House of Assembly: Vol115 - FRIDAY 15 JUNE 1984


The following Bills were read a First Time:

Provincial Powers Amendment Bill. Public Service Bill.
MATRIMONIAL PROPERTY BILL (Committee Stage resumed)

Clause 25:


Mr Chairman, I should like to make representations to the hon the Minister in regard to the exclusion of Blacks in this Bill.

I find it a pity that in spite of the degree of consideration given to the matter during the past few years, finality has not yet been reached in regard to the marriages of Blacks, and more specifically the position of Black women regarding their proprietary rights. It is clear that there is probably no group in this country in regard to which the changes which have occurred during the past few decades have been so fundamentally drastic as those in respect of Black women. It frequently happens that a Black woman, within a single lifetime, moves from the traditional position in which she is treated as an eternal minor in terms of indigenous law, with all kinds of restrictions on her legal and contractual capacity, to the urban areas where she is not only active in the labour sphere, but also in the competitive business world.

Furthermore, it is very clear, considering the increase in the number of Black girls at school and the number of young Black women at universities, that the problems surrounding Black women are going to increase in intensity. In my opinion it is essential that we should take cognizance of these changes and that the law will have to adapt itself to them, otherwise we run the risk of the gap between law and reality becoming ever greater. For example, it is very clear that we can no longer continue with the situation which has applied for many years in Black urban areas that when a husband dies, his widow loses the right to the continued possession of their home, and is at best regarded as a boarder. This is a complete anomaly which simply cannot be allowed to continue. It is also very clear, as the hon member for Houghton indicated, that particularly in view of the acquisition of 99-year leasehold, and so on, fundamental changes will have to be effected to the present statutory provisions in respect of the position of Black women.

When one is talking about marriage one must of course draw a distinction between the traditional customary union between a Black man and a black woman, and a marriage as we usually understand it. In terms of the Black Administration Act a Bantu law marriage is not defined as a marriage, but as a customary union. A marriage is defined solely as a common law marriage, civil or ecclesiastical, as the case may be. The Act therefore provides that a Black male or a Black female may at any time contract a Western civil or ecclesiastical marriage when such a person is not a partner in a customary union. The legal consequences of that marriage differ fundamentally, not only from the old Bantu law marriage, but also, as far as Whites are concerned, from marriages which existed prior to the passing of this* legislation.

In this connection I should like to bring it to the hon the Minister’s attention that I believe that the restrictions inserted in the 1972 legislation that in the Transvaal and Natal a black female who was of age required the consent of her guardian or father before she could contract a valid common law Western marriage, are an archaic institution which really ought to be changed. One would be able to understand that it would be possible to maintain that principle in the tribal areas, if a person may use that word, or homelands, but to make it applicable to urban areas where Black women are subject to all the modern influences—in this case her father or guardian is frequently living miles away in a Black homeland—is completely absurd.

Clause 34 of this Bill provides that a White minor may contract a marriage which is not void, but is in fact voidable. In view of this it seems essential to me that Black women who are of age should at least be placed in the same position. At this stage the position in this regard is not clear. What is very clear is that we are dealing here with a measure which merely causes irritation and which is untenable and indefensible. It imposes unnecessary restrictions on the contractual capacity of Black women.

I want to return to the question of the contracting of a Western marriage. We indicated that when niether the man nor the woman is a partner in a customary union, such a person may contract a Western or common law marriage. It is interesting, as the hon member for Houghton also indicated, that in that case, unlike the position in our case, the legal consequences of a marriage in community of property are excluded and that the marital power of the husband is nevertheless retained. That is where one is confonted with the problem.




Yes. The marital power of the husband may, in fact, be excluded by way of an antenuptial contract within a month prior to the marriage. Then there is also the possibility that the parties may appear before a magistrate, or before a marriage officer, and may indeed bring about a change in legal consequences by declaring that it is their desire that community of property and of profit and loss shall result from their marriage, and thereupon the marriage shall in fact have those consequences.

When community of property and of profit and loss are excluded, the Act provides that the proprietary rights of the two spouses shall not be determined by Black customary law, but by common law. In this connection it is therefore clear that the Law Commission, or whoever it may be, will have to establish clearly whether, for example, it would be possible to make the accrual system principle embodied in this Bill applicable in those cases where community of property and of profit and loss have been excluded.

When a Black man is a partner in a customary union, he may contract a Western marriage, as the hon the Minister knows, but then the customary union is, of course, dissolved. As the hon member for Houghton indicated, however, we have the interesting situation that that wife and her children will not find themselves in a less favourable position regarding their proprietary rights than the woman who contracted a common law marriage. It is therefore quite clear that according to the Act, the surviving wife and her children, as far as the proprietary right position is concerned, have the same rights and claims to the estate of the husband as the common law wife has. One can understand why the provision was inserted, but in the nature of the case it may create certain problems in practice, particularly when the common law husband and his spouse have in fact jointly accumulated a completely new estate. The position is very clear that that common law wife and her children have no greater claim to that estate than the surviving Bantu law wife and her children.

There are a considerable number of problems which could arise in this connection, and I want to make a serious appeal to the hon the Minister and request that serious attention be given to this matter. [Time expired.]


Mr Chairman, I have great appreciation for the case which the hon member Prof Olivier pleaded here. The matrimonial property system in Black marriages is a matter which requires urgent attention, and it was for that reason that the select committee, at an early stage, referred this entire matter to the Law Commission. However, it was very clearly apparent from the hon member’s argument that this is an extremely complicated matter and therefore it would be a grave error at this stage to place these marriages on the same basis as that of White marriages. I think it is precisely for this reason that we require expert advice, and we can then arrive at a decision in the light of that advice.

