those areas scheduled for them. I have already indicated that this was not the intention neither in 1913 nor in 1936. It was an ex post facto construction we placed on that situation. I have also indicated that both the 1913 Act and the 1936 Act refuted the assumption that was made to apply in this connection, an assumption many of us were guilty of for many years.
A third totally incorrect assumption made in this regard is that Blacks in the so-called White area did not possess other rights either. In other words, they would lose not only their political rights, but other rights as well. This included ownership rights. I repeat: This was a total misconception. Up to 1937 Blacks had ownership rights in the urban areas. In this connection the entire matter of ownership rights—this is dealt with in clause 2 of the Bill—came to the fore. Hon members of the CP have two fundamental objections to that clause. Their first objection is that the clause provides that Parliament allows the establishment of Black Townships. I cannot understand why they say that. Over the years Parliament has always had the right to establish any kind of township anywhere in the country. In terms of the old urban areas legislation and now in terms of the legislation on the development of Black communities, Black townships can in any case be established in any urban area. The old section 30 of the Black Administration Act, which is now being repealed, also provided for the establishment of Black townships.
Hon members of the CP conjured up spectres about the matter of ownership, with particular reference to paragraph (i) of the proposed new section 30(1), as inserted by clause 2 of the Bill. I quote:
Hon members of the CP were of the opinion that this implied an amendment to or change in the Government’s standpoint. We on this side of the House have stated repeatedly that we believe that it is essential for Blacks to be given the right to full ownership of land in urban areas. This is our fundamental standpoint. The accusation by the CP is that the Government has deviated from its standpoint. I want to point out to hon members of the CP that in section 30 of the Black Administration Act of 1927, which is now being repealed, provision is made for the acquisition of ownership by Blacks. In this respect the hon members of the CP are also very wide of the mark in alleging that this is a new right that is being granted. This already appears in Section 30 of the Black Administration Act.
The fundamental problem in this connection was singled out by the hon member for Newton Park when he said that the statement by the CP that the right of property ownership must of necessity lead to political rights was not correct. I found that interesting, because it was the first time I heard a speaker on the Government side say that the Government no longer accepted the essential link between the right of property ownership and political rights. This is an important addition to or change in the policy of the Government. The hon member for Newton Park certainly did not advocate that there should be property ownership. To my surprise, the hon member for Helderkruin even went so far as to say that there had been no change in the policy of the Government. This surprised me, because I had at least expected that hon member to say that in terms of the realities of our situation, they would have to give attention to this matter again at some stage or other. However the hon member for Helderkruin merely said that the Government had not changed its policy and that the accusation levelled by the CP in this connection was therefore completely unjustified.
Allow me to make it clear at this point that there is no essential link between property ownership and political rights. There are many Whites, probably the majority, who have full political rights but who do not own property. The crux of the problem, as has been pointed out here repeatedly, is that if there are people who have lived in a country for generations, one cannot deny them participation in the political processes. That is the problem. I want to tell the hon member for Helderkruin that as long as we are not prepared to face that problem squarely, we shall not solve any problems in South Africa.
One of the alarming phenomena in the debate was the condoning of removals we had from the hon member for Newton Park, the hon member for Turffontein and the hon member for Helderkruin they said, inter alia, that we had to accept the fact that owing to the consolidation of the areas in Natal, removals would take place. That was their undisguised statement. I had hoped that by this time we would have realized that we cannot continue with forced removals. Time and again it has been denied by the Government side that these removals take place for considerations other than practical ones. The hon members say that ideological considerations did not come into the picture here. Why must these removals take place? For the sake of consolidation. Very well, if consolidation is not an ideological consideration, I do not know what we should understand ideology to mean. It has been clearly spelled out in this debate that people are going to be moved with a view to consolidation. This has been stated quite clearly and no one can deny it.
I want to repeat my warning, in all honesty and decency, that there is nothing that mars relations in South African as much as forced removals. It therefore upsets me when responsible speakers on the Government side say without further ado that we shall have to accept such removals as a matter of course. Mr Speaker, I am not merely referring to the relationship between Blacks and Whites in South Africa. There is nothing that drags South Africa’s name through the mud abroad more than these forced removals. With reference to statements made by the hon the Minister of Co-operation and Development and others, I had really hoped that we had seen the last of forced removals. Now, however, I have to say that I see a dark future ahead of us if the policy as it has been stated here is to be implemented.
The hon member for Vryheid had the temerity to say that he held it against Capt Buthelezi and the kwaZulu Government that they refused to hold discussions with the Government on removals. Sir, can you imagine anything more stupid? If large numbers of Whites were being forced to move, would this Government be prepared to enter into an agreement on their behalf with whoever was responsible for these removals? This is a shocking state of affairs, and I am amazed that the hon member for Vryheid went so far as to say that he expected the kwaZulu Government to hold discussions with our Government on the forced removal of people. In this connection I also want to say that I object to the opinion expressed by the hon member for Vryheid here that we on this side of the House dictate to Capt Buthelezi as to what he should say and what he should think. I cannot understand why those hon members do not realize that if they adopt that standpoint, it is an insult to Capt Buthelezi, because they are then assuming that he and the people of the kwaZulu Government are not able to think for themselves. [Interjections.] It is that sort of attitude which attests to an attitude of White supremacy, namely that Black people are not able to think for themselves and look after their own interests. This is the only logical inference one can draw from the statement of the hon member for Vryheid.
In the very short time at my disposal I should like to get back to the provisions to which the hon member for Helderkruin referred. I cannot understand how the Government could only have obtained the legal advice it did after a proclamation had been repealed, because it should have realized that in terms of the legislation as it stands it is expressly provided in section 25 that this legislation does not affect the powers of the State President to promulgate proclamations by virtue of section 25 with regard to those matters which have not been transferred to the governments of the national states. It surely goes without saying that as regards the power of the State President in respect of those matters which have, in fact, been transferred, section 25 of Act 38 of 1927 would no longer apply. That is the charge against the Government. It is not that it obtained legal advice but that in spite of the fact that several proclamations were declared invalid, it decided that it would go ahead and resort to all the means at its disposal in an effort to circumvent that decision. This is the charge against the Government, because this is a political decision and not a legal decision. If the Government had acted in the spirit of the legislation on the constitutions of the national states, it would have had to accept that according to the court finding and according to its own intention when the legislation was passed, consultation had to take place. The fact that the Government did not do so attests to political shortsightedness of the worst kind. One could say a great deal more in this connection.
In the Bill before us we are being asked to approve a number of matters as if consultation had taken place. Sir, surely we cannot do that. I want to consider the matter again in the light of the legal position, and I want to put the matter to the hon the Minister, in all modesty. As you yourself know, Sir, there are many divergent views among legal experts. I reiterate that we may find ourselves facing the same situation. In view of the fact that the legislation very clearly provides that with a few exceptions, after this part of the legislation on the constitution of the national states has come into effect, an Act of this Parliament will not apply in the national states with regard to those matters transferred to the jursidiction of the national states, I think that we shall find ourselves in the same situation of trying to do what is essentially illegal. In terms of that provision, I do not think that when we have proclamations the legality of which can be disputed, as is the case at this stage, the passing of this legislation will give validity in law to such proclamations. I want to make this quite clear. I do, however, readily admit that this is a legal argument one could discuss.
The spirit of the 1971 Act is quite clear. It provides that when actions are taken with regard to those matters in respect of which jurisdiction has been transferred to the governments of the national states, this shall take place after consultation. This is quite clear. If the Government had done the right thing, it would have approached those national states and told them: Here are a number of proclamations which have been promulgated and we do not know whether these proclamations are valid or not. If what the Government has told us is true, namely, that none of those proclamations are to the detriment of the rights of people or groups, I cannot see why those national states would not say: Very well, we have been consulted and after consultation we give our consent to those proclamations being agreed to, or whatever the case may be. The Government cannot, however, expect us to endorse these provisions. [Time expired.]
Mr Speaker, the hon member for Helderkruin crossed swords here with the PFP, and here we have now seen the hon member Prof Olivier, in turn, crossing swords with members of the NP. It was actually very strange, since the hon member Prof Olivier said that in regard to certain principles in this amending Bill they agreed with the NP, but that there were certain practical arrangements embodied in this amending Bill about which they disagreed. The hon member Prof Olivier said, for example, that he agreed with clause 4, which makes possible the extension of the 1936 quota, adding that the PFP welcomed it. I now want to ask the hon member Prof Olivier whether, in terms of PFP policy, a Black person would be able to buy a farm anywhere in South Africa.
I am so very grateful to the hon member for his answer. What I greatly appreciate about the PFP is that when one asks a straightforward, honest question, they give you the answer. The hon member says yes, of course a Black person would be able to buy a farm anywhere in South Africa. That is why this party, the CP, is so diametrically at odds with the PFP. They say that the quota under the 1936 legislation, in terms of which the Black people obtained their own fatherlands, can be extended. They say that the quota can be increased and, in the same breath, that a Black person can also buy a farm in the White portion of South Africa.
The hon member Prof Olivier referred to certain misconceptions in regard to the 1936 Act, for example the misconception that South Africa was supposedly divided up into White and Black areas. As far as legislation is concerned, the hon member may probably be correct, but let me tell the hon member that it was the policy of the old NP that within the context of the 1936 quota the Black peoples were each to be provided with their own fatherland within which they would have to be able to govern themselves. That was NP policy over the years.
Less wishful thinking. Rather be more practical.
What the hon member for Swellendam has just said is very interesting. I said that it was NP policy, with the land quota determined in 1936, to create a fatherland for each of the Black peoples, a fatherland in which they could govern themselves.
That is wishful thinking.
The hon member for Swellendam says it is wishful thinking. That is very interesting. At a later stage I shall be coming back to that hon member and his wishful thinking.
Do not twist my words.
Under the policy in terms of which the Black peoples would each have been provided with a fatherland of their own, four Black peoples have, through decisions of this Parliament, already achieved independence within their own fatherland. True freedom was granted to those peoples within their own fatherland, and on land areas laid down in terms of the 1936 legislation. That was the policy of the NP, and I hope it will stick to it.
Another misconception to which the hon member Prof Olivier referred relates to the political rights of Blacks and Whites as a result of the 1913 and the 1936 legislation. The hon member is a great authority on the historical background to this matter. He says that in terms of legislation Blacks had representation in this Parliament. That is so. But in terms of decisions of this Parliament the Black people’s political rights in this Parliament were terminated. It was the NP’s policy over the years that each Black people should govern itself within its own area and that it should exercise its political rights within that area, within its own fatherland. That was the NP’s policy. As a result of laws of this Parliament, true freedom was granted to Black peoples, they were given true political freedom. True freedom was given to the Xhosas, for example, when this Parliament decided that within its own fatherland the Xhosa people could decide for itself about every facet of its life. That is true self-determination for the Xhosa people It is true freedom that has been granted to the Xhosa people. That is why the CP, which stands for the self-determination of peoples, says that it is a liberating policy, a policy that creates freedom, a policy that gives a people the opportunity to decide for itself about every facet of its life within its own fatherland. That is why the NP, which granted freedom to the Xhosa, Venda and the Tswana, also to the Xhosa of Ciskei, need not apologize for that fact. The NP gave those peoples true freedom.
The hon member Prof Olivier was very upset about the hon members of the governing party having referred to removals and having said that Black people would, of necessity, have to be moved owing to consolidation. The hon member said that as a result of these removals South Africa’s name stank in countries abroad. Today I want to tell the hon member and the PFP they are blowing up the question of removals, as if it were a question of every Black person being removed. Because the Government is moving Black people in order to bring about meaningful consolidation, the PFP says the Government is causing South Africa’s name to stink. I want to point out to hon members of the PFP that in the process of bringing about meaningful consolidation, of giving various Black peoples their own fatherland, thousands of Whites have also been moved. I think they would be doing South Africa a favour if they put it in perspective that when it comes to the creation of separate freedoms for the various peoples, not only Black people have to be moved, but also Whites. Between my district and that of the hon member for Vryburg the White have relinquished 633 000 morgen to the Tswana people. That is land which has been relinquished to the Tswanas and which today forms part of an independent Bophuthatswana where the Tswana people happily govern themselves. Those were farms which previously belonged to White farmers and which they were also attached to. Some of their children were born on those farms and some members of their family lie buried there, but they relinquished those farms; they were moved.
This amending Bill is quite possibly the last amending Bill affecting Black people to be piloted through the White Parliament. In future consensus will have to be achieved, within a multiracial Cabinet, on all pieces of legislation affecting Black people, and those pieces of legislation will have to be piloted through the multiracial tricameral Parliament and its multiracial standing committees. I hear the noise those hon members are immediately making back there, among others the hon member for Schweizer-Reneke.
That is not so. I did not say a word. [Interjections.]
I said a short while ago that the White Parliament had granted freedom to four peoples, but this is the last legislation, giving anything to any Black peoples, which is to be piloted through the White Parliament. If the Zulus were to decide that they wanted to become independent, that they wanted to govern themselves like the Tswanas, if they wanted true freedom, it is not this White House of Assembly that would decide the issue, for the Indians and the Coloureds must also say “yes” to the Zulus obtaining their freedom.
The hon member for Durban North says “why not”? I think he should go and tell the Zulus in Natal that it is very interesting that the Indians, who came here from overseas, have obtained a seat in Parliament and can decide whether the 5 million Zulus—if they were to ask for it—can obtain independence.
They are South African citizens, and you know it.
It will not be possible for this White Parliament to pass the consolidation plans in terms of which the fatherlands of the other peoples can be delimited. The White land which is to be relinquished to the Blacks in terms of these plans will not be approved by the House of Assembly, but by a multiracial tricameral Parliament. The proposed addition of 160 000 morgen to Bophuthatswana, which is already independent, for which provision is being made in certain proposals of the commission, land which belongs to Whites, will not have its transfer approved by the House of Assembly, but by a multiracial tricameral Parliament. The addition of land to national states, also in terms of clause 4, will have to be approved by a multiracial Parliament. The development of Black towns or cities in national states or in the White areas will have to be approved by a multiracial tricameral Parliament. Leasehold and proprietary rights for Blacks in the Republic of South Africa will have to be approved by a multiracial Parliament.
I now want to ask the hon the Deputy Minister of Co-operation whether White land is an own affair. If one puts a question to the PFP, they answer it at once. I am now asking the hon the Deputy Minister whether White land is an own affair of the Whites.
I shall be getting a chance to speak, not so?
Surely it is a very simple question I am asking.
That is not the way to ask a question.
The hon the Deputy Minister is also going to put questions to me, and all I am now asking is whether White land is an own affair of the Whites. The hon the Deputy Minister does not answer me, but the Deputy Minister of Internal Affairs said on Friday, during this debate: “The Whites themselves decide about their own land.” I now want to ask the hon the Deputy Minister of Co-operation whether the hon the Deputy Minister of Internal Affairs was right when he said that.
You are now asking me whether I still beat my wife.
I am not asking the hon the Deputy Minister whether he still beats his wife, but whether he agrees with the hon the Deputy Minister of Internal Affairs that the Whites themselves are going to decide about their own land. Does he agree with that?
I shall give you an answer when I furnish my reply.
It is such a simple question.
I have a very simple solution for you.
It seems to me as if the hon the Deputy Minister does not agree with his colleagues. [Interjections.] The hon member Mr Vermeulen has just said something here behind me, so let me ask him whether he agrees with the hon the Deputy Minister of Internal Affairs that the Whites themselves must decide about their land.
The hon member Mr Vermeulen is at least not afraid to answer. He says that the Whites themselves will decide about their own land. I thank him for the fact that he is not afraid to say so. In the preamble to the Bill it is stated, amongst other things, that the Bill has been introduced to “provide for the acquisition by that Trust of additional land required for the Black settlement and for the implementation of the provisions of the Act, in accordance with certain resolutions of Parliament”. In clause 4 it is provided that the Trust can exceed the land quota “if such land is acquired in areas determined for the purpose by resolution of Parliament”. If Parliament decides about land which is the property of the Whites …
Let me tell the hon member for Winburg that it will be a multiracial Parliament that decides about this. [Interjections.] The Coloureds and the Indians must now help decide about land that will be allocated to Blacks in the Free State.
Order! Hon members must not converse so loudly amongst themselves.
If a small piece of land in the Free State were to be added to one of the Black national states, or if a Black town is developed in the Free State, in terms of this legislation a multiracial tricameral Parliament must decide the issue. Let me therefore tell the hon member for Winburg that even the Indians will have to decide about where in the Free State land should be employed for the Black people.
I now want to put another question to the hon member Mr Vermeulen, because he is the one who gave me an answer. If the CP were to move, in the Committee Stage, that wherever the word “Parliament” appeared in the Bill, it should be replaced by the word “House of Assembly”, would he support it? [Interjections.] The hon member Mr Vermeulen says “no”. If we are told that White land is the heritage of the Whites, surely the House of Assembly should be able to decide the issue. Hon members of the governing party, however, say the word “Parliament” should be retained. They are satisfied about Coloureds and Indians deciding jointly with the Whites about the land that is the Whites’ own land. That is the very problem we have with this Government. They say a matter is an own affair of the Whites, but then they say that the Coloureds and the Indians can jointly decide the issue with the Whites.
I very much wanted to put my question to the hon the Deputy Minister of Internal Affairs, and I asked him to be here, but unfortunately he has official duties to perform today. I would have liked to ask him the question that the hon member Mr Vermeulen was good enough to answer. I think the hon the Deputy Minister’s answer would have been exactly the same as that of the hon member Mr Vermeulen. The hon the Deputy Minister said that White land is the heritage of the Whites, but he would not agree with the CP moving to have the word “Parliament” substituted by the words “House of Assembly”, because he is a great advocate of the new multiracial system of government that stipulates that Black affairs are general affairs. When the Bill is voted on, he will vote in favour of the principle that Whites, Coloureds and Indians should obtain a say in the disposal of White land to Blacks. When we vote on the principle of this Bill, all the hon members opposite are going to vote for Coloureds and Indians being able to dispose of the land of the Whites in future. [Interjections.] I am very sorry that the hon the Deputy Minister of Internal Affairs is not present at the moment, because in regard to land he said the following on 4 May (Hansard, col 5821):
He says that in his constituency, when a Coloured wanted to purchase a farm, he approved it.
We also had a case in Robertson.
There the ex-leader of the old United Party in the Cape, at present the MP for De Kuilen, says that this has happened in Roberton, too. Let me say—perhaps we should also tell the people of Potgietersrus about this—that the only way of preventing White land from being alientated is for constituencies like Potgietersrus, Oudtshoorn and De Kuilen to ensure that their MPs and MPCs are members of the CP. [Interjections.] I should like to refer to the proposed new section 30(2) in terms of which the Minister will be able to issue certain proclamations. The Minister, who can issue certain proclamations, may be a White, Coloured or Indian in terms of the new constitution. One of these regulations is the following, and I quote from the proposed new section 30(2)(h):
The Minister, who can be a White, Coloured or Indian, can therefore make a regulation in terms of which leasehold is granted in any town. The Minister, however, can also make regulations in terms of the proposed new section 30(2)(i), and I quote:
I emphasize the word “ownership”. It is interesting that hon members on that side of the House are not saying that these are untruths I am proclaiming.
What of Tobias?
I was notified this morning that the hon the Deputy Minister of Internal Affairs was out of town owing to official duties. I asked him to be here. Now that I have finished dealing with the idiotic standpoint he put forward the other day, he makes an interjection about Tobias. The hon the Deputy Minister is so obsessed by mixing that he emphasizes it in everything he says.
I am not the kind of racist that you are. [Interjections.]
I want to come back to the subject under discussion.
Five years ago the hon the Prime Minister said that the consolidation of the Black states had to be finalized within four years. I, together with other hon members now sitting in the CP, heaped praise on the hon the Prime Minister for this. The hon member Prof Olivier also referred to the question of consolidation, which has been dragging on for 73 years now. The hon the Prime Minister gave the instruction that consolidation be finalized within four years. The Commission for Co-operation and Development was instructed to investigate the matter, and if they thought it necessary to exceed the 1936 quota, with a view to obtaining meaningful consolidation, they could make the appropriate recommendation. The Cabinet and Parliament would then decide about the amount by which the quota would be exceeded. If it had been finalized within four years, it would have been this White Parliament that would have decided the issue. Five years have now passed, however, and there was only one submission from the commission last year in regard to the consolidation of Transkei. Future recommendations of the commission concerning this consolidation and the amount by which the 1936 quota can be exceeded, will now have to be sanctioned by a multiracial tricameral Parliament.
There is another interesting aspect of this Bill. I quote the proposed new section 30(1):
This means that this multiracial tricameral Parliament will be able to decide on Khayelitsha being such a town, in the planning of Khayelitsha provision is being made for the establishment of five towns, each with 250 stands on which Black people who can afford it can build a house to suit their own taste, with electricity if they so choose. In a previous debate I asked the hon the Deputy Minister of Co-operation—and he did not give me a reply—whether Blacks could obtain proprietary rights or leasehold in the Western Cape, and therefore also in Khayelitsha. I have obtained no answer to that question. We now find the answer, however, in the proposed new section 30(l)(h) and (i), as inserted in clause 2, providing that the Minister can make certain regulations.
Now the hon the Deputy Minister apparently wants to put a question to me, but a moment ago when I put a question to him, he did not want to reply. Now, however, he wants me to reply to his question.
I am not asking you a question. I am telling you to do something.
Let me tell the hon the Deputy Minister that I will not have him telling me what to do. [Interjections.] In this clause it becomes very clearly apparent that leasehold, or even proprietary rights, can be given the Black people of Khayelitsha.
Do you not think they should get it?
No. I do not agree with that. What I say is that Black people can obtain their own political rights and all other rights, including proprietary rights, within their own fatherlands. I disagree with the hon member for Houghton and the NP about Black people obtaining proprietary rights here. I want the hon member for Houghton to know that I disagree with her and with the hon the Deputy Minister about this.
Let me ask the hon the Deputy Minister whether, in terms of this legislation. Khayelitsha could possibly become a Black urban state.
I can tell the hon member right now: No.
The hon the Deputy Minister has just answered my question! [Interjections.] My question was whether, in terms of this legislation, Khayelitsha or Soweto could become part of the urban states to which the Government could possibly grant future independence.
The CP can in no way endorse this legislation, and we shall therefore be opposing the Second Reading.
Mr Speaker, before I react to the speech of the hon member for Kuruman, allow me to welcome the hon member for Randburg back to this House after a long absence as a result of a serious operation. We welcome the fact that he is back with us again.
I intend to react to the hon member Prof Olivier’s reference to removals later in my contribution. Before I come to that, however, I first want to react to the contribution made by the hon member for Kuruman.
The contribution of this hon member reminds one of the kind of arguments one hears among children, with the one child saying to the other: “You did it”, to which the other will then reply: “No, I did not”, followed by: “I did not—you did—I did not—you did”, etc. This is absolutely futile.
I want to say that the circumstances under which the 1936 Act took shape were completely different to the circumstances prevailing today. The circumstances which have prevailed since 1959, when Dr Verwoerd gave new substance to the ethnic policy of South Africa, were completely different to the circumstances that prevailed before that time.
I want to put it that when the 1936 quota was determined, there was, on the one hand, a removal—with resultant loss of franchise—of the Blacks from the common voters’ roll in the Cape Province, and on the other hand it was considered desirable to add land to the Black areas. There were protracted negotiations on the amount of the land that had to be added, and it was ultimately determined at 7,5 million morgen. By 1948, when the NP came into power, very little of that land had been added, and this could be attributed to various circumstances. Inter alia, there had been a war, economic disruption and many other reasons for which I cannot reproach anyone. In 1936 the policy in respect of Black-White relations in South Africa was completely different to what it is today. At the time it was not foreseen that the Black peoples would be led to sovereign independence. It was foreseen that they would exercise their political rights in their own areas, but at the time it was not foreseen that they would be led to political sovereignty, and it is quite logical that that was not foreseen because the entire pattern, both internationally and in Africa itself, was quite different.
I have already indicated, on a previous occasion, that when the NP came into power in 1948 there were only four sovereign independent states in the whole of Africa, namely Liberia, Ethiopia, Egypt and South Africa. The pattern in Africa, however, went through an uhuru phase. I do not want to imply that this has necessarily been to the advantage of the Black peoples of Africa, but Africa went through an uhuru pattern, and the decolonization process of the colonial powers in the post-war situation issued an entirely new challenge to the South African Government as far as its population policy was concerned. Dr Verwoerd announced in 1959 that we should develop with a view to improved ethnic consolidation—and I emphasize the words “ethnic consolidation” of the Black areas which could lead to sovereign independence. A determining factor for us, therefore, is not what was said in the past, not useless arguments which are no longer valid as a result of changing circumstances today, but whether the steps we are now taking will work. We must determine what is practical in the light of today’s challenges and circumstances. In the light of today’s circumstances we say that if we wish to strive to attain a policy of sovereign independence, we must not only give a geographic integrity to an area, we must also give that area an economic integrity. We must give the Black peoples an economic integrity, and with that new challenge and those new circumstances a completely new situation prevails.
Since the hon member for Rissik is not present at the moment, I want to put a question to the hon member for Kuruman. At present Qwaqwa consists of approximately 60 000 hectares of land. The South Sotho, who ought to settle in Qwaqwa, at present consist of 2,5 million people. As I have already said, Qwaqwa is 62 000 hectares in extent—that is approximately 620 square kilometres. My constituency, Klip River, is 13 000 square kilometres in extent, and is therefore 20 times the size of Qwaqwa at the moment. If the Free State quota has already been filled, would the hon member for Rissik or the hon member for Kuruman say that it was possible to give an economic substance and also a political ethnic substance and integrity to an area of 60 000 hectares which has to accommodate a population of 2,5 million people? If we associate political freedoms exclusively with territory, surely there is no logic in it, and then it is necessary to consider the possibility of enlarging that area in order to give it economic substance, a territory which could be made viable through the pattern of economic partnership which we are developing in Southern Africa.
I maintain that we have completely new circumstances, and if we find it necessary under those new circumstances to exceed the 1936 quota, the quota which was determined in accordance with completely different circumstances, in certain cases—not necessarily in all cases—then surely it is not the end of the world because we are making provision under certain circumstances that the quota may in fact be exceeded. I think the hon member for Kuruman, who can be very reasonable in private conversation but who adopts the attitude of “is—isn’t” when it comes to a politically charged argument, is then using a futile and totally useless argument. I therefore want to make an appeal to the hon member for Kuruman to recognize the logic of an approach which is aimed at wishing to do the best for the Blacks, because the best for the Blacks under these circircumstances is the best for the Whites in South Africa too. That is the issue here. What we are doing, we are doing on the one hand because it is the best for the Whites, and also because we want to be fair and reasonable and just to the Black people in Southern Africa.
I now want to refer to certain aspects that were raised by the hon member Prof Olivier. The hon member also used a politically charged term. He spoke about forced removals and he spoke out against what he termed the condonation of removal by other hon member. In this connection I should like to argue once again about the practical reality. I should like to refer to certain aspects. I have with me here an aerial photograph of an area in my constituency through which the Tugela River flows. On the one side is the Upper Tugela Location and on the other side a White area. The White area is a White agricultural area and the Black area is Black tribal land. The hon member Prof Olivier is welcome to come and take a look at this photograph later. This Black area, which is overpopulated and overgrazed, has been totally subjected to water erosion. There is one donga after another. That land and the strategically important water catchment area of the Tugela from which water is at present being pumped to the Transvaal because the Transvaal is unable to supply sufficient water for its own development, is causing even the pumps that pump the water over the mountains to wear out as a result of the high silt content of the water. This is prejudicing the entire economy of Southern Africa. These people are not being enriched by possessing this land. They are in fact being impoverished, and as long as these people continue to occupy, till, graze, etcetera, this land according to a tribal land-ownership system and according to the old traditions, there will be no enrichment of the Black people. If we add land to the Black areas on the basis of tribal ownership and tribal development, it is no longer development. Then it is not only a gradual process of impoverishment, but a rapid process of impoverishment. The Minister of Foreign Affairs said on television yesterday evening that if African countries carried on as they were now doing, 36% of Africa’s surface area would be desert in 20 years’ time. That is what will happen here. Here we have a desert in the making. Since this is an emotionally charged situation, I want to put the following question: Should the people continue to remain here under the circumstances which exist here, or should talks be held with the Black people in this regard, for the sake of economic integrity? If they are not willing to do so, however, what then? Should we continue to allow the soil of South Africa to end up in the ocean and our dams to silt up so that they begin to become useless? Is this the pattern we should follow? If removals have to take place as a result of this situation, for logical, self-supporting reasons, reasons which can be endorsed by anyone who has a sense of value, is this something that should be rejected, is this something which should be turned into a political issue, is this something in regard to which the Bishops’ Conference and the churches should stir up emotions and even ask the Pope to intervene to prevent this kind of thing?
I shall reply to your question later.
I would appreciate that very much. I want to mention another example. In my constituency there are so called Black spots. A Black spot is a farm that belongs to Blacks. They have a title-deed to that land, which they may have received 50, 60 or a 100 years ago. That is not relevant. In the past that Black farm belonged to one farmer, but through succession which was not necessarily testamentary, it may now belong to 20 people. However, there are now approximately 500 to 1 000 families living on that farm. The owners allow Blacks to squat there and construct their dwellings there. They do not provide any sewerage. They do not provide any water. They do not provide any services. They provide absolutely nothing. However, they do receive money annually from the Blacks who are allowed to construct their huts there, and graze their cattle and goats there. The land has been subjected to water erosion and overgrazing and there is nothing there. Those so-called Black squatters are to a large extent economically dependent on employment opportunities in the industries, to a certain extent in the Ladysmith area, to a further extent in the PVW area and in the Durban, area. They live there, however, because Black owners allow them to construct their huts there for an annual payment of a certain amount. That land is meant to be agricultural land, but it is not being utilized as agricultural land. I would have no objection if the Black owner of that farm were allowed to remain there under agricultural laws pertaining to soil conservation and economic soil utilization, on the basis of the fact that he bought it 50 or 100 years ago. A White farmer, however, is prosecuted if he allows squatters on his farm, squatters who are not in his employ and who are not employed economically by him on his farm. We are negotiating with the Black squatters living on Black spots in the Ladysmith area, who are destroying the land, and who are allowing overgrazing and who are resisting the introduction of livestock quotas and who are allowing that land to be absolutely destroyed. It is becoming completely useless for posterity. If we now plan to resettle them on land that has been added in the Black area, land purchased from White farmers, land which is closer to their employment opportunities in the Tugela basin area and land on which they can be provided with decent housing, decent services, streets, a sewerage system, garbage removal, schools, clinics and so on, then this is portrayed by the PFP, by certain churches and by certain newspapers here and abroad as being an inhuman policy of forced removal. Political emotions are being stirred up which makes things extremely difficult for us overseas, and for the hon the Prime Minister too now in his overseas tour.
Mr Speaker, may I ask the hon member, following on what he is saying right now, whether he would be prepared to allow the people living in those areas to move to urban areas. White urban areas if necessary, where they could establish themselves and their families?
Sir, I shall continue in a moment with the point I have been dealing with up to now, but now I first want to reply to the question asked by the hon member for Pietermaritzburg South. My standpoint is that most of these people are living in Black spots on the outskirts of Ladysmith. They are working in the industries, the services and the commercial sector of Ladysmith. Within 10 km from Ladysmith there are the homeland borders of kwaZulu at Ezakheni and the Ezakheni extension. I am in favour of them being resettled virtually within walking distance of the industries, the establishment of which the hon the Minister and I encouraged in kwaZulu. At the moment there is tremendous industrial development in the Pieters area of kwaZulu, and I am doing my best for the industrial development within kwaZulu. I want to suggest, however, if it is now being argued that those people should be allowed to resettle in the PWV area or in the Durban area, that a practical question should first be asked. Let us consider the argument in a practical way. During the drought Durban had water restrictions limiting the inhabitants of Durban to 200 of water per family per day. Should these people now be moved from Ladysmith, from the Tugela basin catchment area, to Durban, where, until recently, there were serious water problems, and when water is already being pumped out of the Tugela catchment area, out of the Mooi River, to the Midmar Dam, to supply Durban with sufficient water? Should those people be allowed to move to the PWV area to which water from the Tugela catchment area is being pumped over the mountains so that the PWV area can provide more people with employment, people who, what is more, must move there from the Tugela basin area under the migrant labour system? I ask whether that is logical.
Mr Speaker, may I ask the hon member whether it is his contention that the Government only removes Blacks on humanitarian and economic grounds and not on ideological grounds?
The hon Chief Whip of the Opposition is now trying to imply that removals are carried out for entirely ideological reasons. They are not being carried out for ideological reasons. Regardless of whether those Black farms from which removals are occurring are situated in the Ladysmith area or elsewhere, there is also the tribal system of land ownership by Blacks that has to be taken into account. Black people do in fact own land, but in most cases they do not employ that land for agricultural purposes. They do not employ that land so that it can be economically exploited. As a former Deputy Minister said, it is true that the Good Lord stopped making land, but did not stop making people. We have a great responsibility to maintain the productivity of our soil. Most Black spots, whether they are Trust land occupied by Blacks or private Black farms, are not being utilized for the economic upliftment of people. They are being utilized to afford people accommodation because they do not wish to live in their national states closer to a White area. This is so in by far the majority of cases. I could just inform the hon member for Berea that 80% of the people living in Groutville do not work within 20 km of that place, but in the Pinetown and Durban area, to which they commute.
How do you reconcile your argument with Reserve No 4?
There, too, the issue is the tribal land-ownership system. Just outside Richards Bay is the town of Ezikaweni, which is a developed township where people employed in industry, commerce and in service organizations, in orderly urban circumstances, have houses. At present 88% of the Whites are urbanized. If a farmer has six children and only one is able to remain on the farm to carry on the farming operation, the other five seek work in the cities. They do not take their goats, cows, chickens and pigs with them to the city, but base the circumstances of their lives on the requirements imposed on them by urbanization. They work in industries or other places and do not all want a piece of land on which they can keep cattle, goats and pigs. Reserve No 4 is situated just to the north of Richards Bay, and my view is that the accommodation which is afforded should be afforded on an urbanization basis to people employed in industries, services or in commerce. The urbanization process of Blacks will speed up. At present approximately 35% of the Blacks are urbanized and it is estimated that approximately 70% of them will be urbanized in 20 years’ time. I am in favour of the urbanization process, but it must take place in an orderly way. This should preferably happen in proximity to the homeland areas where employment opportunities can be created, so that they can become involved in their economic, social and cultural activities among their own people and still expand employment opportunities in that milieu. I think that is essential. We must, however, get away from these emotionally-charged statements that we are wronging people because people are being resettled. We are engaged in a very positive development policy in South Africa and Blacks will only develop if they admit that their salvation lies in the greater provision of employment opportunities in industry, in commerce and in the services. The longer they cling to the tribal system of land occupation and utilization, the longer will the process of empoverishment which is occurring in the rest of Africa continue. We must stop making things difficult for South Africa in the outside world by bruiting this emotionally-charged propaganda abroad; propaganda which is not based on the truth, but on a false foundation.
I now want to come to another aspect, namely the clauses dealing with the transfer of economic development from the Economic Development Corporation to the development corporations in the national states. It is a very important step that the EDC is now being gradually phased out and that the responsibility is transferred to the development corporations in the Black states. While I am on this subject, I should like to make an appeal to the hon the Minister of Co-operation and Development. With the phasing out and dissolution of the EDC certain responsibilities, assets, loans and so on have been transferred to the kwaZulu Development Corporation, but many of the personnel of the ETC who were involved in these development corporations were not also transferred to the kwaZulu Development Corporation in the process. The kwaZulu Development Corporation now has to contend with the situation that they have a shortage of qualified and experienced men to deal with those specific tasks. I want to request the hon the Minister to give attention to this matter and ensure that justice is done. I am in favour of the development initiative basically being taken by the people involved in the development needs. In the case of the development initiative in kwaZulu, the Black people of kwaZulu should be involved in it. They should have their own economic development corporation. That is the right thing to do, and I am in favour of that. I support the transfer of assets from the EDC to the development corporations of the various national states. I am in favour of this economic development continuing in order to enhance the standard of living of Black people in Southern Africa. That is why I am making this appeal, ie that the initiative for the development should not rest exclusively with the development corporations, but that those people in particular who are so interested in the welfare of the Blacks, the industrialists and also the overseas industrialists, should invest in the development of people. They should invest in the Black states. They should invest in kwaZulu and preferably in the Tugela Basin because there is still potential for development in the Tugela Basin, a potential which no longer exists in the PWV area or in the Durban area as a result of the water shortage. Durban already has to get its water from the Tugela catchment area. I want to advocate that people from abroad should invest in the Black states, because the 20% or 17% of the Whites in South Africa do not have the economic means to invest in the Black states to that level where the development there can increase to the extent that employment opportunities can be provided for the mass of Blacks who are there today as a result of the exploding birthrate. I am in favour of the meaningful development of people, and for that reason I support this Bill.
Mr Speaker, we understand that the hon the Leader of the House is celebrating his birthday today, and on behalf of this side of the House I should like to wish him a very happy day and a very happy and prosperous year. We hope that he and his family will remain in good health. I hope that things will go very well indeed with his farming practice. I hope that the Minister, in the year which lies ahead, will predict rains more successfully than he did during the past year when, for the first time, he made a small mistake. I do want to tell him though that when it comes to politics, we do not really wish him success, but he will understand that health is worth far more than political success.
I think the hon member for Klip River made out an excellent case as to why resettlement should take place in respect of the people to whom he referred and in respect of the area which he indicated on the map. In the interests of the people themselves, in the interests of the economy, in the interests of soil conservation, in the interests of ethnic consolidation and in all respects it is important that this should happen. I now wish to make the suggestion here that since it would seem that almost half the Cabinet is by now accompanying the hon the Prime Minister on his overseas tour, that hon member should also have gone along, for he could then have put the excellent case which he made out here to Mrs Thatcher and others. The chances are that he would have convinced them that they were wrong. Then the hon the Prime Minister could have told them straight away that they should keep their noses out of the internal affairs of South Africa, where they do not belong.
Clause 12 of this Bill provides that the proclamations in regard to the case to which the hon members of the official Opposition referred, should be legalized and consequently provides that consultation shall be deemed to have taken place. In clause 1 it is simply stated that the proclamations are being validated. I definitely want to adopt the standpoint that it would have been far better, and more worthy of Parliament, to have done the same in this case and to have simply validated the proclamations. It is now being provided, however, that consultation is “deemed” to have taken place. Perhaps consultation did take place, or perhaps it did not. However, to provide now that we must pretend that consultation had taken place, is the wrong procedure. Parliament is sovereign and if that proclamation has to be validated, then it should simply be done—and no two ways about it. There should be no pretence that something that did not take place, did in fact take place.
Clause 2 provides that Black cities and towns may be established. In addition provision is being made for local authorities and for industrial and business development in those towns on certain categories of land. These categories are specified in clause 2, ie firstly on released area land; secondly in scheduled areas; thirdly on Trust land and, fourthly, on land which Parliament may determine.
The question now revolves around this fourth category of land. What land is this which Parliament may determine? It is not released areas, scheduled ares or Trust land. In other words, it can only be one category of land, namely White land on which the establishment of towns, freehold rights or ownership and so on can occur. In other words, provision is being made for Black people to acquire ownership of land within the White areas of South Africa and therefore situated outside the Black states and which does not belong to the Development Trust. The clause which is being repealed provides that Black people could acquire ownership in these areas and that Black people did in fact acquire ownership in certain places in White areas. The hon the Deputy Minister knows, however, that as a result of Government policy this was brought to an end. Consequently Black people no longer acquired ownership in White areas. Why is it now being provided in this Bill that such rights may be acquired over land determined by Parliament? It can only mean one category of land, namely land in the White area.
You do not understand very clearly.
It is stated in the Bill that Blacks may acquire ownership there. Why is it being provided that Black people may acquire ownership of that category of land? Does the Government intend to change its policy? I suspect that this is the case.
You are too suspicious.
Everything we have predicted the Government would do, has in fact happened. Everything we predicted, the Government has dutifully done. We need only consider what the mentor of the National Party, Dr Willem de Klerk, has to say. Everything he has so far told the Government to do, the Government has done, like good little boys. [Interjections.] So much so that they even boast of it.
Provision is being made in the Bill for Black people to acquire ownership of land which Parliament will determine. What will the difference be between those Black people who will acquire ownership in White areas, and the Coloured and Indian population? The Coloureds and Indians have land tenure in South Africa, and hon members accept that South Africa is one country and must not be divided up. If Black people are now being granted ownership in that country, on what grounds will it be possible to say to Black people that while Coloureds and Indians are being granted the franchise in Parliament because they have land tenure and reside here, no provision is being made for Blacks, who have also acquired land tenure and are living in this country to have representation in Parliament and to participate in the new dispensation? The Government stipulates that a distinction should be drawn between the franchise and land tenure rights and that a person may in fact own land, but cannot acquire the franchise. Is that the objective that a distinction should not be drawn between land tenure rights and the franchise and that the two things should not be linked? Is it because the Government wishes to grant the Blacks land tenure rights? The strategy, however, is not to grant them the franchise immediately. The people must first swallow the idea of land tenure rights, and then the franchise is introduced as a second instalment.
Business suspended at 12h45 and resumed at 14hI5.
Mr Speaker, hon members opposite are intimating that ownership for Black people in the White area is not the Government’s objective. I say that this Bill does in fact make it possible. I should like to quote the proposed new section 30(1) as inserted by clause 2 of the Bill:
In paragraph (i) it is provided that the Minister may make regulations providing for, and I quote:
In other words, specific provision is being made here for four categories of land on which Black people may acquire those rights, namely released areas, scheduled areas, Trust land and land determined by Parliament by resolution. This may also include land on which Black people are living. This Bill therefore makes it possible for Black people to acquire precisely the same rights in South Africa as they are able to acquire within the Black states.
Hon members on this side of the House made a further point as well, namely that the decision on this land under the new dispensation will be a general affair because Parliament as such and not the House of Assembly will determine the matter by resolution. I carefully read through the constitution once again, and reference to land is only made in one place, namely under “community development” in paragraph 5 of Schedule 1. Black people are not administered under the laws of the Department of Community Development, but under those of the Department of Co-operation and Development. All the laws dealing with Black people are therefore general affairs.
Secondly, the land that has to be made available for Black people is a general affair because it is not specified in Schedule 1 as an own affair of a specific population group. All three population groups—the Whites, Coloureds and Indians—will therefore have to decide on this land in future. I want to tell the hon the Deputy Minister that in this new dispensation he will see that the Chambers of the Coloureds and the Indians will not adopt the Government’s standpoint. Their standpoint is that Black people may own land anywhere. The PFP also adopts this standpoint. In the new dispensation, therefore, two Chambers are going to be in favour of ownership for Blacks anywhere in the country. The majority of the elected representatives are going to be in favour of that.