Since the hon member made an appeal to the hon the Minister today, I want to make an appeal to the hon member. The hon member is a recognized authority in this sphere, and consequently I think he has a duty to assist the Law Commission by making representations to them on how this matter ought to be dealt with. I am now asking him to do so.


Mr Chairman, I thank the hon member Mr Schutte for his kind remarks, and I should like to make my contribution as far as this matter is concerned. The hon the Minister knows that if a Black man contracts a common law marriage, he thereby not only dissolves his original Bantu law marriage, but from the nature of the case he cannot take another wife in a customary union. That is the legal position at the moment. I think the hon the Minister knows, for example, that in respect of the Transkei, attempts are being made by means of legislation to eliminate the marked distinction between common law marriages and Bantu law marriages. How successful and how desirable this is, I shall make no comment on.

I want to associate myself with what the hon member Mr Schutte said here. What I want to ask the hon the Minister is not only that serious attention should be given to this matter but that he should also give serious consideration to appointing a person to the Law Commission who is in fact an expert in this field. There are quite a number of them, for example Prof Sinclair and others, who are experts in the field of Bantu law. I think it is only within the Law Commission itself that the necessary inputs can be made on this extremely important and fundamental matter concerning the Black people.


Mr Chairman, I want to thank the hon member Prof Olivier sincerely for his very valuable contribution. During the discussion of the Justice Vote the hon member in fact expressed himself very strongly in favour of the retention of the indigenous law. The mere fact that he adopted that approach supports this Bill because it provides in clause 25(1) that this system shall not be applicable to Black marriages. This is a wise approach and it has nothing to do with any suggestions that I may have come across in some newspaper or other that an attempt was allegedly being made to prejudice the Black woman or Black marital partners. The hon member is therefore conceding that it is a wise approach. I just want it on record that he agrees with me, and I would be pleased if he would tell me by way of an interjection that he agrees with me.

In connection with the hon member’s representations on the appointment of experts to the Law Commission to deal with this matter, I want to say that I announced during the discussion of my Vote—unfortunately the hon member was not present; I think he had other obligations to attent to—that we had already appointed Prof Joe Church of Unisa and Dr Dlamini of the University of Zululand to the commission as additional members with the special directive to help deal with this project. It was consequently owing to a large measure to this step that I was able at this early stage to obtain first-hand advice as to what approach I ought to adopt in regard to the suggestions made by the hon member for Houghton. Unfortunately I do not think the hon member Prof Olivier was present here when I referred, in my Second Reading speech, to the fact that I had asked Dr Dlamini, the member of the Law Commission to whom this project has been entrusted, what my approach in regard to Black marriages as well as the marital power ought to be. Since the hon member is displaying such a level-headed approach, I wanted to quote for his benefit, as well as for the purposes of the record, the following observations made by Dr Dlamini:

Discussion of the marriage or customary unions of Black persons, especially concerning the marital power may seriously prejudice the South African Law Commission’s investigation. The matter is extremely complex and needs to be considered in depth and in its full context.

I can see that the hon member Prof Olivier also accepts this as a wise approach.

All that remains for me to say now, I think, is that the project has progressed further than merely the initial stages. Already there is a proposed working plan, and the framework for a possible report has already been drawn up. But this will of course have to be done in consultation with the commission members concerned. Then, too, we have just amended the Law Commission Act to make provision for specific committees with a specific status vis-à-vis to the outside world. This is going to enable us—I can give the hon member this assurance—to complete this entire investigation far more rapidly and in a more streamlined way. Thank you very much for the suggestions. I shall make a note of them, and make certain that the hon member’s valuable speech is forwarded to the SA Law Commission.

The hon member also asked me what the present position was in regard to Black marriages as they pertained to the matrimonial property system which we are now introducing. I think the hon member will agree with me at once that the present position is that Black persons may, in the same say as Whites, enter into a antenuptial contract. Even in terms of the present Act, No 38 of 1927, they are able to enter into an antenuptial contract to govern their matrimonial property system.


Except if he was a partner in a customary marriage.


Yes. Now it is true that, just as in the case of the Whites up to now, where the accrual system could expressly have formed part of his marital property system, Black persons are not being excluded from that situation. In other words, the advantage of this system is once again being brought to their attention, and this will very definitely be the position until such time as the position in regard to the law of Black matrimonial property can be clarified to a greater extent. As far as marriages between Blacks are concerned, the legal position in regard to the marital power of the husband remains unchanged until such time as a change is effected, that is to say the husband retains the marital power except where is has been excluded by way of antenuptial contract—this is the view of the SA Law Commission—and the provisions of sections 1 and 2 of Act No 37 of 1953 also remain unchanged in regard to the marriages of Blacks. However, I do not wish to cloud the issue here, except to endorse the point that both the commission and the select committee arrived at this conclusion, and I assume that the basis of their recommendation is that, because the thorough knowledge which is required to develop this complex legal position was not present in regard to the SA Law Commission or in regard to the select committee, a special project had to be initiated, which is what we have done. Thorough attention will therefore be given to the representations of the hon member.

Furthermore I just want to add that I shall similarly refer the speech made by the hon member for Houghton to the SA Law Commission. I would not dare, in view of the new dispensation, ignore the speech by the hon member for Houghton.

While I am on my feet, I move the amendment printed in my name on the Order Paper, as follows:

3. On page 19, from line 3, to omit “one year” and to substitute “two years”.

Mr Chairman, the hon the Minister has given us an explanation why he is not prepared to consider the inclusion of Black women in this law and he rightly says that the select committee asked for a special inquiry, etc. He did say in the Second Reading that he could under the circumstances not understand why I was raising this matter again. The members of the select committee will bear me out that I only agreed to that after a long and hard argument to get Black women included. I failed to do that and therefore agreed to the proposed project by the Law Commission as a very special matter of great urgency. But the hon the Minister has not answered one point that I made yesterday, namely why cannot contractual capacity be given to Black women in the meantime, leaving aside the whole complicated issue of customary law unions as against civil marriages and the relative claims of both? The hon the Minister says that Black marriages are not excluded in that people can apply to change to the accrual system and they can in any event make an ANC and contract out of the 1927 type of marriage. That is true, but he must know that well over 90% of all Black civil marriages are in fact contracted in terms of the 1927 legislation.


Out of community of property with the inclusion of marital power.


Yes, that is the point, so that they lose out on both counts. They are married out of community of property but with the marital power included. Why can they not have the right to apply under clause 25 to change their marital system to one of out of community of property without the marital power? That is my argument. Why can they not have that option such as is given to married couples of other races? That would free the woman immediately from this lack of capacity to litigate, to enter into hire purchase agreements, to sign a 99-year leasehold agreement and so on. This is an urgent matter. Thousands of married women who are the legal tenants of houses and who are the only wage earners in the family would like to take up the Government’s offer of 99-year leasehold, but they have no legal capacity to do so. Why not give them the option of changing their matrimonial status? This has nothing to do with the customary rights, because she would have no claim to any property owned or any money earned by her husband or as she is married out of community of property. This does not affect her husband’s claims and therefore it does not affect any customary law wife. In the meantime that would be a concession and it would not affect in any way the so-called complicated arrangements between customary law unions and civil marriages. I suggest that the hon the Minister give that some thought.


Mr Chairman, marital power to the extent that we change that situation in this Bill relates to the contractual capacity of the wife.


That is right.


It therefore affects the woman’s legal capacity. I have read to the hon member the telex from Dr Dlamini in which he says that a discussion of the marriage or the customary unions of those persons, especially concerning the marital power, could seriously prejudice the investigation. If I have to choose between advice from the hon member and advice from Dr Dlamini, I am sorry to tell her that I prefer the advice from Dr Dlamini.


Why do you not use your own legal knowledge?


What is the use of the Law Commission if, when one does not like its recommendation, you ignore it altogether?


Mr Chairman, I want to say at once that the hon the Minister, as he usually does, should simply approach this matter in a calm and level-headed way, because when we consider the matter of the contractual capacity of Black women, it is not merely their contractual capacity within the framework of their customary unions or marriage which is involved. When all is said and done there are many women who do not operate within that framework in the business world.

The hon the Minister will also recall that when the Select Committee on the Constitution considered legislation in terms of the development of Black communities the problem in connection with the 99-year leasehold cropped up time again. The question arose whether women would have the right to conclude a 99-year leasehold agreement in their own name. Owing to the legal problems which then arose, it was decided that the matter should be referred to the Law Commission for further consideration. I am certain the hon the Minister will still remember that.

I want to associate myself with the hon member for Houghton by saying that as far as this matter is concerned, we cannot allow it to drag on indefinitely. It is essential for attention to be given to this matter as soon as possible.


Mr Chairman, I welcome the level-headed approach of the hon member. I concede at once that this matter cannot be allowed to drag on indefinitely. I have been informed that building societies and other bodies have in the meantime found a solution which will give us more room for manoeuvre as far as time is concerned. I am quite aware of the background against which the hon member is making this contribution. I agree with him that this was what persuaded us to leave the matter at that. The hon member took cognisance of the possible project of the Law Commission because we all admit that we are dealing with a complicated matter here. I welcome the hon member’s approach that this is not a matter which can be allowed to drag on. That is why we took the steps we have recently taken.


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

2. On page 19, after line 6, to add:
  1. (3) Where one of the spouses to a marriage contemplated in subsection (2) refuses to consent to any contract contemplated in that subsection and the other spouse satisfies a court upon application that it is desirable and just that such a contract be concluded, the court may order—
    1. (a) in a case contemplated in subsection (2)(a), that the provisions of Chapters II and III shall apply in respect of their marriage;
    2. (b) in a case contemplated in subsection (2)(b), that the provisions of Chapter II shall apply in respect of their marriage,
and in such a case the registrar shall send a copy of the court’s order to the registrar of deeds concerned, and those provisions shall apply from the date on which that order is registered.

It relates to clause 25(2), which is a very important provision and which provides that in those instances where couples are already married at the time of the implementation of this Bill they will have the right to abolish the marital power of a husband in the case of a marriage in community of property and also in the case of a marriage out of community of property where that marital power was excluded. They will be in a position to give each spouse equal power in the administration of the estate.

What is the position in practice and what will the position be in practice if one looks ahead? There are hundreds and thousands of marriages already concluded, for example in community of property, where the husband has the marital power, not necessarily because at the time of the marriage the couple sat down in order to discuss the legal niceties of their marital regime, but because it so happens that they got married the usual way without foreknowledge of the consequences of the marital regime into which they were entering. I am sure there will now be thousands of married women, once this Act is implemented, who will say to themselves that having been married for x number of years we now realize what it means not to have marital power. A new Act is being implemented which sounds very promising. Section 25 of that Act now enables us to abolish the husband’s marital power. Let us do it. However, in many cases one will find that the husband will not feel enthusiastic about a suggestion made by a wife that he should abolish his marital power, not because of any legal arguments or vested rights but because a mere “no” will enable him to keep the woman in her place, as it were. It merely requires a “no” from the husband to a wife’s request that his marital power should be abolished and that is the end of it. That is how the clause stands at the moment.