What does that mean now?
I say that the hon the Deputy Minister is already, at this early juncture, making preparations to make it possible for Black people to acquire ownership in any town in South Africa set apart by the State President and approved by Parliament. The Government is already making preparations for this. [Interjections.] I shall come back to this point later.
Clause 4 of the Bill deals with the matter of exceeding the 1936 land quota. On 31 March 1984 that quota had been exceeded as follows: 188 000 ha in the Transvaal, 62 000 ha in Natal, 9 714 ha in the Orange Free State and 24 498 ha in the Cape Province. Consequently the 1936 quota was exceeded by a total of 285 010 ha.
We are dealing here with two categories of land; the one is the quota land and the other the compensatory land purchased for the resettlement of people who find themselves in poorly situated areas and Black spots. At the beginning of the year the hon the Prime Minister said that the quota land, with the exception of 75 000 or 80 000 ha, had already been purchased. This 285 000 ha by which the 1936 Act was exceeded was compensatory land purchased for the resettlement of Black people. However, that process did not take place.
If we were to look at the investigation ordered by the Government in 1979, we find that when the hon the Prime Minister announced the investigation, he laid down two very clear objectives. He said:
Today I want to suggest that neither of these two objectives has been achieved; on the contrary, there has been a failure on a considerable scale. The 1975 proposals provided that the consolidation into 24 different places would be finalized. In the second place it was announced that the process had to be completed within 10 years.
When did those 10 years begin?
In 1975. The proposals were announced in 1975, namely that the 264 different areas comprising the land of the Black people would be reduced to 24 blocks. This process had to be completed within 10 years. Work then commenced according to a programme and when it was found that there were insufficient funds, all kinds of measures were introduced to adhere to the 10-year schedule. Consequently, as far as purchases and resettlement were concerned, the schedule was adhered to.
In 1979, however, the hon the Prime Minister said that the plan had to be accelerated. At that stage there were six years left. Therefore, if we come to 1985 and there are still 24 Black areas in South Africa, this investigation has contributed nothing to accelerating the process. If there are fewer than 24 Black areas prior to 1985, the investigation will have succeeded in its object. Then the process will have been accelerated and the completion of consolidation improved. But if, in 1985, there are still more than 24 Black areas, then this investigation will have delayed and not accelerated the process.
The Minister has told us that at this juncture kwaZulu still consists of 45 different areas, and that does not include the Black spots. I want to tell the hon the Minister and the hon the Deputy Minister that between now and next year they will not see those 24 areas become a reality. Consequently this investigation has not contributed one iota to the accelerated completion of consolidation; on the contrary, it has delayed the process and has virtually brought resettlement to a halt.
When the hon the Prime Minister announced the two main objectives in 1979, he also laid down certain guidelines. He said:
Progress has in fact been made with land purchases, and today the department has approximately 13 000 farms on which no people have been resettled, but which have been withdrawn from the White agricultural sector. That land has to be utilized for this purpose, but that is not happening, and therefore no progress is being made with consolidation.
It is fit and proper that this land should be purchased. The second component of this process is, however, that the consolidation must then be implemented. That land must be utilized for the purpose for which it was purchased. That land is not being utilized today; it is being leased today. There are approximately 13 000 farms in South Africa that are not being utilized.
The hon the Prime Minister laid down a second guideline. He said:
I now want to know from the hon the Deputy Minister, if this consolidation process is not taking place, how can economic development take place? Black people occupying poorly situated land, who are occupying Black spots far removed from their states, also have a need for development. However, because they are not in the right place, that development cannot take place. However, if they arrive at the right place, and where they should be, namely with their own people, and under their own government, then the development can take place. The development of the people on these poorly situated spots is therefore lagging behind, and the economic development of the state itself is also lagging behind because the people are not where they should be and because development cannot take place.
As regards his third guideline, the hon the Prime Minister said:
One can have political stability if one causes the maximum number of people to live in their own country and be governed by their own government. By allowing these people, on poorly situated land for which compensatory land has already been purchased, to come into their own under their own government, one is creating political stability. Then it is no longer a foreign government that has to govern those people; then it is their own government. One is creating stability. That ideal and guideline has been undermined because nothing has been done in this connection.
A further guideline which the hon the Prime Minister laid down was the following:
Nothing is happening as far as the consolidation of nations is concerned. The Government is not bringing people together under their own governments, nor is it adopting measures to form meaningful ties between states and the citizens of those states who are living outside their states. Of the consolidation of peoples nothing remains.
The hon the Prime Minister then said that the investigating commission was not bound in any way. He said:
the commission could recommend that the Act be exceeded. Of all these guidelines that is all the government has done. It has simply exceeded the 1936 Act, and apart from that it has not carried out any of these other objectives. When one reads this in conjunction with clause 2 of the Bill, in which provision is being made for ownership for Black people in the White area of South Africa, the question arises: What is still the policy of the Government today? What is its point of departure? How does it see these problems being solved? There is, of course, the special Cabinet Committee. However, it is also true that there is much speculation about the course which is being pursued by the Government and what its standpoint in this connection is.
On 21 May this year a report appeared in Die Vaderland in which At Viljoen wrote the following:
He said the homeland policy lay in ruins.
What does the hon member himself say about it?
I say that those hon members have ruined it. They have destroyed it. That ideal was destroyed by them because they did not implement what was regarded in 1979 as something that had to be accelerated. They delayed it, and they themselves have reduced the homeland policy to ruins. The report continued:
That is what I want to hold against those hon members. They are making preparations. They are paving the way to ownership for the Blacks. They no longer believe in the homeland policy. After all, the hon the Leader of the House himself said in this House the other day that he no longer believed that the Black people would have ties with their own states. [Interjections.] Of course! Does the hon the Minister want to argue about this now? The hon the Minister said it.
No, surely you know that it is stated in the constitution.
When we were walking out of this House, I said that I wondered whether you had not thought I was talking about women. Surely the hon the Minister gave the wrong answer. The hon the Minister then persisted with the wrong answer, and I told him that he was wrong. If the hon the Minister says he is not wrong, surely he knows that there is a difference of opinion between him and some of his hon colleagues in this House. That same article continued:
When I asked that hon Minister: Does the hon the Minister of Transport Affairs agree with this columnist that homeland ties are a myth, the hon the Minister replied: Yes, they are a myth. I am giving the hon the Minister a second chance now. He must now say whether he does not agree with the columnist.
How must I do that? Will you sit down so that I can speak?
The hon the Minister need only shout, as he is now doing that he does not think it is a myth.
No, it is not a myth. If you are given half a chance you put words into my mouth which I never said.
I am giving the hon the Minister a chance to rectify his mistake, because it is stated here in Hansard, and any person can use it as evidence against him, that he does not believe in the homeland ties policy. I know, however, that the hon the Minister does believe in the homeland ties policy. After all, I have just said that I thought the hon the Minister misunderstood me.
The hon the Minister thought I was talking about something else. In any case, he was not listening very carefully. The hon the Minister has now adopted two standpoints in this House. The hon the Minister said it was a myth, and also that it was not a myth. However, I shall give the hon the Minister the benefit of the doubt and accept that the hon the Minister says it is not a myth. The homelands policy is the answer to the political issue of the Black people. Now, this newspaper said that a prominent MP said that it was the water shed. Will the hon the Leader of the House differ with me today when I tell him that there are people in his party who say that the Blacks should receive their political rights here in the same dispensation as that in which the Coloureds and the Indians are going to receive theirs?
There are no such people.
Of course there are. There are such people. There are such people in your party.
Mr Speaker, just by way of clarification, I should like to know the following from the hon member for Lichtenburg: Millions of black people outside their homelands and national states have received rights, including leasehold rights and various other rights. What is the standpoint of the CP if it should come into power? Will these people be deprived of their local franchise, and will large-scale removals of millions of Black people back to their national homelands take place?
I am very grateful to that hon member for the question he has put to me. Before I reply to the question, I just want to say something to the hon the Minister. If he is looking for someone who no longer believes in the homeland ties policy, he should begin with the hon member for Bellville. He wants to know what the answer is, now that the Black people are here. I am going to tell him what the answer is. We have a constitutional policy which states that every population group must have its own territory and that every population group must receive all the rights to which they are entitled. They will receive all the rights one could possibly be entitled to in their own territory. In other words, they may be granted ownership there; they may be granted political rights there; they may be granted trade union rights and any other rights there. We say that a member of a people who finds himself in the country of another population group is not entitled to all the rights enjoyed by that population group. That is why we say that leasehold and ownership rights of people who are not living in their own country will be phased out in South Africa. In the second place, we are not saying that those people who are at present not living in their own state should instantaneously go and live in their own state. We shall probably never arrive at a situation in which all people who are not White are living in their own states, but we also say that the development machinery should be utilized in their own states. It should be utilized to the maximum and far more stringently than is now happening in order to establish the maximum number of people in those countries. People should not be allowed to acquire ownership here, and the right to establish industries and other undertakings here in South Africa which will attract even greater numbers of people, people for whom the hon the Minister is already building three additional Sowetos. We say that those cities should not be built here; they should be built in the national states or adjoining them so that they can be incorporated in the national states. [Interjections.]
The hon members of the NP say that that is an ideal, but it is no longer practical. I say the hon members of the NP no longer have the courage and the idealism to work for such an ideal. There was a time when they did, to such an extent that while the Black population increased tremendously and in 1951 a third of the Black people were living in their own states, we found that in 1978 50% of the large Black population were living in their own states. Consequently progress was being made. What happened in the meantime was that the hon members of the NP got cold feet and became paralysed. The NP no longer has that idealism and that willpower to strive for that ideal, but we do, and the NP will still see the day when we are entrusted with that task of carrying out that ideal, and we shall do so successfully.
Mr Speaker, it was my doubtful privilege to learn of the complete ignorance of the hon member for Lichtenburg about certain matters in this House. The contradictions he indulged in at the conclusion of his speech simply defy understanding. He engaged in a vehement tirade against clause 2.
That is right. The hon member is opposed to it, but in the same breath he says that we must go and establish Black cities next to the national states. I ask him in terms of what. That is in fact what clause 2 makes provision for.
Not only Blacks states are mentioned.
The hon member has made his speech, and I listened to him without saying a word and allowed him to continue with his stupidity, since I knew that I would have the opportunity to expose him.
The hon member is now claiming that we are supposedly creating a new category for land by way of clause 2. However, with that clause we want to establish the same Black cities on the borders to which the hon member referred at the conclusion of his speech, but what must we do this with?
But you say it is not in the Bill.
We say that, and if the hon member had the sense to read it that way, he would have realized that. That is precisely the problem—that the hon member wants to read things in legislation that do not appear in it. However, I shall come back to these points later in my speech.
I have the same problem one has with all legislation dealing with Black affairs. No facet or subject affecting Black politics, as it shows its effects in this country, did not come up during the course of this debate. With all due respect, Sir, matters that had absolutely nothing to do with this legislation were discussed here. Unfortunately one now has to avail oneself of the opportunity to cover a wide field in order to reply to these arguments, particularly those of our hon friends in the CP, since their speeches were practice runs for speeches they want to go and make in Potgietersrus. [Interjections.] The hon member for Barberton must be prepared, since I shall still settle with him this afternoon. That is not a threat; only a promise. When one has to reply to a debate of this nature one really does not know where to begin, and consequently, I shall begin at the beginning. [Interjections.]
†The hon member for Berea moved the following amendment:
He accused this side of the House of coming to Parliament with obnoxious legislation. He also accused us of cynicism. In all fairness, this amendment is certainly the most cynical and frivolous amendment I have ever come across, because it does not meet the requirements of the legislation in depth. It is just a way to display his objection to the Bill. He did so in very serious terms, because to call a Bill “obnoxious” as he did, is a rather serious thing to say. I think his speech was like the curate’s egg, good in parts but damn bad in other parts, if I may phrase it that way. It was frivolous in the extreme and displayed a marked measure of cynicism. The facts regarding the various proclamations were put at the hon member’s disposal by the department, but he cast a slur on the department by saying that although he was very thankful for them having provided him with these facts and the list of proclamations that were affected by the various clauses, he still thought that they were hiding certain proclamations behind I do not know what.
I did not say that at all.
You did. You cast a slur on the department, because you said that you do not know whether there were not other proclamations …
I specifically said that I accept their bonafides.
I have read the hon member’s Hansard.
I was pleased for the measure of support which I received from this hon member. He made a few positive contributions to the debate , but as I have said, parts of it were so bad that I am not really very appreciative of his contributions.
I am not a jurist, but I would like to refer the hon member to the judgment in the Ingwavuma case. Why he chooses to drag the merits of the Ingwavuma case into this debate, I would rather not contemplate, because I think it is completely unnecessary. The merits of the Ingwavuma case have absolutely no bearing on what we are busy with here this afternoon. It only illustrates a certain shortcoming in our legislation which we are now putting right. The Ingwavuma case as such has absolutely nothing to do with this legislation. I suppose it is his right as a member of the Opposition to express himself about the matter in the way he did and I do not want to cross swords with him, but I do feel that he should see the events following on that case and which terminated in this legislation in the right perspective. I wish to quote the following from the judgment:
The court further held—
*We find ourselves in the difficult position that we cannot find a readymade definition of “consultation” in any dictionary. I could not find an explicit and clear explanation of the concept “consultation” in any English or Afrikaans dictionary I was able to consult. I would suggest that in its broadest sense, “consultation” cannot be defined in absolute terms.
Of course, it is the right of any respected judge when evaluating a matter such as this before him to find a definition for himself against which he can assess the facts of this matter. That is obvious. Not only is it his privilege, but it is also his duty to find a definition for himself against which he can assess the facts of this matter and on the basis of which he can decide whether the consultation was sufficient and whether it was effective and efficient. Unfortunately we are not privileged to have the thinking of the respected judge at our disposal in this particular case. We do not know what norms he used when he decided that there was no consultation as prescribed by the Act. However, we accept it. We also said that we accept his ruling in the Ingwavuma case that consultation did not take place to the extent that it should have taken place. We can find no fault with that. That is why the legislation has been drawn up as it has. However, we have the problem in respect of the proclamations that have been issued since 1971, in that we have no norm with which to assess legally whether they comply with the requirements the judge linked to “consultation”.
However, the department took legal opinion on this matter which is serving as a norm to us and we used that norm to ascertain what kind of consultation should take place, how it should take place, etc. In view of that I want to dwell for a moment on the nature and extent of consultation required in terms of sections 1(2), 2(3) and 26(1) of the Constitution of the National States. Those provisions empower the State President to take certain steps after consultation by the Minister of Co-operation and Development with the executive council in the case of section 1(2), or the Legislative Assembly in the other case, in respect of an area for which such an assembly has been established. In terms of section 29(2) it is the Cabinet of a self-governing area that has to be consulted in the case of section 1(2). The consultation required can be summed up as follows in terms of legal opinion:
I now want to tell the hon member for Berea why consultation is required in this legislation. The answer is very simple. The way in which consultation has to take place is not prescribed in this Bill. It is not prescribed how it should take place, for how long, where it should take place and what the consultation should be about. The Minister can pursue the method he sees fit to pursue as long as he acts reasonably and in good faith and allows justice to be done. Consultation could even be in writing, or by way of talks, or both.
The standpoint is incorrectly adopted and clause 12 aims at legalizing a number of proclamations that are invalid in this way. The hon member for Lichtenburg, who is not here at present … [Interjections.] I beg your pardon. Hon members need not become hysterical. The hon member was not in his seat. The department has no doubt that talks and consultation did in fact take place with the governments concerned before the proclamations were issued. I want to repeat that, since the accusation is being made against us that since we are declaring certain proclamations legal in clause 1, clause 12 provides that this series of proclamations shall be deemed to be preceded by consultation. There is ill feeling towards us because of this now, and we are being accused of all kinds of motives, inter alia that we are legislating for a lie. There was consultation in any case. After the verdict of the Appeal Court in the Ingwavuma case the department requested legal opinion on the meaning of consultation, as I have just spelt out. Negotiations did not only take place with the various governments concerning this particular clause, since this is not concerned with new matters, nor does it alter any position which affects them. The proclamations which are now deemed to have been preceded by consultation, as provided in clause 12, were in fact accompanied by consultation. We are not sure whether a court could rule against us again, since anyone could invoke the courts for the purposes of a court case and claim that there was insufficient consultation. We are then in danger of losing the case again. Hence the fact that provision is made in the Bill that consultation is deemed to have taken place. It did in fact take place, but we are not sure whether it took place in terms of the court’s definition of consultation, or whether the court will regard it as being sufficient and adequate.
It is conceded in the legal opinion that that possibility exists. If one looks at the list of proclamations which are now deemed to have been preceded by consultation, one will understand that it is practically impossible to define what kind of consultation took place in each case. There are quite a number of proclamations that were promulgated as a result of motions by the Legislative Assembly. The court could very easily decide that because certain additions to land had been requested by way of motions by the Legislative Assemblies concerned, it could be argued in the Supreme Court that that was not consultation, but simply a motion of the Legislative Assembly concerned. Sir, you can see what an impossible position we could find ourselves in. We have a duty towards the Legislative Assemblies to bring about certainty in law in respect of matters that are of fundamental and vital importance to them. For the hon member Prof Olivier to claim that we are legislating for a lie, is absolutely absurd. That is a purely academic way of thinking. He is not a politician. That is why he did not come to this House as a politician, but was nominated. He is sitting here as an academic, and he still thinks like one. I really do not have anything against academics, but I sometimes wonder about some of them.
The department has therefore taken the initiative in obtaining certainty in law in this matter. It must also be emphasized that it is not foreseen that any steps will be taken against the governments with regard to these proclamations. However, we have to play safe and deal with the matter in such a way that that possibility is excluded completely.
The hon member for Berea complained a great deal about the “tardiness” we are supposedly displaying in the transfer of land to Black governments. The same accusation was also made by the hon member for Lichtenburg, as well as other hon members. This matter is not as simple as it sometimes seems on the face of it. In terms of the 1975 consolidation proposals, various poorly situated areas and Black spots in Natal must become White, and the priorities for purchasing that land were aimed at first obtaining compensatory land, and then obtaining land for certain projects—compassionate cases—and finally obtaining quota land. The land purchased in this way was approved by Parliament in 1973 and 1975, and acquired in terms of the provisions of section 10 of Act 18 of 1936. Such compensatory land first has to be planned and developed before settlement, before people can be resettled there. In view of world opinion, in view of opposition from the opposite side of the House, and in view of incitement by organizations like the Black Sash and the UDF, and the deuce knows who else, we are having tremendous problems in persuading people to move. It sometimes takes years of continuous convincing. Before the co-operation of at least a group is obtained, full particulars cannot be obtained and surveys cannot be conducted. Without a survey to obtain proper data, the land to which they are being removed cannot be planned and developed. The planning and development have to be discussed with the people. It is Government policy to hand this land over as soon as possible to the independent national states and the self-governing states. It is not always possible to transfer such land to the national states before people have been settled there, since if it were to be transferred before people have been settled there and the national states were to use it in a way which is counter-productive to the purpose for which it was purchased, in terms of the Ingwavuma verdict we cannot take the land back and tell the people that it is not going to be given to them because they used it for a purpose other than the purpose for which we envisaged it. That is why we have to act with a great deal of circumspection and we must take the general public opinion on the resettlement of people on that particular land into account. It is therefore the Government’s policy to keep the land which is purchased in production in the interim, until it can be utilized for the purpose for which it was purchased. Consequently, it is either leased to White farmers or to corporations, in certain cases even to the corporations of the national states, in order to maintain and expand on the production on the farms so as not to allow them to become neglected so that what is already there can be retained and maintained. We will find that these farms will remain uncultivated, or if we hand them over to a national state, they may use the land for purposes other than the purpose for which it was purchased, or it may be neglected, or we may find that squatting, over-grazing or mismanagement is taking place to the extent that that land is completely worthless within a few years.
The hon member put a specific question to me with regard to Eshowe, Empangeni and Mtubatuba. Parts of reservations 17, 5, 3 and 4 have to become White. The land was purchased for that purpose at that time and therefore falls into the above mentioned categories. Only once the commission’s final consolidation for kwaZulu has been approved by Parliament can there be further decisions about that land. It must also be borne in mind that once land has been included in a national state’s area of jurisdiction, we cannot take it back again and use it for a purpose other than the purpose for which it was meant.
It must also be mentioned here that when it is necessary to lease farms back to farmers, they are merely sugar plantations, and lessors who have quotas with sugar mills are not happy if they cannot obtain contracts for six to seven years, since the cycle of sugar is between six and eight years. It is therefore counter-productive to hand over land to the Black national states hastily, and it is certainly not in the interests of either the RSA or the national states.
As the hon member for Helderkruin said this morning, it is a great pity that the hon member for Bryanston used the term “legalized fraud”. I regret that the hon member is not present now, since what I have to say about this I would rather say in his presence. He is elevating obnoxiousness to the level of a principle. I think it is time he changed his attitude, for whilst the cloak of obnoxiousness may suit him, it certainly does not befit the image of this hon House. I hope the hon member’s colleagues will convey this to him.
I come once again to the proclamations that were issued and of which the hon member for Berea obtained a copy. As a result of that he made the accusation that he was not so sure that there were no more proclamations, proclamations which we are too ashamed to disclose. However, I can assure the hon member that out of the 82 proclamations that were promulgated in terms of the Constitution of National States, 1971, there was only consultation in respect of 35 of them in the light of the verdict of the Supreme Court. As regards the remaining 47 proclamations, it cannot be determined whether or not consultation did in fact take place. Having received motions from the Legislative Assembly, we now have to determine whether or not there was consultation. We have studied this in depth and we are introducing this amendment to make sure of this. So much for my replies to clauses 1 and 12.
I now come to the hon member for Pietersburg. If there is one hon member who is a disappointment to me, it is that hon member. I became aware of him as a very competent medical practitioner. As far as his training is concerned, he studied at the same university as I did.
I did not know that there were liberal Tukkies, too.
Jan, when I speak to you, I speak to the hon member for Kuruman. I do not happen to be speaking to you now. I shall deal with you later. [Interjections.]
Just calm down a little. You are much better when you are calm.
Frank, I am just as calm …
Order! No, the hon the Deputy Minister must not address other hon members by name.
I apologize, Mr Speaker, but those hon members must not provoke me. [Interjections.]
Order! The hon the Deputy Minister must not allow himself to be so easily provoked.
Mr Speaker, with all due respect, that is a weakness I have, but I shall try not to succumb to that weakness. [Interjections.]
The hon member for Pietersburg received a very thorough training. He was taught to strive for reality and the truth with clinical precision. He was also taught to dispel fantasy from his thoughts. What did the hon member do yesterday afternoon? The hon member tried to create the impression—that is the same mistake the hon member for Lichtenburg and the hon member for Barberton made—that we are going to take White land and give freehold to the Blacks. The hon member also claimed that we are creating a new category of land. Surely that is not true, Sir. If the hon member had read the Bill properly, he would realize that that way of thinking is not clinically correct. Those proclamations are being issued in terms of sections 2 and 49 of the Act of 1936, and those provisions have been on the Statute Book for years. All we are doing now is to modernize that legislation to adapt to the new circumstances.
I now want to tell the hon member something which he has probably never thought of. There is a Black town by the name of Evaton in the constituency of the hon member for Meyerton. That hon member is also aware that there are Black people in Evaton who have freehold. Does the hon member for Pietersburg know that? [Interjections.] Why did that hon member make the accusation, if he knew that, that land tenure is now being linked to the franchise? Do those Blacks who have freehold in that hon member’s constituency—they are citizens of South Africa—have the vote in this Parliament? I am putting that question to the hon member. They do not have the vote. [Interjections.] No, the hon member for Lichtenburg must not try to assist the hon member for Pietersburg now. I shall come to the hon member for Lichtenburg later. Surely the hon member for Pietersburg knows that that is an untruth. Surely there is no connection between the franchise, freehold and citizenship, not in these particular cases. Does the hon member know that there are similar cases in Grahamstown? Is the hon member also aware that there are many of these scheduled areas where there are people who have freehold, but who do not have the vote? Oh no, rubbish, Mr Speaker, the hon member must really not violate his whole background by using such spurious arguments. Surely he knows better. Why did he use those arguments? He is really casting a reflection on this own training by doing so.
I also want to ask the hon member where he got the idea that the linking-up concept no longer exists. I should very much like to know that. The hon member for Pietersburg and the hon member for Kuruman asked me whether Khayelitsha was also going to be dealt with in terms of the provisions of clause 2. How can one hold the view that Khayelitsha will be declared a scheduled or released area and that the Black people will then obtain freehold there in terms of the provisions of this clause? Surely it is absolutely ridiculous even to entertain that idea.
Mr Speaker, would the hon the Deputy Minister support us if we were to move an amendment which would place it beyond any doubt that this could not happen in respect of land that does not belong to Black states?
This clause does not need an amendment, because it does precisely what the hon member wants it to do. It does not create a new category of land, as the hon member claims. Over the years Parliament has always had the say about creating that particular land. I shall come back to this in a moment. The hon member must just afford me the opportunity of doing so.
The hon member also asked me whether clause 14, which covers the question of the transfer of Black employers to Black local authorities, also applies to Whites? Of course not. This clause deals specifically with the transfer of Blacks, and I made this very clear during the Second Reading speech.
That does not appear in the Bill.
What does not appear in the Bill? Does the Bill say anything about Blacks or Whites?
What does it say? Really, Sir, I am replying to the hon member because he put a question to me. Now he wants to argue with me across the floor of the House. The fact is that this only applies to Black people, and not to Whites, because Whites have the right to transfer with the aid of their pension rights, but Blacks do not. The hon member also stated that the quota determined in 1936 has now been effectively abolished. I find it very odd that the hon member is only bringing up the question of the abolition of the 1936 quota now. The hon member for Lichtenburg read to us from a document—the hon member for Pietersburg was still a member of the NP when that document was issued—in which the hon the Prime Minister announced that although it was not the policy, we did not deem ourselves bound to the 1936 quota; in other words, we have never regarded the 1936 quota as a sacred cow. However, what that hon member does not know is that the hon member for Lichtenburg was co-author of that document. Moreover, the quota was exceeded for the first time when he was the Deputy Minister.
That is not true.
The quota was exceeded for the first time in Natal in 1979, and the hon member for Lichtenburg was the Deputy Minister then.
I did not exceed it.
Then who did? It certainly was not exceeded by me. Let us take a brief look at a few things. I have here a report which is issued by the Auditor-General annually, a report about exceeding the quota. I have the report for 1978-79, as presented to Parliament by the Auditor-General. It states that the quota was exceeded in the case of Natal. I have the report here, as I have said, and if the hon member wishes to see it, I can make it available to him.
Mr Speaker, may I put a question to the hon the Deputy Minister?
Sir, I shall afford the hon member the opportunity to put a question to me, but it must be the last one. He has had his turn to speak, and I do not know why he wants to make another speech by way of questions.
Mr Speaker, in order to have been able to exceed the quota, I would have had to purchase land which was not approved by Parliament in 1975, and I now ask the hon the Deputy Minister to give me an indication of when land was purchased that was not approved by Parliament.
The hon member reminds me of Shakespeare: “The lady protesteth too much.” It indicates very clearly here that the quota was exceeded by 30 574 ha in Natal in 1979-80. This was reported to Parliament. Apart from the fact that it took place under the administration of the hon member, the hon member for Sunnyside was a member of the Select Committee on Public Accounts. Did he ever report this matter to the hon member for Lichtenburg? That was before the establishment of the CP. He was a member of the Select Committee on Public Accounts in 1979. Can he dispute that? He did not object, however. Let us go a little further. In 1980-81 the quota was exceeded by 43 396 ha in Natal.
Who was the Deputy Minister then?
It is quite correct that there was a different Deputy Minister then, and I am not complaining about that. However, the hon member intimated that no quotas were exceeded in his time, but quotas were in fact exceeded in his time, and that is the only point I want to make. I shall give further figures in a moment. The Auditor-General reports that the quota was exceeded by more than 43 000 ha in Natal in 1980-81. Do hon members know who served on the Select Committee on Public Accounts then? The hon members for Barberton and Sunnyside! As far as I could ascertain, they have not expressed an opinion about this, but if they have, they must correct me, since I do not want to do them an injustice. [Interjections.] I find that the Auditor-General reports in respect of 1982-83 that the quota was exceeded by 136 000 ha in the case of the Transvaal, and by 58 000 ha in the case of Natal.
He is talking nonsense now. [Interjections.]
Is the hon member really so arrogant as to tell me that I am talking nonsense when I am quoting from official documents of this House? With respect, Sir, the hon member should be called to order because he is questioning official documents of this House.
I shall enter the debate during the Committee Stage.
I only hope that the hon member is not going to exit at the same time. [Interjections.]
I say that 136 000 ha is a disturbing quantity by which to exceed the 1936 quota.
The hon member can hold that opinion if he wishes, but that is not the point I want to make. I can find no fault with the hon member’s opinion that it is disturbing. What I find so dreadfully disturbing is that the hon members of the Select Committee on Public Accounts, who belong to the hon member’s party, did not do their duty and report it to the hon member. I find this disturbing. What I find still more disturbing is the fact that they did not make a point of …
At that time they were still members of the NP.
Was the hon member a member of the NP in 1982-83? [Interjections.] Why, then, does that hon member talk nonsense?
May I ask the hon the Deputy Minister a question?
No, the hon member forfeited his turn to speak by talking a lot of nonsense.
The hon member said that I should give him the assurance that farmers would be given priority as regards the leasing of land purchased by the SA Development Trust. I just want to remind the hon member that the SADT did not purchase the land in order to lease it to farmers but for the purpose of consolidation with Black national states. It is true that farmers obtain the opportunity to lease that land if for some reason it cannot be transferred immediately to the national states. However, when there is a project on such land which has to be protected and for which the necessary skills are not yet available in the national state, the land is transferred to the Development Corporation for the further expansion and development of this specific project, and surely no fault can be found with that. The hon member cannot expect the department to give him the assurance that land will not be transferred to the development corporations but to specific farmers. They might as well go and tell that to the people of Potgietersrus right away. They are sure to find some way of putting it so as to give the impression that the Government is against the farmers.
I now wish to come back to clause 2 of the Bill. The hon member for Barberton referred to this clause. While I am speaking about the hon member for Barberton, I just want to remind this House that on a previous occasion I confessed here that many years ago, when the hon member came to university as a first-year student and I was a second-year student, it was my unedifying task to initiate him. Hon members will recall that I confessed at the time that I had failed miserably to make a person out of him, and this fact has been emphasized repeatedly in the debate. I found his speech a traumatic experience, because I realized that in all the years since then, together with the fact that I have spoken about it in the House, have no had an effect on the hon member. I now want to refer to another incident from the same period. When I asked him what he had come to do at university—at that time he was such a fine young man, with a face the colour of that part of a baby’s anatomy that one covers with a nappy—he replied: “Ek kom bekruip die regte” To my absolute amazement I discovered that he was also stalking politics. In the time that he was applying this stalking technique of his he learned another skill, which is of course vital to practising that kind of politics. He became a political sharpshooter. He leaps up and thunders that our leaders are going overseas and begging money for “our allies, Mozambique”. He advances no evidence whatsoever to support this statement. All we get is this thunderous statement from behind a stalking horse. Where he is hiding among the bushes I do not know. However, he is so busy stalking that he has in fact lost his vision for the future. All he sees are bushes and things to use as cover.
Be that as it may, however.
You are becoming a better clown than “Nak”.
That was surely never in dispute, was it? [Interjections.]
Order! The hon member for Brakpan must withdraw the word “clown”.
I withdraw it. Sir.
I complained that the hon member for Barberton made allegations he was unable to prove, and that, of course, was done with Potgietersrus in mind. But by means of that statement he has let his slip show … [Interjections.] … because he very reluctantly accepted the whole Nkomati Accord. I do not know whether he has done so, but I should commend it if the hon the Prime Minister, while he is overseas—and there must be no doubt about this—were to make an appeal to countries to support Mozambique financially for the sake of its development. However, the hon members of that party have a war philosophy—“daar kom die Impi’s!”. If they had sung “Daar kom die Alabama”, it would have suited them much better, but they are still concerned with the Impis. We shall achieve a great deal more by living in peace with our neighbouring states. We can only maintain and develop peace with our neighbouring states if they prosper economically. Therefore, if I were that hon member and I lived near that territory I should not make derogatory remarks if my leader requests that other countries support Mozambique financially. However, I object most strongly if he pretends that the money is being begged by us to assist Mozambique. That is a total untruth. You see, Sir, we are constantly getting a thunderous salvo from his sharpshooter’s rifle or catapult—I do not know what he uses to shoot with—after which he disappears, in order to stalk once again.
The hon member for Pietersburg raised the matter of the investigation into the development corporation. I am informed that that investigation has already made considerable progress. I recall that the hon member was invited to submit evidence. He is also the man who broached the matter here. He mentioned to the hon the Minister that irregularities had taken place, etecetera. Therefore he was invited to submit evidence before the commission which has been investigating this matter for some time now, but so far he has failed to submit evidence in order to contribute towards the findings of the commission.
Mr Speaker, may I put a question to the hon the Deputy Minister?
No, Sir, I am not prepared to answer questions. That hon member should have asked his questions when he took part in the debate, not now. [Interjections.]
The Chief Whip has given instructions. [Interjections.]
Sir, I am very sorry, but this afternoon I used the words “I instruct you”. What I meant was “I request you”. The hon member is going to be very sorry that he did not comply with my requests. That is still going to happen to him. I am sorry that I spoke about an instruction.
I now want to refer to the progress made with consolidation, because this is certainly an important matter for many people. The hon member for Lichtenburg accused us of having made no progress whatsoever over the last number of years.
I was speaking about resettlements.
No, the hon member spoke about consolidation. He did not speak about resettlements.
The proposals with regard to the Ciskei have been finalized and disposed of, with a few minor adjustments. As far as Venda is concerned, the consolidation programme as announced by former Minister Botha has been disposed of, and minor adjustments also have to be made. As far as Bophuthatswana is concerned, the commission has already submitted proposals to the Government and these are at present under consideration. That will finalize the consolidation of Bophuthatswana as well. As far as the national states are concerned, as regards Qwaqwa the Government published proposals in May for the final consolidation of Qwaqwa. As far as kwaNdebele is concerned, proposals in regard to this state were submitted to Parliament in 1983. The purchase of the land approved for additions has priority at present and the land is now being purchased. The hon member for Lichtenburg knows what the problems are with regard to kwaZulu, because he himself had to do with them. The commission has now been directed to proceed to submit plans to the Government with regard to the consolidation of kwaZulu. As far as Lebowa and Gazankulu are concerned, the commission has submitted proposals to the Government in respect of both areas and these will be published as soon as certain internal border adjustments and arrangements have been finalized. As far as Kangwane is concerned, as in the case of kwaZulu, the commission is expected to be able to submit proposals to the Government shortly. That, then, is the progress made with consolidation.
I now turn to the question of the financing of consolidation. The hon member for Lichtenburg knows—perhaps more than any other hon member—what the problems are that the Government has been faced with in implementing its consolidation plans. The hon member knows that in his time he was never able to obtain sufficient money to consolidate as he wished. Then, too, there is the problem of the availability of staff to carry out the process of consolidation. There is and have been all kinds of problems, and one cannot simply level random accusations at the Government that nothing is being done about consolidation. The facts and the realities of the situation, particularly the economic situation, must be taken into account.
In terms of the 1936 Act, altogether 6 332 171 ha of land had to be purchased. The Commission for Co-operation and Development indicated that the stage had been reached that virtually all compensatory land had already been purchased, with a few minor exceptions, but that due to various factors it has not been possible for the physical resettlement programme to keep pace with the purchases. At this stage, therefore, the purchasing programme is far in advance of the resettlement programme. Apart from the large areas purchased by the Trust thus far, there are other large areas that have to be acquired—we concede that—in respect of areas which, with the agreement of Parliament, have since 1974 been earmarked for allocation to Blacks. Increasing political pressure is being exerted to purchase the remaining areas as expeditiously as possible, and once this is finalized it will mean that the fixed quotas of land in terms of the 1936 legislation will be exceeded by an even greater margin. We make no secret of it. It is a fact. The consolidation plans approved by Parliament since 1972 are based on the total area of quota land that can be obtained in the four provinces in accordance with section 10 of the Development Trust and Land Act. We cannot, simply because we are exceeding the quota, stop purchasing, or bring the whole process to a halt. What chaos that would cause! What uncertainty that would entail! Therefore we have to continue purchasing. Large tracts of land have already been purchased which ought to be or will be utilized as compensatory land. We can also classify other land as White, which would balance out the issue. Therefore, it is impossible to say with any degree of certainty at this stage by how much the quota will ultimately be exceeded, because this is a fluid situation. One day it is less and the next it is more. This means that fixed quotas of land will necessarily be exceeded unless the purchasing programme is suspended indefinitely so that we can reach an equal basis as regards the resettlement of poorly situated of Black spots and so on.
On 31 March 1984—the hon member for Lichtenburg mentioned the figures—the quota in Transvaal was exceeded by approximately 188 000 ha, in Natal by 62 000 ha, in the Orange Free State by 9 000 ha and in the Cape by 24 000 ha. The exceeding of the various land quotas as stated above does not imply that the fixed quota as specified by section 10 of the Development Trust and Land Act will ultimately be increased overall. I want to emphasize that major variations will occur, as I have already said.
Let us consider what we have achieved in respect of the purchase of land. After all, the hon member accused us of progressing too slowly. In September 1982, during the Transvaal NP congress, the hon the Prime Minister announced that the consolidation of the national and independent Black states had to be finalized in four years and that the 1975 consolidation proposals should be given a high priority. Hon members are aware of that. The inability thus far to carry out the consolidation proposals as approved by Parliament can primarily be ascribed to an inadequate annual appropriation of funds due to the recessionary situation, whereas secondary—albeit in themselves decisive—reasons can be found in, firstly, the fluidity of those proposals, which make adjustments essential from time to time and which are significantly influenced by the new consolidation investigation ordered in February 1979, to the extent that decisions about the future of certain areas were still outstanding at the start of the present financial year.
A second reason is the downward movement of existing priorities in order to accommodate matters of absolute priority for which it is not always possible to plan in advance.
A third reason is the political climate opposed to resettlements, and the approach that resettlements should be dealt with as a development programme. I want to emphasize that it is not the policy of the Government to resettle people purely for the sake of ideological reasons. The official Opposition must take cognisance of this. In the majority of cases resettlement takes place in order to improve the living conditions of people. Moreover, it is a directive from the hon the Prime Minister that resettlements must only take place if they are development-oriented. That is the policy we are following at the moment. [Interjections.]
That is exactly what we are doing. The hon member will know himself how difficult that is. I should like to see how many resettlements he achieved in his term. I should very much like to look that up. [Interjections.]
Mr Speaker, can the hon the Deputy Minister explain just how the removal of people from Magopa, a settled rural community, to Pagsdraai has in any way contributed to their development?
This whole issue of Magopa has been so ridden to death in this House; it has been explained on several occasions by the hon the Minister and the hon the Deputy Minister of Development and of Land Affairs. However, I want to quote to the hon member her own party’s policy in this regard. Unfortunately I cannot lay my hand on it at the moment, but I shall send it to her.
At the start of the present fiancial year, after the announcement by the hon the Prime Minister, it was estimated that about R70 million would still have to be spent on land purchases in the rural areas in terms of the 1975 proposals. It is estimated that there is still approximately 80 000 ha which must be purchased in terms of the 1975 proposals, the greater part of which is situated in Natal. The consolidation of Natal is now being attended to once again. New additions proposed in the 23rd interim report of the Commission for Co-operation and Development amount to approximately R600 million. This figure is of course subject to adjustment from time to time as proposals are agreed to by Parliament or will be agreed to in the future. Based on the trend of recent decisions, however, it can be predicted that the eventual figure in respect of the new addition, together with the 1975 proposals, will amount to approximately R500 million. A further amount of R58 million is required to comply with outstanding compensation in towns, for example at Umtata and Mafikeng, while the cost of outstanding resettlements amounts to approximately R327 million. In this way an estimated 320 000 ha of land will again come available for White use. Therefore there is flexibility as far as these figures are concerned.
A total amount of R143,5 million has been appropriated for the present financial year, viz R102 million for land purchases, R15 million for purchases in towns and R26,5 million in order to proceed with the resettlement programme. The mentioned amount of R102 million is being utilized to cover expenditure in respect of certain 1975 proposals and new consolidation proposals in respect of Ciskei and kwaNdebele. The hon member for King William’s Town suggested that we also consider leasing land to farmers. This matter has been under consideration for a full year. [Interjections.]
The hon member for Houghton will now be amazed to hear that I have eventually found what I was searching for a moment ago.
†I should like the hon member for Houghton to listen to this very carefully. This is the Hansard copy of the speech made by the hon member for Berea when the Vote of this department was under discussion. The hon member said the following:
That is very clear and very plain and I have very little fault to find with it. The hon member went on to say:
As if, after having put it so clearly, there could be any further doubt! The hon member went on to say:
Is that also very clear to the hon member for Houghton? [Interjections.] Well, that is very pleasing indeed, The hon member for Berea went on to say:
Will the hon the Deputy Minister please explain Magopa to me?
If the hon member for Eloughton had listened intelligently when it was explained to her in detail by both the hon the Minister and the hon the Deputy Minister, she would know all about Magopa. I really cannot understand why the hon member for Houghton refused to listen or open her ears when this was being done.
You must go and see where they were and where they are, and then you will know why.
*The hon member for Kuruman advanced a long argument about how we would handle consolidation. He wanted to know whether this would be a general or an own affair.
Not consolidation, but land.
That is still better. The hon member asked me across the floor of the House what my point of view was in this regard. I refused to reply to that, because it is not a matter to which I can merely answer yes or no. However, the hon member will agree with me that as far as the transfer of land is concerned I emphasize the word “land” this will of course be a general matter.
Do you hear that, Piet?
That is exactly what a colleague, the hon the Deputy Minister of Internal Affairs, said here yesterday afternoon.
In the present context there are in fact two types of land involved here.
Own land and general land. [Interjections.]
When land is transferred to the national states, it is this Parliament that will have to agree to it. Is that correct? This Parliament has three components. Is that also correct? One component is the House of Assembly. Is that also correct? If the House of Assembly does not wish to agree to that transfer, what happens then?