I believe that where a spouse—and inevitably in the majority of cases it will be the woman—has a reasonable and a good case for requesting the other spouse, the husband, to abolish the marital power it should not be left to the husband merely to say: “No, let us carry on. You stay as you are.” There should be some mechanism which the wife can use, perhaps to apply a little pressure, and in the last resort to get relief. That is why the amendment suggests that in a case where a spouse has a reasonable case to put forward for the abolition of the marital power, such a spouse should have the right to approach a court for assistance where the refusal of the other spouse is unreasonable, as I believe will happen in future in thousands of cases. Good friends of mine with solid marriages have merely said to their wives: “Forget it! We have been happy for 10 years. Do not come with your funny stories about women having equal rights.” Arguments of this sort are going to be used in hundreds of thousands of cases and they are really not justified.

The argument has been brought up time and again in discussions that, when one introduces such a clause which enables the spouse to go to court, it will really make marriages much more difficult. If a marriage reaches the stage where one of the spouses has to approach a court, the argument goes, then the marriage is finished anyway; then one does not need this provision because the people concerned are going to get divorced anyway. Well, that is not true. It is not true that a provision which enables a spouse to go to court will make the marriage more shaky or will be a threat to the stability of the marriage. In fact, in the Bill there is a precedent for this type of provision. There is a precedent for a spouse to go to court if the other spouse does not want to agree to such a suggestion. I refer to clause 16 to which we have already agreed. Clause 16 provides almost identical relief to a spouse if the other spouse refuses to consent to the transfer of a property or the alienation of any part of the estate. Clause 16 is, in my view, a sensible clause because when it comes to the powers of spouses as set out in clause 15, there will again be many spouses, whether they be wives or husbands, who will unreasonably refuse to consent to a transaction. The same will happen in clause 25 in relation to which one of the spouses, one can predict, will unreasonably just say “No”. The provision which I suggest should be added is not a new fabrication. I believe it was actually contained in the draft Bill which the Minister’s department put forward for publication—I am not sure whether that is correct—but it then did not appear in the version before us.

Even if the amendment only induces the husband to think about the position seriously, one will have achieved a lot. Even if it only achieves what the hon the Minister has in mind, it achieves a lot. If the wife can say: “Please, do not regard this as a joke because there is a provision which enables me to go to court”, the husband will in many cases, I assume, sit back and think about it seriously. Even if the amendment only achieves that purpose, it will have achieved something positive.


Mr Chairman, if the hon member for Durban Central is not enthusiastic about the abolition of the marital power, does he have to convey this attitude to the rest of the men in this country? I am convinced that the majority of the men in this country are far fairer than he tried to imply. Then he should not seriously suggest that a good marriage will not be affected by a court case betwwen the spouses. He should honestly not try to make us believe that this would not influence the marriage.


But what about clause 16?


Yes, but there are good reasons for that. I am coming to that. That also exists at present. If one of the spouses is perhaps detrimentally affected, he or she may under present common law ask for a division of the estate. Then there are very good reasons for that. I want to suggest that the amendment, as moved by the hon member, simply cannot be accepted because it would definitely bring dissension into the marriage. The fact of the matter is that while both spouses decided on a certain system when the marriage was concluded, it will now be possible for the court to compel them to do something against their will. This can only cause strife in a marriage. The issue here is once again respect for existing marriages and for decisions previously taken. The hon member argued that there were no remedies. However, there are two remedies. When there is possible or real detriment, and it can be proved, one of the spouses may on application divide the accrual or the estate. By implication this has the result that the marital power will be excluded. In other words there are remedies and in this regard therefore it is not necessary for this clause to be amended.

I want to welcome the hon the Minister’s amendment extending the period for the exclusion of marital power from one year to two. We would have had to ask for a further extension in any case in less than a year’s time. There is no doubt about that, and therefore I welcome this extension.


Mr Chairman, I want to thank the hon member Mr Schutte for his support. It is logical that people will now sit back and think that the two year period within which an agreement can be reached is long enough. It is possible that people may forget about it. This is also why we found it necessary to display placards in suitable places bringing it to people’s attention that if they should decide to do so, they should do so as soon as possible.

Unfortunately the hon member for Durban Central pinched my amendment to this clause. Originally I added this provision after I had looked at the Bill in general. At that stage I thought that it would be an improvement. However, I made it available to my colleagues on this side of the House, as well as to hon members on the opposite side. It was therefore not a question of my keeping it secret. I wanted to ascertain opinions, and two weeks elapsed after I began to ascertain their opinions. In the process I once again consulted outside organizations, because the clause was not originally brought to the attention of professional organizations and academics. The result of my opinion poll was firstly that this was not in line with the philosophy which runs like a golden thread through this Bill, namely that the State in this case is intervening by creating mechanisms for present and future marriage partners to exercise choices and to arrrange matters resulting from those choices, and also to eliminate doubt. It would, in other words, have been at variance with this philosophy in this case, the philosophy that parties are given a chance to exercise choices voluntarily. A new element would have been added to their exercise of a choice, namely the court. After all, the parties did not involve a court in the first choice they exercised, to contract a marriage in community of property. Why should an additional opportunity be created for them now to settle the matter in court, after having exercised a choice? It would be in conflict with the golden thread which runs through this Bill, namely that parties are being afforded a voluntary choice to employ the mechanisms offered by the Bill. That is the first reason.