Then the President’s Council is to act.
And what happens if the President’s Council refuses to agree to that transfer? [Interjections.] Then that is as far as it goes, not so? So much, then, for that argument.
The hon member must also realize that when we speak about land we also speak about it in the context of its control, of the purchase of land for White farmers, of how it is necessary to deal with that land, of soil conservation, drought aid, etc. All these are own affairs. This is what my hon colleague was referring to yesterday afternoon. However, the hon member did not make himself clear enough when he asked his question.
My question was very clear. It was as clear as daylight.
Sir, that hon member’s daylight clarity is more like twilight to me. [Interjections.] I only hope that we have now heard the end of that story.
However, I now turn to a very important matter. Clause 2 provides that a proclamation may be issued in terms of sections 30 of the Black Administration Act. 1927. No changes whatsoever are being effected to that situation. I have before me a stack of proclamations approved by Parliament over the years. Over the years Parliament has always had to approve that land for Black occupation or for the township establishment which the hon member advocates. In 1979 for example land was approved by this Parliament, and that is apart from this very bulky schedule whereby land was scheduled in terms of section 25 of the Black Administration Act, 1927. I have before me a report in which the Commission for Co-operation and Development, then still the Commission for Plural Relations and Development—in which the hon member for Kuruman had a seat—recommended that Black areas such as the Makatini Flats in the Lebombo district at Paulpietersburg …
The hon member was not a member of the Commission for Plural Relations and Development.
Who was not a member?
The hon member for Kuruman.
Oh really, now you are talking absolute nonsense. The hon member was a member of the standing Select Committee on Co-operation and Development. [Interjections.] Does it make any difference, then, in which commission he served? He was a member of a committee that recommended to this Parliament that the Makatini Flats, land at Paulpietersburg, Driefontein, Ladysmith and Reserve 4 at Richards Bay be declared scheduled areas in terms of the Trust and Land Act of 1936. What does it matter on which body he served? What is wrong with that? There is absolutely nothing wrong with that.
What is your point?
The point is that the party to which the hon member now belongs is reproaching us for maintaining a practice that has been followed for years, which we are now merely modernizing. He now sees concealed in that the fact that we are now going to give ownership rights to Blacks in the White areas. The hon member does not wish to understand, because I think he is simply being mischievous. That is the whole point. The hon member does not trust us. The provisions of this section have always been used over the years to establish places like Nyanga, where Blacks do have ownership rights. There is also Clermont, in Durban, where Blacks have ownership rights. We also give them ownership rights in the national states. Then the hon member comes along with his ridiculous allegation that we now want to use Bantu land for that. No, really, I honestly think that the hon member is capable of arguing at a higher level than that.
You could have proved your bonafides by supporting the amendment we are moving.
We shall see what the amendment is and I shall accept it if it is not in conflict with our aims. It is not our aim to grant ownership rights to Black people in White areas.
I am very grateful to hon members of my party who participated in this debate. I also just wish to thank the hon member for King William’s Town for a very positive contribution. The hon member made certain suggestions. I have already—in his absence, unfortunately—dealt with the cost of consolidation. If all the proposals at present before the Government were to be implemented—many of them will not be implemented and, moreover, there is land that must be reclassified as White—it would cost in the order of R600 million to R700 million. That is the eventual cost of consolidation, but that amount may be less or even more, depending on specific circumstances.
The hon member asked me to ensure that the land purchased be kept in production. That, of course, is the policy, but some hon members opposite objected to the farms being taken over by the Development Corporation instead of being leased to White farmers. We do so in many cases, but where necessary we give farms on which specific projects are being carried out, to the national corporations for further development. It will be a great disappointment to the hon member to hear me say that we were very enthusiastic champions of what he proposed. We actively promoted and propagated the idea that farmers from whom we bought land for consolidation purposes should remain on that land and keep it in production, with certain guarantees, of course. We gave them specific guarantees, but fewer than 1% of the farmers countrywide reacted positively. In fact, even the SA Agricultural Union did not want to take upon itself the responsibility of actively encouraging those people to continue to occupy their farms under certain guarantees. They adopt the standpoint—perhaps rightly so—that this is a choice which the individual as such must exercise and that the union ought not to interfere in that regard.
I want to convey my sincere thanks to hon members on my side for their contributions; they were very positive and very helpful. My time is limited, and unfortunately I cannot…
Restricted by what? [Interjections.]
Well, I cannot carry on the whole afternoon, can I? I am trying my best, but I do not think I shall succeed. What are the hon members crying about?
*I just want to convey my sincere thanks to the hon members on my side for very positive and constructive contributions. I trust that by way of this legislation, in spite of the reservations about it and the sometimes ridiculous arguments advanced against it, we are incorporating sound measures in the Statute Book. I thank the hon members for their support.
Question put: That all the words after “That” stand part of the Question,
Upon which the House divided:
Ayes—87: Badenhorst, P J; Ballot, G C; Bartlett, G S; Blanché, J P I; Botha, C J v R; Botma, M C; Breytenbach, W N; Clase, P J; Coetsee, H J; Coetzer, H S; De Jager, A M v A; De Klerk, F W; Du Plessis, B J; Du Plessis, G C; Durr, K D S; Du Toit, J P; Fick, L H; Fouché, A F; Geldenhuys, A; Geldenhuys, B L; Golden, S G A; Hardingham, R W; Hayward, SAS; Heine, W J; Heyns, J H; Hugo, P B B; Jordaan, A L; Kleynhans, J W; Koornhof, P G J; Le Grange, L; Lemmer, W A; Le Roux, D E T; Ligthelm, N W; Lloyd, J J; Louw, E v D M; Louw, M H; Malan, W C; Malherbe, G J; Marais, P G; Maree, M D; Meiring, J W H; Meyer, W D; Miller, R B; Morrison, G de V; Munnik, L A P A; Odendaal, W A; Olivier, P J S; Page, B W B; Pieterse, J E; Poggenpoel, D J; Pretorius, P H; Raw, W V; Rencken, C R E; Rogers, PRC; Schoeman, H; Schoeman, W J; Schutte, D P A; Scott, D B; Simkin, C H W; Steyn, D W; Streicher, D M; Terblanche, G P D; Thompson, A G; Van Breda, A; Van den Berg. J C; Van der Merwe, C J; Van der Merwe, G J; Van der Walt, A T; Van Eeden, D S; Van Niekerk, A I; Van Staden, J W; Van Wyk, J A; Vermeulen, J A J; Viljoen, G v N; Vlok, A J; Volker, V A; Weeber, A; Welgemoed, P J; Wentzel, J J G; Wiley. J WE; Wilkens, B H.
Tellers: S J de Beer, W J Hefer, W T Kritzinger, C J Ligthelm. L van der Watt and H M J van Rensburg (Mossel Bay).
Noes—32: Andrew, K M; Bamford. B R; Boraine, A L; Burrows, R M; Dalling, D J; Eglin, C W; Gastrow, PHP; Goodall, B B; Hartzenberg, F; Hoon, J H; Hulley, R R; Langley, T; Le Roux, F J; Moorcroft, E K; Olivier, N J J; Savage, A; Scholtz. E M; Schwarz, H H; Slabbert, F v Z; Snyman, W J; Suzman, H; Swart, R A F; Tarr, M A; Theunissen, L M; Uys, C; Van der Merwe, S S; Van der Merwe, W L; Van Heerden, R F; Van Zyl, J J B; Visagie, JH.
Tellers: G B D McIntosh and A B Widman.
Question affirmed and amendment dropped.
Bill read a Second Time.
Mr Speaker, I move:
The increasing interest in the law of matrimonial property in the RSA on the part of the legal academics, women’s associations as well as the Government is based on a recognition of the fact that our legal system must keep pace with changing social circumstances and the greater economic participation of women. It goes without saying that the law itself should be adapted in such a way that it will not be an obstacle, but rather an instrument for regulating legal processes involving husband and wife in an orderly way. There are several foreign models that could be slavishly copied with a view to effecting essential reforms in the sphere of matrimonial property law. However, the RSA has its own particular existing system with circumstances that are peculiar to this country. For this reason, the Government proceeded from the standpoint that the RSA had to find its own solutions in an evolutionary way with the least possible disruption and interference and that an attempt should be made to avoid, as far as possible, any Government intervention in decison-making with regard to civil law relationships. This was the first premise from which I proceeded in deciding whether there was any need for an adjustment in our matrimonial property law.
In the second place, the Government accepted it as an accomplished fact that the evolutionary course of the emancipation of women had been virtually completed in the RSA as well, and it would be a foolish government which failed to recognize the reservoir of talent and ability in the professional and economic spheres which is to be found among the women of the RSA. Since women are moving and competing on an equal footing with men, we must ensure that the institution of marriage is not harmed because the parties, and especially the wives, as fully emancipated beings, find the present patrimonial arrangements unsatisfactory, with the result that they get divorced or even refrain from marrying.
While I am dealing with the emancipation of women, one is struck by the fact that law reform has frequently has to take cognizance of women in the past. Solon, the great Greek reformer, regulated the position of women in society by means of several edicts many centuries ago. One edict provided that the only dowry a bride was allowed to bring into the marriage was three dresses and a few pieces of furniture; because, he argued, marriage should not be entered into with a view to profit, but a man should enter into a marriage for love and with a view to procreation. He also dictated that women should take only three dresses with them when travelling, and he regulated their participation in festivals and the way in which they had to mourn at funerals. All this he did in an attempt to get women to behave more like men!
†Today, I am glad to say, it is a far cry from the situation when women in countries all over the world had to fight administrations, judges and lawyers tooth and nail to gain entry for women to universities and into professions. Feminists believed that the prime consideration was for men to keep the lucrative professions to themselves but that male chauvinism justified their solipsism on the basis of maintaining professional standards. We are also a far cry from the situation where notably overseas countries busied themselves with the vexed question whether the words “person” and “citizen” also included “woman”. The South Africa mind has always placed the woman on a pedestal and, although it may have been experienced as discrimination in some quarters, it was this very respectful approach—for instance, towards the hon member for Houghton—towards the female species of our kind that paved the way for evolutionary emancipation of women in economic and social areas. In fact, in 1984 we can state that, on average, the South African stage is set for men and women to be different yet complementary not only biologically, but in all other respects; to be separate human beings, but equally entitled to opportunities and advancement; and, may I add, from whom may be exacted equal but possibly different responsibilities in all spheres of life. Statistics relevant to the South African situation in fact show that the share which economic active women have taken in the labour market has grown with almost 6,3% over the ten-year period 1970 to 1980, whereas the male share has decreased by 8,4% over the same period. More significant is that in 1960 there were 85 865 women involved in professional and technical activities. In 1980 there were 273 240 thus involved, an increase of 218,25%. This growth resulted into a further most astonishing 1980 statistic of which we should take note, namely that women’s share in the occupational group of professional, technical and related workers, was then 43,9 and the male share 56,1%.
*It would indeed be irresponsible to ignore such facts. The significance of this is that women are increasingly participating in the economy, earning an income and building up an estate or contributing to the building up of an estate. It is not far-fetched to suggest that in some marriages, the wife as a professional person may have the bigger income and build up the bigger estate, while the husband may make an indirect contribution or may even have to play a more active role in certain marriages in future, or may even have to raise the children. We are not closing our eyes to realities. In fact, we should be optimistic about this and we should welcome the broader economic base and deal with the consequences, including those relating to matrimonial property law. This is a further point of departure.
It is appropriate that we should give credit to personalties such as Olive Schreiner, who put the case of women in South Africa in such a dignified way, with far-reaching positive, although delayed, results. Then there was Mrs Bertha Solomon, who contributed her share and women such as Mrs M Jansen, wife of a former Governor-General, Mrs J M Raath of OVV fame and Professor C Searle. Then there is the hon member for Houghton, Mrs Helen Suzman—you will allow me to mention her by name—who certainly deserves recognition, and the same applied to the large number of women’s organizations and their chairwomen, or chairpersons, and presidents. While in the past, the emphasis was laid mainly on the status and contractual capacity of women, the new generation of female intelligentsia, including people such as Miss Justice Leo van den Heever and Professors Francis Bosman and June Sinclair, has examined the patrimonial aspects of modern marriage with clinical logic. The contribution made by the Law Commission is well-known, and so is the role of the select committee under the chairmanship of the hon member for Mossel Bay, to which we owe a debt of gratitude. The contribution made by Advocate Willie Henegan of the SA Law Commission is also well-known. His professional contribution to the Bill is indeed outstanding, and so is that of the deputy chief Government law adviser, Dr Botha. When I add the academic weight of men such as Professors Andreas van Wyk, ADJ van Rensburg and A H Barnard to that of the male members of the select committee of Parliament, and of Parliament itself, I come to the conclusion that the law reform which is being introduced today was made possible by male insight and the desire of men to ensure justice and fairness and even to enter into new partnerships. However, I want to emphasize that with the exception of the facet of marital power, the rest of the reforms could equally benefit a male spouse, where the wife is the person who builds up the bigger estate, for example.
The Bill is the result of an investigation of matrimonial property law by the South African Law Commission and a subsequent inquiry by the Select Committee on Matrimonial Property Law. In addition to investigating and comparing several overseas legal systems, the Law Commission published three Bills for comment in the course of its investigation. As one could have expected in a legal field such as matrimonial property law, there was a great deal of widely divergent reaction to the published Bills. The reaction to an invitation to comment during the course of the investigation of the select committee was of a similar nature. The acceptable recommendations for reform arising from the two investigations which have been embodied in the legislation fall into three categories, namely reform with regard to marriages out of community of property, reform with regard to marriages in community of property, and reform with regard to a number of aspects which are closely related to the field which has been investigated.
Sir, allow me to give a brief outline of the historical background. According to Roman Dutch law, it was in fact possible for prospective spouses to provide for a deferred community of profit and loss by way of an antenuptial contract. Initially, a diversity of contractual forms were used at the Cape, until the practice developed about a century ago, mainly under the influence of English law, of the large scale use of the standard antenuptial contract, in terms of which a system of complete separation of property is brought about. A survey conducted in a deeds registry in 1980, in the course of the Law Commission’s investigation, revealed that only 2,7% of marriages out of community of property deviated from the standard contract. The main shortcoming of the system of complete separation of property brought about by the standard contract is that it does not make adequate provision for a distribution, upon the dissolution of the marriage, of assets acquired by the spouses through their joint efforts during the marriage. The result has been that one of the parties has been placed in an unfavourable position.
This adverse effect of the standard contract could be remedied if prospective spouses were to make freer use of other forms of antenuptial contract permitted by our law, especially a contract excluding community of property, while retaining community of profit and loss. Although the use of such a contract and similar contracts has been strongly advocated in law journals over the past three decades, and although suggestions have even been made as to how contracts of this nature could be worded, contracts departing from the standard contract have found little application in practice.
This state of affairs brought law reform to a crossroads where decisions had to be taken which could have a drastic effect on the future development of our matrimonial property law. One possibility would be to provide for a discretionary judicial power to order an equitable redistribution of assets upon the dissolution of the marriage, as has been done in several countries where the law provides for complete separation of property. As a cornerstone for the development of our matrimonial property law in the case of future marriages, this approach of a free judicial discretion is unacceptable. The other possibility is reform in terms of a system which works according to fixed rules, a system in terms of which the parties know in advance which options are available, and a system in terms of which the final result can be determined by the parties themselves in advance.
†A matrimonial property system utilizing fixed rules can take the form of either real community of property or deferred community of property on the one hand and separation of property on the other hand. In the Bill before the House the former is incorporated as the legal dispensation and the latter as a secondary system, thus retaining the advantage of two matrimonial property systems which South Africans have had for more than three centuries.
Flexibility of choice and combination of options render the legislation an admirable exercise in the creation of machinery to be utilized by couples, present and future, at their liberty. It also poses a challenge to couples to seek the true meaning of consensus and partnership. Traditionally community of property has been strong on economic equality but weak on legal equality, while complete separation of property has been strong on legal equality but weak on economic equality. The Bill is aimed at ensuring both legal and economic equality for both systems and for both spouses in marriages contracted after the commencement of the Bill, while at the same time making provision for people married before the commencement of the Bill to enjoy the benefit of the reform. Community of property will remain the system which comes into operation by law unless it is excluded in terms of an antenuptial contract.
While complete separation of property in existing marriages has resulted in legal equality the corresponding lack of economic equality has resulted in hardship on divorce, especially after the abolition of the fault principle in the Divorce Act of 1979 in favour of the principle of irretrievable breakdown of marriage. It is when the marriage breaks down that the wife who has devoted all or much of her time to her work in the home and the rearing of the children frequently finds that she has nothing or very little she can call her own. Even where the wife enters employment away from home her earnings are often less than the husband’s earnings. To deprive the wife of a share in her husband’s financial success amounts, as the Law Commission has said, to “a disregard of the intangible, but nevertheless indispensable, contribution she made by providing him with the pleasure of a pleasant home, companionship and all the other advantages of married life”. After making full allowance for the fact that many husbands are generous and not all wives play their part, I have come to the conclusion that an amendment to the Divorce Act, 1979, is necessary to make provision for the equitable judicial distribution of assets on divorce in existing marriages where community of profit and loss has been excluded or which are not subject to any form of accrual. Provision is therefore made in clause 36 of the Bill for an appropriate amendment of the Divorce Act, 1979. Such an approach is, as I have indicated, not acceptable for the future development of the matrimonial property law. I must sound a warning that this clause leaves no room for adventurous partners.
*In dealing with the Bill, it is not necessary to refer to every clause individually, since a comprehensive memorandum has been made available to the Press and to speakers in this debate. Therefore I shall come back briefly to the first facet of the proposed reform as embodied in the Bill and I shall begin by discussing the proposed changes in the case of marriages out of community of property. I shall briefly outline the principles of a system of accrual.
In Chapter 1 of the Bill, provision is made for a matrimonial property system—known as the accrual system—in terms of which the accrual, ie the net increase in the respective estates of the spouses during the subsistence of the marriage, is equally divided at the dissolution of the marriage, whether by death or divorce. If the parties to the marriage elect to marry out of community of property and if they conclude an antenuptial contract in terms of which community of property and community of profit and loss are excluded, the accrual system will apply. Prospective spouses to whom the accrual system is not acceptable, but who nevertheless wish to marry out of community of property, can expressly exclude the accrual system and regulate the patrimonial consequences of their marriage as it suits them.
Clause 2 of the Bill is specifically worded in such a way as to discourage the use of the standard antenuptial contract, except in cases where it might conceivably be the best choice after all. If persons wish to marry out of community of property, their attorney will now have to present them with the choice of whether they wish to exclude the accrual system from their marriage. In this connection, a great responsibility will rest on our attorneys and notaries—in whom I have great confidence—and I want to address a serious appeal to them to help the public, to whom this legislation will initially be unfamiliar, to make a wellconsidered choice.
An important objection which has been raised in other countries to systems similar to the accrual system is the fact that the principle underlying such systems, namely that spouses should share equally in what has been acquired through their joint efforts during the subsistence of their marriage, is seriously undermined by inflation. The net value of the assets which a spouse possesses at the commencement of the marriage, expressed in terms of money, depreciates unrealistically compared with assets acquired subsequently, and it is essential that any realistic accrual system should provide for the fluctuation in the value of money. For this reason, it is being provided in clause 4(l)(b) that the commencement value of an estate should be arithmetically adjusted in accordance with the value of money as at the dissolution of the marriage, and for this purpose, the weighted average of the consumer price index will be taken as prima facie proof of the fluctuation in the value of money. As far as I know, this is the first statutory provision of its kind in our private law which recognizes a degree of valorism, as against monetary nominalism. It is a development in our law to which our academics are giving a great deal of attention.
Since inheritances, legacies and donations are not acquired by the joint efforts of the spouses, provision is being made in clause 5 for these not to be taken into account in the calculation of the accrual, except in so far as the spouses may agree otherwise or the testator or donor may stipulate otherwise.
†Mr Speaker, this brings me to the abolition of the marital power. South Africa is one of the few countries where the marital power is still in force. Even in countries with a strong patriarchal family structure such as Italy and Spain, the marital power was abolished. Broadly speaking, the marital power consists of three elements, namely the husband’s power as the head of the family the husband’s power over the person of the wife from which flows the restriction on the wife’s capacity to litigate, and the husband’s power over the property of the wife with the concomitant restriction on wife’s contractual capacity. When reference is made to the marital power which can be excluded by antenuptial contract, the marital power in the narrower sense, namely the husband’s power over the person and property of the wife, is meant, and it is in this sense that the marital power will be abolished in all marriages contracted after the commencement of this legislation except in the case of Black persons whose matrimonial property law forms part of another project of the SA Law Commission. In existing marriages—except the marriages of Black people—the spouses may abolish the marital power by notarial contract.
For the peace of mind of hon members it may be mentioned that the law relating to the husband’s position as head of the family will not be affected by the legislation under discussion. The law relating to domicile or guardianship will also not be affected.
The effect that the abolition of the marital power will have in marriages out of community of property will be that the wife will gain full control over her property while the husband’s control and capacity to dispose of her property will be abolished. In marriages in community of property the position is different because of the existence of the joint estate. Once the marital power is abolished the question immediately arises how the joint estate should be administered. In this regard the Law Commission said:
Chapter III of the Bill generally and clause 14 in particular embody the principle of concurrent administration of the joint estate by the husband and wife. I will now deal very briefly with the principles of a system of concurrent management as contained in the Bill. The fact that the husband and wife have equal powers does not mean that they have to act jointly. That would seriously hamper trade and commerce. Provision is made in the Bill before the House for juristic acts by either the husband or the wife to be valid subject to the requirement that certain acts cannot be performed by one spouse without the consent of the other spouse. In clause 15(2) and (3) the acts requiring mutual consent are set out. These acts are so important that unilateral action could seriously prejudice the joint estate.