The second reason is that in the few cases where the parties are not able to reach an agreement, a spouse, in this case the wife … I just want to say in passing that when the wife has the marital power, no court will ever be able to help the poor husband. [Interjections.] The fact remains that in the case where a wife does in fact find it necessary to go to court, the marriage is truly on the rocks. Then it will be absolutely nothing but a business matter between the parties. That does not mean, however, that the parties cannot go to court in any case to request a matrimonial property system, including the marital power, or to have such a system changed. In fact, I moved an amendment to clause 21 yesterday, which hon members accepted, to place it beyond any doubt that when parties do in fact go to court jointly the marital power will also be considered by the court. That is the meaning of yesterday’s amendment. Consequently that possibility is not being excluded.

There is a third reason as well. It would be very dangerous to accept the hon member for Durban Central’s argument here as a consideration for bringing back this subsection. Sir, in practical terms what it actually amounts to is that we are giving the wife a revolver which she can hold to her husband’s head and say to him that if he does not consent, she will go to court.


That could be dangerous!


Sir, you can imagine for yourself how dangerous it could be. Where a peaceful situation previously prevailed, we are in this way bringing conflict into the marriage and allowing that process to continue.

There were hon members on this side who held specific views on the matter, as they had every right to do. In exactly the same way every party on that side also had every right to take cognizance of the draft Bill which I made available to them and to approach us at that stage. In fact, certain hon members did in fact approach us—including some of the hon members opposite—and as a result of that we put together certain amendments. I think that some of the amendments that have already been moved by this side were the result of the fact that the Bill in question was available to them for inspection in advance.

I therefore regret that we cannot accept the well-intentioned amendment of the hon member for Durban Central. I want to point out again that we are involved in an evolutionary process and that we must allow this process an opportunity to run its full course.


Mr Chairman, I should like to react to a few points. One tries to be practical in moving this type of amendment. That is why I find it strange when the hon member Mr Schutte states, as a fact, that when parties enter into marriage they specifically decide on a particular dispensation. Theoretically that is correct, but as a legal practitioner who has handled numerous divorces, he surely knows that in many of the cases there were problems because one of the parties, normally the wife, was not aware of her rights in the marriage situation, nor of the man’s rights in regard to her. It is no use merely speaking of the theory. Nor is it any use being as theoretical as the hon the Minister and saying that when the question of the man’s marital power comes up, and recourse must possibly be had to the courts, the relative marriage is automatically on the rocks anyway. [Interjections.] The hon the Minister’s example is an extreme case in point. As I said in my initial argument, in my opinion there will be many cases of the husband simply sitting back and saying that he is not even going to consider it and asking why he should do so, whilst he would seriously consider it on merit if provision were made for having recourse to the courts where justice can be done.

†It is not sufficient to argue that this type of amendment should be rejected because it brings the State into the picture. That is not really what is happening. All we are suggesting is that if one of the spouses has a good case, then the court should decide on the merits. The hon the Minister has not dealt with clause 16, while the hon member Mr Schutte has merely said that it applies to different circumstances. If the parties under clause 16 find it necessary to approach a court for an order to consent to the sale of a house, for example, or to any of the other transactions, one can just as well argue that if that becomes necessary, then that marriage is on the rocks. It does not help saying that that has always been the law. In fact such a proposition supports my argument to the extent that provisions like these do not necessarily mean that if they are used that that is the end of the marriage anyway. The hon the Minister has not dealt with clause 16. Why should clause 16 be on the Statute Book while similar provisions have been on the Statute Book without their being identified as the causes for breaking up marriages? I do not accept that proposition as a valid argument for not accepting this amendment.


Mr Chairman, the hon member for Durban Central must take one thing into consideration, and that is that we are not dealing here with an ordinary contract. We are dealing here with a contract uberrima fidei. The main principle applicable here is the preservation of the marriage. If we take that to be our main principle, we must avoid anything which could cause friction or which could lead to a complete break down of the marriage.


What about clause 16?


Clause 16 will be of importance in the case where one of the parties is not present or where it was not possible to obtain the consent of one of the parties—for example he could be on the border. In such a case it will be possible for the court to give consent on his behalf.


He may withhold his consent …


There are very good reasons for that clause, but it is in particular to allow commercial transactions to proceed smoothly. I want to suggest that that clause is not necessarily an indication that we should accept this provision, by means of which we could cause a great deal of strife.


Mr Chairman, one has appreciation for what the hon the Minister said in regard to bringing the courts into this matter. It is obviously the foundation of the argument against the amendment. However, where we made provision for people to apply jointly to the courts during the two-year period, we also made provision in clause 20 that a court may on the application of a spouse, if the court is satisfied that the interest of that spouse in the joint estate is being or will be seriously prejudiced by the conduct or proposed conduct of the other spouse, and that other persons will not be prejudiced thereby, order the immediate division of the joint estate. However, clause 20(2) provides:

A court making an order under subsection (1) may order that the community of property be replaced by another matrimonial property system.

It would appear to me that that is contrary to the argument of the hon the Minister that where one spouse was prejudiced by the action of the other, and forced the court to divide the estate, the marriage was on the rocks. Yet here, in subsection (2), it indicates that the court may order that the community of property be replaced by another matrimonial property system. This is, in fact, to say that they may be successful in the division of the estate and that another matrimonial property system will suit them better. This belies the possibility of that marriage going on the rocks because they are making provision for a better system in the future. This is in regard to a single application by a spouse when there is prejudice.

The point argued by the hon member for Durban Central here relates to the marital power as well in respect of their having contractual and legal rights. What the hon member is asking for would affect very much the exception rather than the rule because the rule is going to be covered by the other provisions in the Bill. However, let us say that a wife is a very successful businesswoman with an older husband who is very conservative. For no reason at all he is just being bloody-minded and refuses to allow any change. There is no real break-up in the marriage because they are devoted to each other. There may also be other reasons such as the interests of the children and their family circumstances, and there is no possibility of a divorce being involved. However her husband’s actions may seriously hamper that businesswoman’s activities in business, and she may in fact be the main breadwinner or contributor to the joint estate. Would that really fall under clause 20 because the court could then be satisfied that the interests of that spouse in the joint estate would be affected by the actions of her husband? Therefore, the interpretation of the meaning of interest in the joint estate could be a very wide one. It would appear to me that one gets so close to this in clause 20 that in dealing with those exceptions the courts are going to rule out every single case other than those with very genuine reasons, and the issue of taking the matter further will overrule its possible effect on the marriage. Where there are a number of options, we have not covered the set of circumstances which, as I say, are very much the exception and which I do not believe will have an adverse effect overall because there are going to be so few applicants. However, there are certainly going to be some circumstances that will not be covered by the Bill and that will be deserving of some form of recourse. What one is really trying to achieve is to get them to apply jointly. This is the pressure to which the hon member for Durban Central referred. A spouse has the right if his or her interests in the joint estate are prejudiced, and the exceptions are going to be those who feel that their rights or interests are not being catered for. However, I feel that there will be so few of these that the question of the marriage being prejudiced is not really at issue here because the Bill itself provides that the court can order another matrimonial system which serves to indicate that it is anticipated that the marriage will continue despite the fact that one spouse has taken unilateral action. Perhaps the hon the Minister would care to reply in this regard.


Mr Chairman, the hon member for King Willaim’s Town is a man with a great deal of common sense, and he has dealt with clause 20 which is at issue. However, I should also like to refer him to clause 8. These two clauses revive the old remedy of “boedelscheiding”. I told the House during my Second Reading speech that the remedy of “boedelscheiding” formed a very old part of our common law system. We have only had about two or three reported cases where “boedelscheiding” has been used as a remedy over the past century. I also said to hon members that as a young practitioner I used it myself, but I don’t know whether the case was reported. Perhaps, as a matter of interest, I might mention that the counsel who assisted me in that particular matter is now a judge on the Bench, Justice Leonora Van den Heever. Nevertheless I can therefore speak from practical experience. That remedy is applied when a marriage is really on the rocks and where there is real prejudice about to be suffered by an aggrieved party. We are reviving this remedy because we realize that there may be situations where people have forgotten about this remedy, where they can approach the court and have a division of their estate pendente lite, pending a situation where the husband has absconded completely. He is nowhere to be found. One has to perhaps sue him by edictal citation. There are many, many possibilities. Then the court may order a division of the estate and give her her proper share, with which she can then continue business or otherwise. In clause 25, however, we seek to deal with the ordinary marriage. The hon member himself has said that there will only be a few people who will actually have to revert to court to have the marital power cancelled. I think the hon member will be the first one to admit that it is bad to legislate only for the exception. That is why I say that I did not abuse but used my privilege to withdraw this provision. Because we would have legislated only for a few we did not regard it as being advisable to proceed with it. What is more, it would have been in line with our philosophy, the philosophy that people should be allowed the opportunity to review their situation and to make their own choice.

*In conclusion I just want to tell the hon member for Durban Central that I think we would be making a mistake if we wanted to argue that in every marriage there would be a husband who, as a result of his refusal, could inhibit his wife. We want to encourage a situation in which the parties consider the matter as adults and arrive at an agreement. Where it is necesary, this will then be applied. Where it could lead to a problem, there are other remedies. We do not wish to cause a conflict where there is no conflict at present. We really do not want to create the idea that this Parliament is placing a pistol in the hands of a wife to hold a happy marriage against her husband’s head because she is under the mistaken impression that the marital power has created an untenable position for her, because that is not true. Who is the greatest spender of the husband’s income? It is the wife. We would not have had such a flourishing economy if the wife did not have the capacity to commit the estate. As someone said to me in passing the other day: As matters stand at present, it seems as though the wife is already officially able to commit approximately 80% of her husband’s income , but unofficially it could easily be 150%.

Amendment 2 negatived (Official Opposition dissenting).

Amendment 3 agreed to.

Clause, as amended, agreed to.

New clause to follow clause 26:


Mr Chairman, I wish to move that a new clause, as set out in the amendment printed in my name on the Order Paper, be inserted after clause 26. I think it is generally conceded that the legislation introduced by the hon the Minister is one of the most important and enlightened pieces of legislation which has come before us in a long time …


Order! Has the hon member moved his amendment?


Sir, I have not moved it yet.


In that case there is nothing before the Committee.


Sir, I now move:

That the following be a new Clause to follow Clause 26 Court may make over an equitable share of one spouse’s estate to an other 27 (1) When a marriage which is not in community of property, whether the marriage was entered into before or after the commencement of this Act, is dissolved by the death of one of the spouses and the deceased validly disposed of his property by will, the court may, on the application of the surviving spouse, order that an equitable share of the estate of the deceased be made over to the surviving spouse
  1. (2) An application referred to in subsection (1) shall be made to the court within four months after the appointment of an executor in respect of the estate of the deceased.
  2. (3) In considering an application in terms of subsection (1) the court shall take into account—
    1. (a) The duration of the marriage;
    2. (b) the extent of the estate of the deceased;
    3. (c) the extent of the estate of the applicant;
    4. (d) the extent of any bequest by the deceased to the applicant;
    5. (e) the extent of the applicant’s share in the accrual if the marriage was subject to the accrual system;
    6. (f) the interests of other beneficiaries in terms of the deceased’s will; and
    7. (g) any other factor which should in the opinion of the court be taken into account.