*Mr Speaker, the abolition of the marital power implies that both spouses have full capacity to litigate and are therefore competent to institute an action or to have an action instituted against them. Litigation costs money and this money comes from the joint estate. For this reason, litigation can in principle not be allowed without the written consent of both spouses. Clause 17, which deals with the matter, provides, however, that certain legal proceedings can be instituted without mutual consent, namely legal proceedings in respect of the separate property of a spouse, for the recovery of damages, or in respect of a matter relating to the profession, trade or business of a spouse.
This brings me to the third leg of the proposed legislation, namely a number of unrelated aspects which are connected with the area covered by the investigations to which I have referred. These matters are dealt with in chapter IV of the Bill. I shall refer to a few of the clauses. In terms of clause 21, the matrimonial property system which is applicable in a marriage can be changed during the subsistence of the marriage by the intervention of the court. I believe that the present legal position is too inflexible. Circumstances may change to such an extent during the marriage that the matrimonial property system chosen by the spouses may no longer suit their particular needs. I should like to mention for the information of hon members that evidence was given before the Law Commission of cases where spouses divorced and subsequently remarried just in order to change their matrimonial property system. There is even a case recorded in our law reports where a husband obtained his wife’s co-operation for a divorce on this pretext, but afterwards refused to remarry her and married another woman instead.
Donations between spouses during the subsistence of the marriage are prohibited by our common law. In spite of the exceptions which moderate the prohibition to some extent, the position is still unsatisfactory, in my opinion, especially when one bears in mind that the aim of the prohibition is to protect the spouses against their own generosity. As far back as 1949, the Women’s Legal Disabilities Commission found that the prohibition was antiquated.
There is still uncertainty in law as to whether marriages of minors entered into without parental consent are void or voidable. If we accept that the marriage is voidable, there are divergent views as to the patrimonial consequences of such a marriage. The problem does not arise only when a marriage is dissolved, for even during the subsistence of the marriage, the parties as well as third parties do not know which matrimonial property system applies to the marriages. Clauses 24 and 34 deal with this matter.
This brings me to the considerations which prompted the non-acceptance of some of the select committee’s recommendations. As regards the summary abolition of the marital power in existing manages, such a step could have a drastic effect on the vested rights of the husband as far as his administrative power and contractual capacity are concerned. Acceptance of this proposal would also be contrary to sound legal policy in general, because it would mean that the legislature would be interfering, in the sphere of private law, with choices made by parties in the past in the light of the existing possibilities.
As regards the discretionary power of courts to order an equitable distribution of assets at the dissolution of the marriage by death—another recommendation made by the select committee—the proposal would be hard to reconcile with the basic principles of our law, which differ from those in several other legal systems in that the court does not necessarily intervene in the process of the administration of estates. Apart from the inherent uncertainty and unpredictability of such a system, it would considerably complicate the planning of estates, and would in many cases aggravate the financial problems of dependants during the process of administration. The main shortcoming of the proposed solution lies in the fact that, unlike the situation in the case of divorce, where the greater percentage of actions will still be settled out of court, an equitable distribution of assets upon death will not be possible without litigation. This would mean that the granting of such a discretion would be of little value to the man in the street, who needs it most. It does not often happen in practice that one spouse is disinherited by the other. In those cases where it does happen, it may lead to injustice, since the legitimate portion has been abolished in our law, nor does the surviving spouse have any claim against the estate of the deceased spouse for maintenance in terms of our law. This may lead to injustice, and I concede that at once. In the light of the valid objections to the proposal of the select committee, the South African Law Commission, which is at present revising the law of succession, has been requested to incorporate the proposal into that investigation and to consider, among other things, the reintroduction of the legitimate portion or the granting of a right to maintenance, because we recognize the existence of a problem area, although it is a limited one. A working document prepared by the Law Commission will soon be available for general information and comment. The comment received on the previously published Bill will also be made available to the Law Commission.
As regards the introduction of a prohibition on the alienation of the family home without the consent of both spouses in the case of marriages out of community of property, the Bill should not be seen as the final development of the matrimonial property law and of problems in this field. Problems in connection with providing for a family are receiving the continuous attention of the Government.
In addition, a large number of matters were raised by the select committee. The select committee recommended that consideration be given to instructing the Law Commission to investigate the position of Black married women under the present dispensation with a view to the possible application of the recommendations of the Bill to the marriages of Blacks. The select committee also recommended that the Government consider the advisability of instructing the Law Commission to give further attention to the question of pension benefits, especially in the case where the marriage is dissolved by divorce. The investigation of the Law Commission in this regard has reached the stage where a working document will soon be made available for general information and comment, while as far as the question of the Black matrimonial property law is concerned, this is indeed one of the projects of the Law Commission to which top priority is being given.
A further recommendation of the select committee is to the effect that the Government should consider the advisability of having the tax implications of the proposed accrual system investigated with a view to avoiding an additional tax burden. This recommendation has been referred to the Department of Finance, of course.
To summarize: What we are seeking to achieve is an improvement to our matrimonial property law to bring it into line with changed socio-economic conditions and the emancipation of women. The existing matrimonial property law simply cannot meet the needs of the future. In South Africa, the sanctity of marriage as a social institution is highly regarded, and for this reason, our legislation must reflect the principles of modern marriages, namely equality, community of interests and unity.
Mr Speaker, I should like to commence by welcoming the somewhat belated appearance of this Bill which represents the first important advance in the struggle to remove the legal disabilities of married women in South Africa, in over 31 years, that is since the Matrimonial Affairs Act of 1953 was passed. That measure was commonly known as “Bertha’s Bill” in recognition of the long fight which has been mentioned by the hon the Minister put up by the then member for Jeppe to remove the legal disabilities of women.
I might mention that I made my maiden speech in this House on that measure 31 years ago, and my colleague, the hon member for Sandton who is the spokesman for Justice on behalf of the official Opposition, has very generously suggested that I lead off in this debate on that account.
Despite the hon the Minister’s kind reference to me in his Second Reading speech, I must say at once that the fight for women’s rights has not really been my main crusade in Parliament over all these years. I have been very much involved with other matters such as the removal of race discrimination and the whole question of human rights. However, undoubtedly the question of relieving the women of legal disabilities falls within the purview of human rights, and 1 certainly have participated in every Bill which has been forthcoming in this House since 1953, and that was in 1966, 1968, 1976 and so on.
I might add that in 1966 there was a Bill introduced just before the forthcoming general election, and I mentioned, in speaking on that Bill, that I had spoken on this question as my maiden speech in 1953. The then member for Cradock said: “Oh well, now you are making your final speech because the general election will see you out.” It is interesting to note that he has long since gone and here I still am.
You are certainly not referring to the hon member for Cradock.
Yes, but by no means the same one. I do not know whether that is a tribute to my stamina or to his frailness as a male, but as I say, here I am and he has long since gone.
The hon member for Sandton and I sat on the parliamentary select committee which was appointed in June 1982 to consider the report of the Law Commission which had been investigating matrimonial law, the status of married women and the law of succession. The report appeared in February 1982. The select committee was charged with submitting legislation to this House, and it reported in October 1983, at which stage the hon the Minister removed four of the important recommendations and published them in the Government Gazette to submit them again for comment to the general public.
The select committee sat for many hours and had long, long discussions on the Bill. I want to take this opportunity to pay tribute to the chairman of the select committee, the hon member for Mossel Bay, who, I must say, displayed total impartiality throughout our discussions …
For the first time ever.
He sought consensus wherever possible and he exercised considerable patience with some of the more trying members of the select committee, male members of course.
What were they trying?
Practically everything. [Interjections.] I think I should also say a few kind words to the hon the Minister who must by virtue of some of the provisions of this Bill have had to brave the wrath of several male chauvinists who no doubt lurk in his caucus. I want to remind him that one of his predecessors, the then Minister C R Swart, when he introduced the Matrimonial Affairs Bill in 1953, left it to a free vote, and members were able to vote whichever way they liked. In point of fact, there was no dissension at Second Reading. There was one clause which was debated during the Committee Stage, namely the clause that was to abolish the prohibition against donations between spouses. A vote was taken on that and although the select committee to which the Bill had been referred had actually recommended the abolition, the voting was 62 against the repeal of the abolition and 52 in favour of the repeal of the abolition; in other words, it was lost, and the recommendation of the select committee was not carried out and the prohibition against donations continued until the appearance of this Bill. Here I am glad to say that the recommendation of the select committee and of the Law Commission has been accepted, and incorporated in the Bill. I might add that the voting during the Committee Stage in 1953 was almost entirely on party lines, but for four brave NP members who voted with the Opposition, I do not therefore suppose that there is much point in calling for a free vote today as I am sure that it will also be strictly along party lines. I feel sure too that no members of this party would dare to vote against me! [Interjections.] I hear a rumble on my left so maybe there is one member who would.
It is actually your left that is your right.
I wish I could go so far as to say that this Minister will go down in history as the liberator of married women in South Africa, but unfortunately, although this Bill goes a considerable way in improving the status of married women, it does not go all the way. Indeed, not even all the recommendations of the select committee are included in the Bill. I think it is of historic interest to note that two important recommendations made as long ago as 1949 by the Twentyman-Jones Commission from which the 1953 legislation emanated, were not included in the 1953 Bill and will indeed still not be law when this Bill has been passed. Two recommendations made as far back as 1949, that is some 35 years ago, by the Twentyman-Jones Commission will still not be law when this Bill has been passed. These recommendations concern, firstly, the disposal of the family home on which the hon member for Sandton will be speaking, and secondly, the whole question of court intervention to see that an equitable portion is granted to the surviving spouse in a marriage dissolved by death and where he or she has been disinherited.
In a marriage out of community of property.
Obviously, otherwise half of the estate goes to the surviving spouse. Our select committee recommended this as well but these provisions have not been incorporated in the Bill, although I am very glad to hear that the hon the Minister is going to refer this whole matter back to the Law Commission to perhaps consider an amendment to the law of succession. The hon member for Berea will deal further with this matter.
Having said all that, I want to say that there are some very positive aspects to this Bill. Firstly, there is the introduction of the accrual system as the norm in marriages out of community of property. I think this is a welcome innovation to our matrimonial property law. It will apply to all future marriages, as it would be difficult—and we agreed on this in the select committee—to make the system automatically applicable to existing marriages. However, as the hon the Minister pointed out in his Second Reading speech, clause 21 does make provision for couples to opt into the accrual system within a year. If the legal costs regarding the execution of the required notarial contracts are kept low, I believe that that provision will in fact be used to a considerable extent, perhaps not in respect of very long-term marriages, but certainly in respect of marriages contracted within, say, the last few years. I think that the accrual system is particularly good because it recognizes that marriage is a partnership—that is really the best part of it—and that both spouses are entitled to benefit from the growth in each others estates, other than inheritances, legacies, donations or damages other than for patrimonial loss. I believe that the underlying principle is good and will off-set the major disadvantage that accompanies marriages out of community in future, ie one spouse not sharing in the fruits of the marriage although having contributed in very many ways to the building up of the fruits of that marriage.
I think that the introduction of the discretion of the court in awarding an equitable portion of the assets of the estate in the case of divorce to a spouse in an existing marriage will be a remedy much appreciated by women, who are very often left in dire straits after divorce, especially since divorce has been made so much easier in South Africa since 1979. My colleagues will be moving amendments to provide a similar remedy for a disinherited spouse. They will also, I may add, be moving amendments to reinsert the provision contained in the draft Bill of the select committee concerning the disposal of the family home.
The second important and positive improvement to the matrimonial property law in this Bill is the abolition of the marital power and the introduction of concurrent administration in marriages in community of property, and in marriages out of community of property where the marital power has not been excluded. I think it is most regrettable—this, to my mind, is the greatest pity in respect of the Bill as it has emerged—that these important changes will apply to future marriages only, although the select committee, after considerable discussion and argument and not unanimously although by a majority vote, recommended the abolition of the marital power in existing marriages in community of property …
No, that was unanimous.
Yes, the hon member is quite right, it was unanimous eventually, but there were many arguments to start with. As I was saying, the select committee recommended the abolition of marital power in existing marriages in community of property as well as in future marriages. In so doing, the select committee recognized what I think is indisputable logic, namely that if the marital power is not good for future marriages, then it is not good for existing marriages either. Therefore, it should disappear for both. The same argument, of course, applies to joint administration in marriages in community of property and to the lack of contractual capacity of wives subject to the marital power. If it is no good for future marriages, I submit that it is no good for existing marriages and, while we were at it, we should have done away with it altogether, because, as the hon the Minister mentioned, it is archaic and it does not exist in most Western countries. In fact, I think that very few Western countries retain the marital power. I may add that those countries which have done away with it, have all, in introducing it for future marriages, done away with it for existing marriages as well.
I want to say right away that I intend moving an instruction at the conclusion of the Second Reading debate asking the House in the Committee Stage to consider extending the scope of the clause abolishing marital power in future marriages, to have it apply also to existing marriages, as the select committee recommended, ie to change clause 11 of the Bill. There can be no sense in perpetuating an archaic system, designed for olden times, in a modern industrial society. The hon the Minister most eloquently told us of the advances women have made in the socio-economic world and how they contribute to the economy of South Africa. He also indicated the number of women who are to day engaged in highly paid responsible professional and other jobs. Indeed, something like 50% of married women are gainfully employed, many of them in highly responsible jobs in commerce, industry and the professions. A great many run their own businesses and yet—this is the extraordinary thing—once they are married in community of property with the marital power, they have less contractual capacity than their teenage, unmarried daughters. There can really be no logic in a situation such as that. I know there is provision in clause 25(2) of the Bill which allows a couple to apply jointly for the removal of the marital power in existing …
They can agree to do that.
Yes, they can agree to apply for the removal of the marital power, but I cannot see many men agreeing to that. They will not agree to shed their power that way. I am very sorry that a proposal has been omitted which would have allowed an unreasonable spouse to be taken to court in this particular regard.
I want to turn now to what I consider a very unfortunate aspect of the Bill, namely the total omission of Black marriages from the purview of the Bill, which is done through clauses 11 and 25(1).
I want at this stage to express appreciation to Mr Hanegan who was seconded to the select committee by the Law Commission for various meetings. He was extremely helpful in explaining the law as it exists and the import of the law as it will be when it is changed. We did not always agree with the views expressed but that is not important. The fact is that he did an excellent job in enlightening all the members of the select committee in regard to any problems which we had.
The omission of Black marriages from the Bill was recommended by an overwhelming majority of the select committee, but there were three dissenting votes, namely the votes of the hon member for Sandton, the hon member for King William’s Town and myself. The select committee stated that it did not feel competent to go into the complicated question of Black marriages under the Black Administration Act of 1927, the status of customary law wives and the competing financial claims of Black customary law wives and civil law wives. I can understand this because it is a very complicated subject indeed and few of us are really equipped to investigate these complicated subjects. I can think of certain people who would be of great help to the Law Commission if they would only consult them. One of them was mentioned by the hon the Minister in his Second Reading speech, namely Prof June Sinclair of the University of the Witwatersrand. She has taken over the mantle of Prof Hahlo, the great expert in the Law of Man and Wife in South Africa, and is also an expert on the question of Black law in this regard. She is somebody who ought to be consulted in this regard. I myself have used her services as widely as possible in trying to frame arguments in the select committee.
I understand the humility of hon members of the select committee in saying that they did not want to go into this complicated matter, but I must say that I could not help smiling somewhat cynically when the excuse was given and the somewhat sanctimonious attitude was adopted that one could not really interfere with marriage laws affecting Black people without first consulting them. When I think of how the Government interferes in regard to practically every other aspect of the lives of Black people without consulting them, that was not really an argument which could sway me. [Interjections.]
The select committee unanimously accepted an recommendation I made which reads as follows:
That has been done and I understand that there is at present a programme of the Law Commission which is examining customary law marriages and civil law marriages of Blacks with a view, presumably, to making recommendations. This is a matter of great urgency because it arises out of the fact that, unlike White, Coloured and Indian marriages, Black marriages are automatically out of community of property with the marital power retained. That is the norm for Black marriages under the Black Administration Act of 1927. Black women, as usual, get the worst of both worlds. They get it because they are Black and they get it because they are women. Unless they make a declaration with their intended spouse within a month prior to their marriage before a magistrate, commissioner or marriage officer that they wish to be married in community of property, they are married out of community of property but with the marital power retained. If they are married in community of property they have to take the package deal that everybody has had to take in this country until now, namely a marriage in community of property with the marital power. One had no option of getting married in community of property without the marital power.
What I want to know is what is going to happen after this Bill is passed. Are Black women going to have the option of getting married in community of property without the marital power? As I read clauses 11 and 25 the answer is no. That is why I intend moving amendments at the Committee Stage so that Black women can make a declaration and get married in community of property without the marital power, if they wish to. Why should they not be allowed to take advantage in the future as White, Coloured and Indian women are going to be able to do, of getting married in community of property without the marital power?
I must point out that I have learnt quite a lot about Black marriage laws in the course of the past couple of years. A Black couple is not allowed to make a declaration, that is, to get married in community of property, if one or other is already married by customary law to another spouse. They cannot do that. It is illegal. However, there is not legal sanction against it. If a husband contracts a common or civil law marriage, any prior customary unions are automatically dissolved. I wonder how many hon members knew that? I certainly did not know until I made it my business to find out. However, the proprietary rights of a customary law ex-wife, if one can call her that, remains. If therefore the man dies intestate she has a claim against his estate, which in fact takes priority over the civil law wife.
Can you imagine the social consequences arising out of that?
What I am asking for is just something which is going to affect the contractual capacity of the wife. That is all. I am not asking for any other change. I also want a Black woman to be able to get married by ANC, out of community, which she can do now, but I am not sure how this is going to be affected by the legislation which we are passing. It is too expensive at the moment for the average Black couple to enter into an ANC. What does it cost today? Can some of the lawyers in this House tell us? [Interjections.] It costs at least R50, and that is too expensive. What we really want is a standard form which Blacks can use in front of a commissioner or magistrate to state how they wish to get married, out of community of property by ANC including the accrual system with the contractual capacity of the wife unimpaired; in other words, where the marital power is excluded. If that could be done on a standard form and could cost about R5, I am sure a lot of Blacks would make use of it.
The position at the moment is that many respectable Black women earning a good living as professional teachers, nurses etc do not get married at all because they do not want to be under the marital power of their husbands who very often contribute nothing to the marriage. They want to have children and they do have children, but they do not want to marry the man and suffer all the disabilities of a marriage out of community of property where they do not even share the estate at the end and yet have the disability of marital power. Something has to be done urgently about this situation, more so now that the whole question of 99-year leasehold rights has come up. Building societies will not grant Black women loans because they do not know whether a customary law husband is going to appear on the scene and make off with all the benefits. It is therefore a very important thing that we want Black women to be able to share in the new system that is being evolved at the present stage. The Government has stated it is its intention to remove what it calls “unnecessary discrimination”. We, of course, do not admit that there is such a thing as “necessary discrimination.” However, the Government says it wishes to remove unnecessary discrimination, and I think it would be a very good thing if it started now to put Black marriages on the same basis as White and Coloured marriages. By the way, Sir, I think the Law Commission should be charged with looking into Muslim and Hindu marriages as well because their position is even worse. There are polygamous marriages and there, unlike the Black polygamous marriages, the Hindu or Muslim wife who is divorced has no claim at all, or when her husband dies intestate she has no claim. Will the hon the Minister therefore consider asking the Law Commission to broaden its programme and to consider also the case of Hindu and Muslim marriages? I have here a copy of a Law Review which gives a very interesting case of the consequences of marriages for Muslim wives in a polygamous marriage that is not recognized in law but nevertheless carries all the responsibilities of marriage. I will send this over to the hon the Minister and he can have a look at it.
Can a man take two wives?
Oh yes, … [Interjections.] but I do not know that the hon the Minister can manage even one wife! [Interjections.] If he will bring me some recent references we shall see. [Interjections.]
I should like to say a few more things about this Bill. There is another very important recommendation of the Twentyman-Jones Commission way back in 1949, which is conspicuous by its absence from this Bill, and that is the question of guardianship of children. The Twentyman-Jones Commission did not recommend equal guardianship which I thought it had incidentally until I did some more research. It recommended joint guardianship, and that we do have. However, the whole question of equal guardianship was discussed, and the Twentyman-Jones Commission admitted that every woman’s organization that gave evidence before it, 35 years ago, asked for equal guardianship of children. The parliamentary select committee did not discuss this question in any depth at all; it was simply by-passed. Clause 13 of the draft Bill expressly restates the position in law—the hon the Minister mentioned it in his Second Reading speech—of the husband as the head of the family and restates the law regarding domicile and guardianship.
I have to say at once that I did not voice objections to the inclusion of clause 13 on the select committee. I think it would mean amendments to the Matrimonial Affairs Act and also to the divorce laws in order to bring about changes. The hon member for Sandton also did not raise objections in this regard. However, I want to say very clearly and unequivocally that we did that not because we think the existing situation is satisfactory but because of strategic reasons. We had to plan our campaign in the select committee.
I thought you were a straightforward lady. [Interjections.]