Order! I regret that I am unable to accept the the new clause as it seeks to introduce a new and important principle not contemplated by the Bill as read a Second time.


Sir, I should like to address you on your ruling. This is a matter which was dealt with by the select committee. The amendment which stands in my name in fact embodies the clause which the select committee recommended relating to marriages out of community of property and the whole question of an inheritance of the surviving spouse. I do not see that it is in conflict with the Bill.


The hon member will agree with me that the main principle of the Bill concerns the matrimonial property law. I refer the hon member to the long title of the Bill which reads inter alia:

Bill to amend the matrimonial property law …

As far as I understand the amendment of the hon member, it has to do with a marriage out of community of property which is dissolved by the death of one of the spouses and where the diseased has disposed of his property by way of a will. In other words, as far as I see it, the amendment introduces a new principle which concerns the law of succession in addition to the matrimonial property law. In that sense I rule that the amendment seeks to introduce a new and further important principle.


Mr Chairman, with respect, surely the whole question of inheritance is directly related to the long title of the Bill, to matrimonial property? It is very vital that when a spouse dies, the rights of the surviving spouse should be protected.


I have given careful consideration to the hon member’s amendment, but for the reason mentioned I cannot accept it.

Clause 28:


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

  1. 1. On page 19, in line 37, to omit the first “section” and to substitute “sections 8 and”.
  2. 2. On page 19, in line 37, to omit “section 21” and to substitute “sections 21 and 25(2)”.

In this part of the Bill we are dealing with the registration of contracts and therefore with the Deeds Registries. I have indicated in an earlier speech that the Bill in many respects directly concerns attorneys, notaries and conveyancers, and from clause 28 to clause 35 the Bill contains provisions in that connection.

The purpose of my amendments is to ensure that the powers that we have agreed to are properly regulated in terms of the powers and functions of the Registrar and the regulations promulgated in respect of those powers. Clause 28 refers to section 3 of the Deeds Registries Act which in turn relates to the duties of the Registrar. Among the duties which he has there is the duty which he has to perform in terms of subsection (1)(k). The clause seeks to amend subsection (1)(k) in order to include orders under clause 20 and contracts contemplated in clause 21. When we talk about orders under clause 20, we should, with respect, also include orders under clause 8. Clause 20 refers to court orders where there is a division of the joint estate in equal shares. We must look at clause 8 as well, because subsection (2) of that clause refers to court orders where the accrual system is replaced by a matrimonial property system.

Amendment 2 refers to the omission of “section 21”. As the hon the Minister knows, clause 21 deals with contracts. A couple can on application to court get authorization to enter into a notarial contract to change the matrimonial property system which applies to their marriage. The duties of the Registrar should also be to comply with the orders in terms of clause 25, and in particular of clause 25(2), where notarial contracts must be entered into and registered in a registry within one year after the said commencement of a notarial contract. Basically we are crossing the t’s and dotting the i’s.


Mr Chairman, I am advised by the law advisers that these amendments will not improve the clause.

As regards the first amendment, the advice given to me is that it is not necessary to refer to clause 8 since that clause itself provides the endorsement in terms of the directive. I hope the hon member will accept this explanation. We tend to over-clarify, and in the process do not enact proper legislation. I hope that he will accept my reason for not accepting his first amendment. The same applies to the second amendment. I am not saying that his amendments are not meaningful, but I just wanted to convey to him the spirit in which we considered them.


Mr Chairman, the hon the Minister advanced a very legal and technical argument, but if that is the advice given to him, I accept it. With the leave of the Committee I would therefore like to withdraw my amendments.

Amendments 1 and 2, with leave, withdrawn.

Clause agreed to.

Clause 29:


Mr Chairman, I move the two amendments standing in my name on the Order Paper, as follows:

  1. 4. On page 21, from line 8, to omit “notwithstanding the provisions of’ and to substitute:
    • excluding agricultural land as defined in
  2. 5. On page 21, in line 10, after “1970” to insert:
    • : Provided that agricultural land so registered shall form part of such joint estate

The proposed new section 17(1) negates the whole purpose of the Subdivision of Agricultural Land Act, which is to control the subdivision and use of agricultural land. As far as agricultural land is concerned, you can only have one person in whose name that land is registered. The whole purpose of the introduction of the Subdivision of Agricultural Land Act was to prevent a large number of people having a undivided share of a piece of ground. I think that the words “excluding agricultural land as defined in” have to be introduced, because otherwise the Act is negated.

In the second instance, the reason why I want to introduce the proviso is that I want to make it absolutely certain that, if the land is registered in the name of one of the spouses, it will be part of the joint estate.


Are you now motivating your second amendment?


Yes. The reason for the first amendment is, I think, quite obvious. The reason for my second amendment, amendment No 5, is that, although it may seem superfluous, I believe that, just as in the case of land or a building within a township, that land or building can be registerd in the names of both the husband and the wife, it should be clearly understood that in the case of agricultural land, although it is registered in the name of one spouse, it forms part of the joint estate of both spouses.


Mr Chairman, there are a number of amendments to this clause, and I should first like to dispose of the amendments which have just been moved. I want to indicate that the first amendment is acceptable, not only as an improvement, but also perhaps in a sense as a necessary part of the clause. That is the amendment relating to the exclusion of agricultural land.

As the hon member himself said, his second amendment could perhaps be regarded as superfluous and as an overstatement. Therefore I am not prepared to accept that amendment.