I am now being very straightforward by telling the House and the public why we did not raise objections to this clause.
But you said the chairman was impartial.
Well, he was impartial but this had nothing to do with the chairman. It had nothing to do with the impartiality or otherwise of the chairman; it had to do with the minds of the other members of the select committee. [Interjections.] It soon became very clear that we had to concentrate on getting the major reforms through on marital power and the accrual system, and we hoped the right of the discretion of the courts in cases of disinheritance as well as divorce and the family home and all these other things, and we succeeded. We succeeded in all of those things with the select committee. However, I do want to say that I now regret that we did not argue this matter out. What has been the use of it? It appears from the Bill that we have lost out on the removal of the marital power in existing marriages, which the select committee recommended, we have also lost out on the question—it may be temporarily and I hope it is—of the discretionary right of the court to interfere in the case of a disinherited spouse, and we have also lost out on the question of the disposal of the family home. We may just as well therefore have gone hell for leather for the whole lot and have tried to get the guardianship changed from joint guardianship, which it is at present, to equal guardianship which it should be. In this regard I want to tell the hon the Minister that I certainly intend carrying this fight further because this matter has by no means been resolved. There can be no justification for husband and wife not having equal guardianship. At the moment, with joint guardianship, both have to give permission in writing for a minor child to marry, but I think that is as far as it goes. Other than that, it is always the husband’s will that prevails over the education of the child whether secular or religious, and there are various other factors such as the care of the property of the child and so forth. In the event of any dispute, it is always the will of the husband that prevails.
In 1968 the then member for Wynberg, Mrs Cathy Taylor, introduced a private member’s Bill to try to change the situation but she failed. No vote was taken on the matter but it was talked out. She did not get very much support. She was only supported by one or two members in the House including myself. By and large, the rest of the House was opposed to this measure. I feel that the time has come with a view to the recognition there is for the way women have advanced in the world and the role they play in the economy of South Africa—even the Law Commission started off with a nice little accolade in regard to the need to recognize the equality of the sexes and so on—to move towards changing the joint guardianship of children into the equal guardianship of children. As I say, therefore, the fight is not yet over, and I want to tell the hon the Minister that I am sure that women’s organizations and certainly women members of this House—if not myself then others after I have gone—will carry on this fight until it is won. Practically every Western country has recognized equal guardianship of husband and wife, and there is no reason why South Africa should not also march with the times.
Despite the reservations I have mentioned and the shortcomings in the Bill itself, it does, as I said at the outset of my speech, represent a major advance in improving our matrimonial property law. Therefore, the official Opposition will support the Second Reading of this Bill.
Mr Speaker, the hon member for Houghton has understandably dealt with the measure under consideration with the report and recommendations of the Select Committee on Matrimonial Property Law in mind, and I intend doing likewise.
At the outset, I wish to thank the hon member for Houghton for having seen fit to make certain kind and rather flattering remarks about the way in which I chaired the select committee. I wish to thank her for her kind gesture in this regard. However, Sir, I must remind you that the hon member for Houghton is at times inclined to exaggerate.
Don’t be ungracious.
As chairman of the select committee, I sincerely thank all the members of the committee for the goodwill and co-operation that prevailed throughout the proceedings of the committee, a fact which greatly facilitated the task and duties of the chairman. In fact, Sir, nothing could have convinced me more that the proposed consensus-seeking procedures under the new constitutional dispensation can succeed than the experience I gained on the select Committee on Matrimonial Property Law. There we had convincing evidence of the possibility of reaching consensus where there is the right spirit of co-operation and goodwill amongst members.
*I should be neglecting my duty if I did not express profound appreciation and thanks for the dedication, the expertise and the constructive contributions of all the members of the select committee. At the same time, I should also like to thank Mr Hanegan and other officials of the Department of Justice for their patience, guidance and valuable and indispensable assistance to the committee. The committee is also profoundly grateful to Mr Morgan and his staff for the able and helpful way in which they performed the secretarial work.
To a very large extent the Bill before us gives expression and effect to the recommendations of the select committee, as the hon member for Houghton has rightly indicated. As far as this is concerned, therefore, there are no significant differences between us on this side of the House and hon members of the Opposition. It was, of course, the function and the right of the select committee to make recommendations within the limits of its terms of reference. At the same time, it was the prerogative of the Government to consider, evaluate and react to the recommendations of the select committee as it saw fit. Accordingly, I take pleasure in thanking the hon the Minister of Justice and the Government as a whole for the confidence placed in the committee in that so many of the committee’s recommendations were accepted and embodied in the Bill at present under discussion.
However, it is also true that in important respects the Bill departs from the recommendations of the select committee. The hon member of Houghton also referred to this. For example, the committee recommended that a prohibition be imposed on the alienation of the family dwellings of spouses married out of community of property, except with the consent of both spouses. However, this recommendation was not accepted and no provision to this effect was incorporated in the Bill under discussion. This recommendation was motivated by an honest desire on the part of the select committee to protect a spouse and her children against an impulsive, unjudicious and unfair alienation of the family dwelling, to their detriment. However, it became evident that it was impossible to define the concept “family dwelling" satisfactorily, and on further investigation it also became clear that the implementation of the proposed prohibition would give rise to virtually insurmountable problems, indeed, after the conclusion of the proceedings of the select committee I received a letter from a judge in which he pointed out all the problems that would arise from this recommendation due to the deficient definition of the concept “family dwelling”. In the circumstances the non-acceptance of this recommendation, and the deletion of the proposed prohibition from the Bill under discussion is quite acceptable.
The select committee also recommended that the marital power should also be abolished in the case of existing marriages, and a system of concurrent administration apply in the case of marriages within community of property. Once the committee had decided to recommend that the marital power be abolished in future marriages within community of property, the committee took the view that in the interests of certainty in law it would not be desirable to have certain marriages within community of property where the marital power of the man had been abolished, whereas in other marriages within community of property the marital power would still apply. For that reason the committee recommended that the provisions at present embodied in chapters II and III of the Bill would be applicable to all marriages within community of property.
In contrast, clause 25 of the Bill provides that in the case of existing marriages where the marital power applies, the spouses may exclude power by way of a notarial agreement. The implication of this is that the marital power is maintained in existing marriages unless the spouses agree to terminate it. In this respect, therefore, the recommendation of the select committee was not accepted.
A third respect in which the select committee’s recommendation was not accepted is the following: The select committee recommended that the court be granted a discretionary power to direct, on dissolution—whether by divorce or death—of the marriage out of community of property, that a fair share of the estate of one spouse be made over to the other spouse. The purpose of this recommendation was to prevent the unreasonable disinheritance of surviving spouses, or the unreasonable failure to give a divorced spouse a fair share of the assets of the other spouse. Since I am convinced of the committee’s bona fides in respect of the recommendation mentioned, I regret that this recommendation was not found wholly acceptable. It is true that clause 36 of the Bill does provide for the transfer of assets on the dissolution of a marriage out of community of property by divorce. The hon the Minister also indicated that this matter would be referred to the Law Commission for investigation with a view to the necessary amendment of the Succession Act. I trust that this will in due course lead to further appropriate legislation to eliminate and terminate the existing opportunity for unfairness.
Since the publication for comment of the draft Bill and the tabling of the Bill, it has become evident that the measure has been greatly welcomed in all quarters. However, there have also been certain points of criticism or reservations to which I wish to react briefly. The first point of criticism related specifically to the abolition of the marital power. Some people criticized the very idea of the abolition of the marital power. Apparently there is a considerable degree of misunderstanding with regard to the abolition of the marital power in future marriages within community of property, and the option of parties to existing marriages to terminate the marital power as far as their marriages are concerned.
What are you proposing? How do you abolish my wife’s power over me?
The hon the Minister has asked a very pertinent question. There is a saying: “Nature has given women so much power that the law has wisely given them little”. That is evidently what the hon the Minister is referring to. The fact is that it is evident that there is considerable misunderstanding as regards the proposed abolition of the marital power in marriages within community of property. Therefore it is necessary to emphasize the following facts in this regard: Firstly, the marital power of the husband entails, inter alia, the exclusive contractual capacity in respect of the joint estate, the exclusive capacity to perform juristic acts and to litigate, the position as head of the family, the right to determine the place of residence and domicilium of the family and guardianship in respect of the minor children born of the marriage. Clause 13 of the Bill states very clearly that the abolition of the marital power relates only to the contractual capacity or the capacity to perform juristic acts or to litigate, and not to the man’s position as head of the family or the right in respect of domicilium and guardianship. The hon member for Houghton has already said that she regrets that the abolition does not affect these aspects of the marital power as well. Therefore I wish to refer those who are concerned about, or have reservations about, the abolition of the marital power, to the criticism advanced by the hon member for Houghton in this regard. The mere fact that the hon member for Houghton is unhappy that the abolition has not gone far enough is in my opinion clear evidence that it has not been taken too far.
If you want to use it that way, you are welcome.
I want to tell the hon member for Houghton that I think she missed a golden opportunity, because with a select committee with such a positive approach she should have proposed the total abolition of the marital power. Had she done so, she may even have succeeded in getting her proposal accepted.
I doubt it.
I think she missed a golden opportunity, because I am not sure that such a good opportunity will present itself again.
*The fact is also that, among other things, the greater economic involvement of and general emancipation of women to which the hon the Minister referred in his Second Reading speech have resulted in changed social circumstances and ideas. This being so, there is no further justification for retaining the marital power of the husband in terms of which the wife married in community of property is condemned to lifelong minority and which is strongly reminiscent of feudalism and the Middle Ages.
A system of concurrent administration in respect of the joint estate is regarded by some as both unacceptable and unworkable. However, the fact is that the limitation of the husbands marital power and his exclusive contractual capacity in terms thereof has been accepted for a long time. The 1953 legislation is an example of this. Inroads have already been made in principle on the husband’s marital power in respect of certain assets belonging to his wife with whom he is married in community of property. In other words, the principle has already been accepted. Therefore in this Bill we only have the formal confirmation of what does already de facto apply in probably the vast majority of marriages in community of property. After all, there is hardly any difference in principle between a system in terms of which the husband has the sole right to perform all juristic acts in respect of the joint estate except for certain juristic acts which may be performed separately by the spouses, while other specified juristic acts must be performed jointly by the spouses, on the one hand, and on the other, a system in terms of which the spouses must perform certain specified juristic acts jointly, whereas they may perform other specified juristic acts separately.
As far as existing marriages are concerned, the marital power of the husband is not affected in any way unless both spouses agree to terminate the marital power of the husband, and then, of course, only—let me emphasize this once again—in respect of his exclusive contractual capacity and capacity to perform juristic acts and to litigate. Therefore I believe that the reservations and criticism that there may be in respect of the proposed abolition of the marital power are, on the one had, based on misunderstanding and, on the other, are totally unfounded.
Another aspect of the Bill about which there are reservations is the issue of the accrual system. The parties to an antenuptial contract have always been free to apply a system of accrual to their proposed marriage. In terms of the existing legal situation, parties to a marriage are free to incorporate virtually any provision in their antenuptial contract. They can also specify that the accrual system will be applicable to their marriage. I believe that it is chiefly due to ignorance that this option was seldom, if ever, made use of in the past. Chapter I of the Bill does not really, therefore, introduce a new dispensation in respect of matrimonial property. All it does is to bring the accrual system, as an optional alternative, pertinently to the attention of the contracting parties, to the extent that they have to contract out if they do not want it to apply to their marraige. In fact, however, it has always been an option available to parties.
The impression has been and sometimes is created that it is due to ideological reasons, and that it is discriminatory, that the Bill under discussion is not being applied to the marriages of Black people. I am not suggesting for one moment that the hon member for Houghton in her address this afternoon was guilty of creating this impression. However, it is true that the impression is created, if one takes note of what has been said and written about this recently, that it is due to ideological reasons that this Bill does not apply to the marriages of Black persons. The fact is that after due consideration, and with a view to the special character of the social structure of Black communities, the Select Committee recommended that in the case of Black marriages the dispensation as regards matrimonial property should be referred to the Law Commission for urgent consideration by a committee of experts in the field of Black law. The select Committee, in an interim report dated January 1983, emphasized the importance of this, and was certainly not indifferent to marriages of Black persons in this regard. I take it amiss of the hon member for Houghton that she wanted to created the impression that this matter should have been given more in depth attention by the select committee. Surely the hon member knows in what spirit we approached the matter. However, I leave it at that because I do not want to argue with the hon member in this regard. We co-operated too well with one another on the select committee. I trust that the necessary adjustments to the law of matrimonial property relating to the marriages of Black persons will be effected before long.
I therefore take pleasure in supporting the Second Reading of this Bill.
Mr Speaker, we in the Conservative Party will support the principle of this Bill. There are questions concerning the practical operation of certain provisions, and whether they will strengthen or perhaps weaken the marriage, but in this regard we are prepared to give the matter a chance and to study its implementation in practice in order to determine whether it is functioning successfully.
Before I go any further, I should like to refer to the hon member for Houghton. Politically we differ with one another, but I think that as far as this Bill is concerned, she ought to feel a large measure of satisfaction at her share in this connection. She herself correctly remarked that she had not, like Bertha Solomon, concentrated to a great extent on the rights of the woman. She did indeed devote her maiden speech in 1953 to this matter, and I recall that we debated the matter in 1968 during the discussion of a private Bill introduced at the time by Mrs Catherine Taylor. On that occasion we did not agree. Even if one differs politically with the hon member for Houghton, one cannot but have respect for her untiring zeal when she adheres to a specific standpoint and for the way in which she states it. She did the same in regard to this matter, and I think she can be very satisfied with what she has accomplished in this connection.
I think that as a result of her specific milieu and background, her approach to the matrimonial property law is possibly a little more inclined towards English law than towards the Roman-Dutch law approach of our party. I want to warn her, in the words of an English saying, namely: “A husband and wife are one and the husband is that one”. However, I hasten to tell her at once that we do not have such a maxim in Roman-Dutch law. Our maxim is more or less as follows:
I remember that this maxim hanging in the study of Prof Deloor, the housemaster of Voortrekker Hostel at the University of Pretoria, when I was a student.
You learnt clever things at university.
The South African woman, and here I mean women of all population groups, plays an extremely important role in society, whether in her own particular environment, or in society as a whole, and perhaps to a greater or lesser extent in both. She is primarily the wife and mother, and in his capacity the manager of the household in which she looks after the needs of her husband and child with dedication. Let us who are gathered here not omit to mention in particular how demanding the position of the wife of a politician is. Sometimes, besides wife and mother, she is also the only breadwinner, a circumstance which adds to her burden. In our country we in fact have numerous examples of such women who, with almost nothing, equipped their children well for this life. Today to an increasing extent—this was mentioned by all previous hon speakers—we find women venturing into the business world, the professional world and politics, and making a great success of it. In particular, we must not underestimate the role of the so-called housewife in shaping the religious, moral, political and cultural opinions of the people. I cannot omit, since I am talking about these matters and having said all this, to refer to my own party’s own member for Germiston District. As wife, and mother of 11 children, as career woman and afterwards as public political personality, she has greatly distinguished herself, and has also enriched this Place with her presence.
It was my privilege to be a member of the select committee during 1982 and until the time of my resignation last year. At that stage, however, the discussions were more general and informal. I should like to say that I found those discussions penetrating, interesting and serious. On our part I should also like to thank the chairman for the way in which he dealt with the discussions. I think that I am also speaking on behalf of the hon member for Koedoespoort, who succeeded me on the select committee, in thanking the chairman.
We must place it on record here that we were impressed by the Law Commission report in this connection. One can only have great appreciation for it. On my part I should also like to thank the Department of Justice for the memorandum on the Bill which they made available before the time. That, too, is a fine piece of work.
Let us have no doubts about this: This Bill effects drastic changes to the matrimonial property law. It terminates the marital power in regard to the marriage in community of property, which apparently goes as far back as marriage itself and came over into Roman Dutch law out of the Germanic period. In addition the Bill introduces the accrual system into the marriage out of community of property. It effects certain other changes to aspects of principle. For example it repeals the Pepetual Edict of 1540 and the Political Ordinance of 1580 in so far as they were still in force.
It is not difficult for us to support this legislation in principle, particularly because the Roman Dutch law marriage in community of property continues to exist as the common law marriage and the marital power of the husband is in fact only being done away with as regards the patrimonial side of the matter. It does not affect the husband’s position as head of the family or the law concerning domicilium or guardianship. The hon member for Houghton wants the guardianship of the husband to be shared in all respects. I think it was the late Minister Peet Pelser who said in a previous debate on this matter that if two people were riding a horse, there was only one who sit in front and hold the reins. In particular I think that as regards the guardianship over children one should be careful to put the interests of the child first and one should ask whether it is in the interests of the child that a matter such as guardianship should be shared.
Well, it works in England and America and West Germany …
Yes, but it depends on what approach those people have. But I want to tell the hon member what my approach is. In most marriages in South Africa things are working well under the present dispensation. It is usually in those marriages where there is tension in any case that one is then, if one is going to share the guardianship as well, going to have a further dispute, not between the parties as such but over the children and the greater the dispute over a child, the more detrimental it is to that child’s personal development. That is my point of departure; I may be wrong, but I am merely telling the hon member what my feelings are in respect of this matter.
In addition it is easy for us to support this Bill because the accrual system in the marriage out of community of property actually gives substance to the philosophical basis of the marriage in community of property, namely that the parties share in the estate accumulated during the marriage. I think that this provision may possibly lead to far more prospective marriage partners deciding to get married in community of property rather than by way of antenuptual contract.
As regards the doing away of the marital power of the husband, I think that time will tell whether it was a desirable decision or not; whether it will lead to greater or less tension and friction in certain marriages. At this stage we are approaching this question with an open mind, and in the acceptance that the Government of the day will be able to review the position in 10 or 20 years’ time and adapt it accordingly.
The chairman of the SA Law Commission and other members brought about minority reports on certain aspects and pointed out inter alia that everything now contained in this Bill could in fact have been arranged by way of an antenuptial contract. I think we should tell them that they were correct and that we appreciate their standpoint and respect it. However, since there is very strong insistence on change, I feel that we should all agree that we should merely tell prospective marriage partners that if they wish to enter into a contract according to the existing law after the Bill has been passed, they are still at liberty to do so.
By far the most marriages in South Africa are happy, stable and harmonious, with only the normal hitches. However, they are all these things regardless of the form or nature of the marital agreement. I do not think that it is the precise form of a matrimonial agreement that determines the success or otherwise of that marriage. When all is said and done, it is the parties themselves—and sometimes only one of the parties—that determine the success of the marriage. In South Africa the success of our marriages is of greater importance to me than the form and nature of the agreement. I trust that we will concentrate on the road ahead, for the sake of the children born out of these marriages, and who were in any event the main concern of such marriages.
Mr Speaker, at the commencement of his speech the hon member for Soutpansberg expressed some doubt about this measuring reinforcing marriages as an institution. I have no doubt that the measure will indeed do so, and this will be the case because there will be more confidence in marriage as an institution, and also in the marital set-up, because this measure will make that set-up a more equitable one. That is why this ought to create more confidence and reinforce marriage as an institution.
It is also my privilege to thank the hon member for Mossel Bay sincerely for his guidance in the select committee and to congratulate him on the way he directed the proceedings in the committee. A very positive spirit prevailed. It was a very constructive committee and, as the hon member for Houghton said, the chairman was always impartial. It was a privilege for me to have served on the committee.
I also want to thank Mr Henegen very sincerely for his help, and particularly for his patience with certain hon members who, at times, were fairly headstrong.
The hon member for Houghton referred to Black marriages, and I want to agree with her that this is a matter that requires urgent investigation. And that is the reason why this matter was referred by the select committee to the Law Commission at such an early stage. What is the alternative? The alternative would be for the Select Committee to have awaited that report, and that would have meant a delay of two years in regard to this matter. The hon member for Houghton mentioned several examples indicating that this matter could obviously be of a very complex nature.
There can be little doubt about the fact that this legislation reflects far-reaching reforms in the sphere of marital law. It is important, not only because it is so far-reaching, but also because it intimately affects virtually everyone in the community. Every marriage under community of property will be affected by this. It affects every married person, every person who wants to get married or who wants to negotiate an agreement with someone who is married. Every person will therefore have to take due note of the changes being brought about here, how they affect him and how he can use them to improve his situation.
The family is the most important unit in a community and it is therefore traditional for family law to be simple and, for the most part, to be imperative in nature. This means that the majority of the principles of family law are entrenched and that the choice between the various dispensations is relatively limited: Even within a single dispensation the choice is reasonably limited. In the latest book on family law Prof Van Wyk of Stellenbosch also says that family law is confined to general principles because the daily lives of families are guided by customs and moral convictions rather than by legal principles. Because the family is such an important social unit, its structure must be a simple one so that everyone can understand it. It must also be stable and sure, and not frequently subject to change so that there can be certainty and confidence in the system. One should therefore not easily deviate from tried-and-trusted principles. It must also be an equitable system so as to prove acceptable to the community.
From these requirements emanates the further requirement applicable here, and that is that change should not be brought about overhastily and without mature consideration. As far as that is concerned, I am convinced that no criticism can be levelled at the Government about this matter not having been carried through after mature consideration. This is obvious from the explanatory memorandum and also from the hon the Minister’s speech. Over the past six years this matter has urgently been investigated on three occasions, having been referred to the public for representations on two occasions. Many representations were, in fact, received from the public.
The second requirement is that these proposed changes should not deviate drastically from the tried-and-trusted principles and points of departure relating to this matter in family law. As far as this aspect is concerned, I do not think any criticism can be levelled either. It can more likely be said that the important principles are hereby being endorsed and perpetuated. I just want to mention a few examples in this connection.
In the first instance marriage in community of property still remains the marriage that is legally valid. An improvement is merely being brought about by creating the possibility for marital power to be excluded. Marriages out of community of property remain, and will still constitute the main alternative. The situation is merely being improved by the inclusion of the accrual system. The man remains the head of the family. As such he determines where the family should live and the standard of living and domicile of a family. He also remains the children’s guardian. This means that he and the wife must jointly decide about the children but that in the final analysis his wishes are decisive, subject only a court ruling. The most important aspect that should be mentioned here is the fact that due deference is being paid to existing marriages, which are being affected to the least possible extent. This legislation is making it possible for the marital dispensation to be changed either by consensus or by the courts. So by consensus the accrual system can be incorporated and marital power excluded. The court, on the other hand, can divide up the estate if it is feared that one of the spouses is going to be adversely affected. That is a common law right that is being excercised. Where the accrual system is not applicable, and in the case of an existing marriage out of community of property, the court can transfer a reasonable portion of the one estate to the other. That would only be done in cases where it would be unjust not to do so, and where the party being adversely affected has made a direct or indirect contribution to the other party’s extensive estate.
The other test I have applied is that there should be a good reason for these changes and that they should be equitable. As far as that is concerned, the representations were overwhelming. I just want to refer to two aspects. The one is the abolition of marital power and the other the accrual system. Whether the solution that may be presented for the abolition of marital power is the best possible one can possibly be debated, but there can be no doubt about marital power being a complete anachronism. I just want to quote a few examples. There is, for example, that of a woman who has been married for 30 years. She has a great deal of experience of life. Yet she is regarded as a minor for the duration of the marriage, whilst her daughter who is 21 years old, with a great deal less experience of life, experiences no restrictions. That is simply not fair. The married woman has the franchise. She can decide about this country’s future, but has no right to decide about the joint estate or, in certain circumstances, her own estate. That is, in simple terms, something which is absolutely untenable and which could not be allowed to continue. It had to be put right.
The same thing also applies to the economic equitability of a marriage out of community of property. Whilst the husband’s estate may have increased over the years, the wife’s estate has not. The reason for that is quite obviously because of the fact that she has been involved in her husband’s business undertaking or has stayed at home and looked after the children, thereby enabling her husband to build up his estate further. If a divorce then takes place, or death occurs, she very frequently finds herself left with virtually none of the assets. That is not equitable either. That is also being put right by this Bill. On the one hand it is being put right by introducing the accrual system in all future marriages in which this is not specifically excluded and which are out of community of property. In cases of the accrual system is not being applicable, this equitable share can be used. It must be emphasized, however, that the equitable share only applies to presently existing marriages. It does not apply to marriages contracted out of community of property, without the accrual system, after the commencement of this legislation.
There is still one disadvantage remaining, and that is that after death this problem can continue. In such a case a woman, who for years has helped to augment her husband’s estate, can still be adversely affected because this equitable share is not applied upon death. That is a problem that still has to be solved. In saying this, I am not saying that I am going to be in agreement with the amendment to be moved by the hon member for Berea, because this equitable share cannot summarily be applied upon death. There are reasons for that. The first is that it restricts freedom of testation to a large extent, and that one would not easily want to do. It also creates uncertainty about the inheritable estate. It is also done in a way that could give rise to a great deal of inequitability, because after death the other party is no longer there. He cannot defend himself. He cannot say what the real situation was like when those estates came into being. He cannot put his side of the case. There must also be a restriction on this equitable share upon death because it is a very dramatic and farreaching incursion. Simply to make the equitable share, as applicable in the case of a divorce, summarily applicable upon death, would be very dangerous. I welcome the fact that this matter has been referred to the Law Commission.
It was pointed out earlier that this Bill is of direct interest to everyone. A publicity campaign will therefore have to be launched to acquaint everybody with these problems in regard to the decisions they will have to take. I just want to give a few examples. People who are already married, will have to make the following decisions: If marital power applies—this can be in the case of marriages in community of property or marriages out of community of property—the parties can choose. Within a year they can voluntarily, by notarial contract, have that marital power excluded. It will then come into force on the date of registration. If the persons concerned are married out of community of property they can also, by mutual agreement, enter into a notarial contract making the accrual system applicable to their marriage. They can make it applicable, not only from the date on which they enter into the contract, as stated in certain Press reports, but can even make it retrospective in effect to the date on which the marriage took place.
People who are intending to get married in future will have to decide whether they want to be married in community of property or out of community of property, with the accrual system or without it. If they marry in" community of property, they will have to consider the somewhat complicated concurrent system of joint administration that is involved.
One of the most important amendments being introduced by this Bill relates to the fact that the marriage system is being made more flexible and adaptable. To my mind that is one of the most important aspect. Thus both spouses can have recourse to the courts, during their marriage, to have the dispensation changed, and the courts will do so if a good reason for doing so can be advanced, if the creditors have been notified and if no other person is adversely affected by such a step. One spouse may also have recourse to the courts to divide up the joint estate if the applicant is adversely affected or can possibly be adversely affected. One spouse can also have recourse to the courts to divide up the accrual. Both in the division of the accrual and in the division of the joint estate some other marital dispensation can be made applicable.
Together with all these positive aspects, there is nevertheless one further aspects which, as far as I am concerned, is almost a negative one. I want to express my extreme regret about that and today lay a small wreath for the death of the Perpetual Edict of 1540 and the Political Ordinance of 1580. [Interjections.] Those were two Dutch statutes which probably represented the strongest living ties between our law and Dutch law that applied here as customary law. These laws were applicable in this country long after they no longer applied in the Netherlands. It is such a pity they have to disappear. Yet there is some merit in their disappearing. In terms of section 14 of the Political Ordinance a marriage contracted between minors, without permission, was invalid and in terms of section 17 of the Perpetual Edict, if a minor contracted a marriage without permission, no adult could ever obtain any financial benefit from the minor. The implication of this was that the marriage was indeed valid, but that it could be annulled. This gave rise to contradictory decisions about whether the marriage was invalid or could be annulled and whether it was in or out of community of property. These disputes served a good purpose because they kept second-year law students busy studying the matter late into the night, but in reality it could not be said that they were of more than academic significance. They are now being denied this privilege, and I find that to be a great pity. In all fairness, however, this Bill, and particularly clause 15, will again be giving second-year students enough material for many nightmares. With this dual administration there will probably be attached to the simplest marital system in community of property some of the most complex law in our statute law. I think it would be very unfair to give them this problem, whilst still keeping them busy with the Political Ordinance and the Perpetual Edict.
I am saying all this in lighter vein, because with this legislation I think we are again adapting our family law to the demands of the times and making it more equitable, whilst nevertheless retaining the old tried-and-trusted principles. I therefore have pleasure in supporting the Bill.
Mr Speaker, one is often surprised in this House. Following on the hon member Mr Schutte who has a reputation for being an earnest and deep-thinking person, to hear him talk about naked ladies in respect of an important Bill like this was something of a surprise.
To deal with the issue at hand, I would like to join members of other parties in expressing my thanks to the chairman of the select committee of whom it has already been said made the experience an extremely pleasant one. He allowed maximum participation and he sometimes curtailed his own, which I am sure must be an unusual experience for him. That just goes to show the degree of fairness he applied in allowing discussion. I think the most important aid to the committee was the services of Mr Hanegan who really was the epitome of patience and who had a very succinct way of putting over somewhat complicated and remote concepts dealing with comparative studies which have been done by the SA Law Commission. Once again that marvellous institution, the SA Law Commission, served the select committee excellently with a great deal of background work and information.
One gains the impression that what has happened with this legislation over the years is that it has become such a hot number that people have researched it and researched it and that the real courage to take the step that has been taken now, has been lacking. One gains the impression that there has been an attitude of hastening slowly. It probably lends truth to the saying that the weaker sex is really the stronger sex because of the stronger sex’s weakness for the weaker sex. That fear of a move towards starting to shed power or to shed authority over the weaker sex is a tacit admission of the tremendous power that they do have.
Inasmuch as I do not have any legal background the work of the select committee was something of an education for me. Perhaps I am ad idem with the legally trained members on the committee in as much as I do not think that any one of them could be described as an expert on marriage as such, if in fact such people exist at all. Certainly one comes away with the knowledge that one really cannot legislate for the unsuccessful marriage. One cannot bring about legislation which will in fact cope with all the possibilities involved in a marriage when that marriage is likely to go wrong. I do not believe that that is possible. Therefore, one has to choose a system. We have chosen an institutionalized system rather than one in terms of which people can go to the courts for the finalization of the breakdown of their marraiges or in respect of aspects on which decisions are required. I think we have made the right choice in maintaining a very secure base.
Regarding the question of not doing away with the marital power, I should like to lend my support to the points made by the hon member Mr Schutte in this respect. Quite apart from the points he made, it would appear to me that that represents the last holding-on to the symbol of being able to maintain authority in marriage. I would have preferred to have seen us take the plunge in this respect. In fact, we should have gone about it the other way round. Whereas at present people can, if they are in agreement, change the matrimonial system, I would prefer to have seen the marital power done away with and those who wish to keep marital power contracting in. Then one would have the ideal situation where people by agreement introduced marital power and there is no argument about it. Now the reverse situation applies and in the case of vast number of marriages the people concerned are going to feel that they have really been left out of all the benefits of this Bill. I wonder whether the hon the Minister would not consider consoling them by indicating that the position will be very carefully monitored over a specific period with the intention, once again, of reviewing that particular aspect of our matrimonial systems. The legislation in fact allows a period of 12 months within which spouses can change their marital system. So, within a year or two after that one will see the effects of that, one will have an indication of how many couples have taken the opportunity of changing their matrimonial system and one will also have an indication of the extent to which any form of upheaval has taken place. I would, therefore, plead for a monitoring of the effects of this and a very early reviewal to see whether one cannot proceed with the removal of the last vestiges of the old system. I think that that is really what our law adviser, Advocate Henegan, was saying to us, viz that overseas reform of matrimonial property systems had started much earlier and that therefore there was more time to do it in phases while here there is some danger involved into this headlong and trying to catch up by doing everything at once. However, rather than shelve the matter now with the attitude that we have gone this far and can now wait for a further 30 years, I think it would be much appreciated if this could be monitored over a reasonably short period and we could then proceed with the next phase.
This legislation has been thoroughly chewed over by people with a vast background-knowledge of these matters. There is very little I can add in the legal sense, firstly because I do not have enough of that commodity at my disposal and, secondly, because it has all already been said. What I would like to say, however, is that it is very-obvious that the accrual system was available and largely not used. That raises the question why the legal fraternity, who I think deserve a little bit of chipping every now and then, did not make far greater use of a system which would probably have accelerated change in terms of matrimonial property law. Had more people become aware of it and had more refinements been brought in over the years, I am quite sure that some of the bogymen thought to have been lurking in the corners over the years, would have been put out of the way. Because that has been the case until now, a tremendous responsibility will rest on attorneys to make sure that the new Act is thoroughly explained to couples entering into contracts and that they maintain ongoing contact with people so as to be able to inform them about the effects that the different kinds of marriage contracts which can be drawn up can have on their lives. I was certainly not aware that one could draw up any type of contract, including an accrual contract, prior to this legislation.
With these few words, we in these benches will be supporting this legislation. We hope that our suggestion regarding the monitoring and review of this legislation will be followed as speedily as possible and that further improvements will enjoy the hon the Minister’s attention.
Mr Speaker, I want to thank the hon member for King William’s Town for his contribution this afternoon and also for his well-balanced contribution on the select committee. Although there were sometimes vehement arguments, we could listen with satisfaction to his clear reasoning.
I want to thank the chairman of the select committee, the hon member for Mossel Bay, for his wise insight and for his leadership.
At the outset I want to state three basic points of departure which in my opinion cannot be ignored. In the first place, harmony in marriage does not depend on a contract, laws, property or possessions, but on the ethical norm—norm of love—that is the final goal in a marital partnership. As a form of life, secondly the principle of fairness must apply in the marriage and, thirdly the matrimonial property law must meet the requirements of the time.
This Bill is an excellent example of legal reform. It is legal reform that has broken through a wall of rigidity. For various reasons this wall has existed for decades now. It is general knowledge that one of the most difficult choices for prospective marriage partners is to decide whether they should marry in or out of community of property. Statistics also confirm the difficulty of this choice. In 1979, 47% of Whites who married, married by antenuptial contract and 53% married in community of property. Unfortunately both these choices have shortcomings. If one is married in community of property there are shortcomings and if one is married out of community of property there are also shortcomings.
I want to discuss the major shortcomings of a marriage in community of property. In that marriage, except for certain statutory restrictions, the husband may without the consent of the wife dispose of the assets of the joint estate and encumber the estate with debts. In addition, according to the old argument, the wife is subject to the husband’s marital power and is therefore in a more unfavourable position than a minor is in respect of his guardian.
The Bill now provides that in marriages in community of property the spouses have equal powers. This is a tremendous rectification. It is not, as many men think, an infringement of their rights because in a normal marriage the marriage partners consult each other in any case when important decisions have to be taken. This provision is merely a confirmation of what happens in practice.
The majority report of the commission does not foresee serious problems if both parties are given equal contractual capacities and administrative capacities in respect of the joint estate. A special reciprocal power of attorney can after all resolve many of these practical problems.
A great fuss is being made about the remark in the minority report about two captains on one ship, but Prof D J Joubert of the University of Pretoria wrote in a newspaper article that there were many partnerships in the business world where two captains controlled a ship very well.
What is the most important shortcoming of a marriage out of community of property? In this regard the estates of the husband and wife continue to exist as separate estates after the marriage. Consequently the most important shortcoming in this system of a total division of property is that it does not provide for a division between the spouses of the assets which they have accumulated through their joint efforts during their marriage. Surely, this is unfair. It is a major shortcoming in this system. This is also a generally recognized fact. Any reasonable person will sympathize to a great extent with this view. After a divorce the position of the wife is particularly unenviable because she has no legally recognized claim to part of the marriage assets. This is in conflict with the sense of justice of any reasonable person. After a century of rigidity this shortcoming has been eliminated by means of the accrual system. This is a major step forward in the field of matrimonial property law.
I want to refer briefly to the matter of rigidity. This rigidity is actually tragic. If it had not been for this rigidity, these shortcomings could have been prevented. Put another way, if there had not been this rigidity, this legislation would have been unnecessary. The legislation had to break through this rigidity. Why do I say that? It is theoretically possible for prospective marriage partners to make the exact patrimonial arrangements that suit their particular circumstances best in their antenuptial contract. In other words, they can prevent the shortcomings. The general rule under Roman Dutch law and our law is that any provision may be made in an antenuptial contract, provided it is not in conflict with good morals or unlawful. There are therefore a great many possibilities in terms of Roman Dutch law and theoretically also in terms of our existing law.
In 1978 Prof Francis Bosman indicated in an article in the publication Hedendaagse Romeins-Hollandse Reg that ten different forms of contract are used in Holland. At the Cape a diversity of contractual forms also occurred until about a century ago when, largely under the influence of English law, the practice rigidified into the present standard contract. This is in fact ironic in the sense that marriage partners could have prevented all the shortcomings which the Bill is now correcting, by drawing up the correct contract. They had all the freedom in the world to rectify the shortcomings without this legislation. Put another way: If the marriage partners had preferred these shortcomings anyway, they could have drawn up a contract to that effect.
Why this rigidity? I am of the opinion that the legal practitioners, and particularly the notaries, owe us a reply.
That is why I consider this to be an excellent piece of legislation. Here the legislature is taking the lead. After a century of rigidity by practitioners, the legislature is now taking action in the interests of the wronged woman and is breaking through the wall of rigidity.
There is another example of this rigidity. This has to do with existing marriages. According to our South African matrimonial property law, except for the limited circumstances of division of the joint estate, no provision is made for the matrimonial property system applying to a married couple during their marriage to be changed. This position is unnecessarily inflexible. It must be remembered that prospective marriage partners are young when they get married, do not have sufficient experience, are making arrangements for the wedding, have insufficient money and do not see their way clear to incurring the expense of having an antenuptial contract drawn up. Later on, however, their financial circumstances may change radically, but then they are unable to change their matrimonial property system. This legislation now removes this rigidity and inflexibility by the insertion of clause 21(1).
I want to say something in passing. Whether a marriage is in community or out of community of property, where there is a sincere relationship, where there is harmony between the spouses, now or in future, with or without the legislation, absolutely no problems will arise with regard to the matrimonial property law. Then there is after all unity in the marriage. I also want to mention that in the select committee we were never under pressure from the hon member for Houghton or any women’s organization. For that reason I feel free to quote from the Rooi Rose of 7 March 1984:
-In conclusion I want to quote from Proverbs chapter 31, verses 10 to 12:
The heart of her husband doth safely trust in her, so that he shall have no need of spoils.
She will do him good and not evil all the days of her life.
And then, verse 16:
And now a word to the men, verse 31:
Mr Speaker, I should like in a friendly way to differ with the hon member Mr Schutte when he said that he supported the Government’s decision to exclude the recommendation of the select committee that the courts have a jurisdiction and a right to intervene in deceased estates to bring relief to disinherited spouses. The reasons quoted by the hon member Mr Schutte were the reasons which I think he offer on the select committee itself namely that if this right was allowed to the courts, it would create uncertainty in deceased estates, it would cause delays and thirdly, that if one regards the deceased person as the defendant, the defendant is dead and not able to defend his estate. Of course, the deceased person may not be a defendant in that sense at all. In fact, the disinheritance could well be an omission, for instance a lost will. In the case of a lost will a woman who is disinherited could well find herself in a difficult situation.
What about intestate succession … [Interjections.]
Of course, the Minister is correct. I think I can give the hon the Minister a better example because that was rather a bad example. Speaking about uncertainties, the select committee inserted some very thoughtful criteria which a court would take into account. For instance the duration of a marriage, the estate of the deceased, the extent of the estate of the applicant, the interests of other beneficiaries in terms of the deceased’s will, and any other factor which should in the opinion of the court be taken into account. It is a pity that that provision has been excluded because the potential for injustice, which is allowed to remain, is far greater than the evil of bringing about any small delay in the winding up of estates.
I am delighted to speak in this debate and to play some small role in the passing of this exciting piece of legislation. If one glances at the schedule to the Bill one acquires, as was pointed out by the hon member Mr Schutte, an idea of the extent of reform contained in it. Sections of the Perpetual Edict of 1540, of the Political Ordinance proclaimed in the states of Holland on 1 April 1580, and part of an old Natal divorce law of 1883, are with the passage of this Bill finally abolished.
The law of husband and wife throughout the civilized world has always been slow to change. Like marriage itself, the law relating to it should strive to retain elements of permanency and of certainty. More than most laws, the body of law relating to marriage should not be subject to radical change every few years. South Africa has, however, been, I would say, more conservative and more traditionalist than nearly all of its Western counterparts, and it has taken as many long years to recognize the inadequacies and the inherent injustices in the original two-stream system which we inherited from Europe long years ago. Perhaps, however, the caution with which this envisaged reform has been approached may yet pay off in that we who are legislators must strive to enact laws that meet the exigencies of our time and create dispensations that are firm, that find broad acceptability and that do not crumble.
This law turns its back on the past and sets South Africa on a new road, a road which I believe will yet widen and lead to a marital system that is fair to all. During our lifetimes we have lived in a society that can only be described as male chauvinistic in the extreme. This has suited eminently the menfolk of our country who have played the dominant role for so long. It was my old law professor, Prof Hahlo, who once said to us that a good marriage is a partnership, and that the great feature of community of property was that it projected the partnership into the economic sphere. In 1935 Mr Justice De Wet said:
As my old professor wrote, the estate is not as would be the case under a separation of goods the sole property of the husband but rather the joint property of the spouses. The main and overriding disadvantage of our South African system of community, acutely felt under modern conditions, is that the wife while a partner is such a very junior partner in the firm. She is subject to her husband’s marital power and has no voice in the administration of the joint estate. He is not even obliged to render an account to her. Her share in the community may be of substantial value but she cannot realize it in any way until she obtains a divorce or her husband dies. As far as she is concerned, it is true to say with the late Mr Justice Oliver Wendell Holmes that community is a partnership that begins only at its end. Wives everywhere have been subject to the guardianship of their husbands who represent them in court, administer the joint estate, act for them in business matters and control their affairs.
Hahlo tells us that the male spouse’s position as his wife’s master and guardian was justified on three grounds. Firstly, that there must be a head of the family and that both on Biblical authority and by the law of nature the husband as the moral and intellectual superior is cut out for that role. [Interjections.] Indeed, Sir, Biblical authority for this proposition does exist. In this regard I want to quote I Corinthians, 11: 3, 8 and 9:
for man did not come from woman but woman from man;
neither was man created for woman but woman for man.
I think that these are Biblical quotations with which few of us can agree.
The second historical reason given for the husband’s position of mastery in marriage was that on account of the weakness of their sex—in Latin, fragilitas sexus— women require protection. That may have applied in mediaeval times but when one realizes that some of the major nations in the world today are controlled by women, and when one notes that over the past 30 years not a single male Nationalist has had either the courage or the “chutzpah” to challenge the hon member for Houghton in her seat, one begins to appreciate that perhaps that proposition is obsolete.
In accordance with Standing Order No 22 the House adjourned at