Mr Chairman, I thank the hon the Minister for accepting my first amendment. I should like to ask him, however, how is he going to make absolutely certain that the other spouse will have his or her portion or share included in the joint estate?


Mr Chairman, the present position is that property is registered in the name of the husband. If, however, the wife’s share is to be registered, it is done in the form of a caveat against the title. That would relate particularly to property she brings into the estate, especially if the marital power is not excluded by the person who has made the donation perhaps prescribing the condition that the marital power is to be excluded and that the donation shall not form part of the joint estate. However, the law also provides that, similarly, when it is registered in the husband’s name and the estate has an interest in it, a caveat can be endorsed against the property.


Mr Chairman, under the circumstances, with the leave of the Committee, I withdraw my amendment No 5.

Amendment 5, with leave, withdrawn.


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

1. On page 21, in line 27, after “Where” to insert “a marriage in”.

In my view the clause will read better and be clearer if my amendment is accepted.


Sir, I am prepared to accept the hon member’s amendment.


Mr Chairman, there are two amendments to this clause as printed in my name on the Order Paper. The purpose of amendment 2 is to clarify the position concerning partnerships.

As hon members know, it has been provided that there will be no in community of property marriages with the exclusion of the marital power, but that it will not apply to marriages entered into before the promulgation of this Act. In terms of section 34bis of the Deeds Registries Act, we were advised by the Registrar of Deeds that it recognizes a partnership as a separate entity, a separate person. When immovable property is obtained by them, it is registered in all their names, including that of the new partnership. Therefore, if any of the partners is married in community of property, his wife’s name also needs to be entered in terms of this clause. The wife’s name with a marriage in community of property will therefore be registered with the husband’s name. This will obviously create tremendous problems as far as partnerships are concerned as the wife’s name would be registered although she is not really a partner.

My amendment has been discussed with the law advisers and they have suggested a slightly better wording, which I would like to move as my amendment instead of the amendment printed in my name on the Order Paper: Consequently I move:

2. On page 21, in line 10, after “1970)” to insert: unless that transfer, cession or registration takes place only in the name of a partnership, and the husband or wife is involved therein only in the capacity of partner in that partnership

This amendment has been cleared with the Registrar of Deeds. It in fact constitutes an improvement on the clause and therefore I am prepared to accept it.


Mr Chairman. I now move amendment 3 to this clause as printed in my name on the Order Paper, as follows:

3. On page 21, after line 59, to insert: (6) A woman married out of community of property shall be assisted by her husband in executing any deed or other document required or permitted to be registered in any deeds registry or required or permitted to be produced in connection with any such deed or document, unless the marital power has been excluded or unless the assistance of the husband is in terms of this Act or on other grounds deemed by the registrar to be unnecessary.

I have examined the memorandum submitted to the select committee by the Registrar of Deeds. I want to read what he says:

The provisions of the Bill for the abolition of the marital power of a husband over the person and property of his wife will not, according to the Bill, be applicable to marriages that are entered into before the Matrimonial Property Act comes into operation, nor will it be applicable to marriages governed by laws of foreign countries. It is therefore imperative that the existing section 17(2) of the Deeds Registries Act which requires a woman married out of community of property to be assisted by her husband in certain circumstances, should be retained.

What I have done is that I have looked very carefully at the existing section 17(2) of the Deeds Registries Act. I amended the provision slightly to bring it into line with the provisions of the Bill before us. I have inserted the following words to bring it into line with the Bill:

… unless the marital power has been excluded or unless the assistance of the husband is in terms of this Act or on other grounds deemed by the registrar to be unnecessary.

This ensures that everything that is done in this particular Bill will be carried out, and that it will cope with this situation.


Mr Chairman, I rise to indicate that I am prepared to accept the amendment. It is definitely an improvement. I thank the hon member for the attention which he has given to this matter.

Amendments 1 to 4 agreed to.

Clause, as amended, agreed to.

Clause 32:


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

1. On page 23, in line 27, to omit “section” and to substitute “sections 8 and”.

This amendment is of a technical nature. We are trying to cover the provisions of sections 8 and 20. Sections 86 and 87 referred to here are those sections of the Deeds Registries Act which relate to registration of antenuptial contracts. In keeping with those registrations of antenuptial contracts I have moved this amendment.


Mr Chairman, in this case my advice is that we should in fact not take the matter any further and that it is clear that in cases where clause 8 is already applicable there is already a registered antenuptial contract. Clause 8(3) makes provision for the endorsement of the antenuptial contract. The provisions of sections 86 and 87 of the Deeds Registries Act, to which reference is being made, need consequently not mutatis mutandis apply in respect of orders issued in terms of clause 8. According to the best advice I have, this is an amendment which aims at illuminating the matter and making it clearer. Consequently, that does not take the matter any further, since it is already quite plain and clear in terms of the present wording of the clause concerned in any case. I wonder whether the hon member would not consider withdrawing his amendment?


In the circumstances I shall, with leave of the Committee, withdraw my amendment.

Amendment 1, with leave, withdrawn.

Clause agreed to.

Clause 34:


Mr Chairman, I move the amendments printed in the name of the hon member for Mossel Bay on the Order Paper, as follows:

  1. 1. On page 25, in line 1, after “minor” to insert:
    • , or a commissioner of child welfare whose consent is by law required for the entering into of the marriage,
  2. 2. On page 25, in line 5, to omit “the parents” and to substitute: “a parent”.
  3. 3. On page 25, in line 7, to omit “parents” and to substitute “parent”.

The effect of these amendments is that the words “commissioner of child welfare” are being added in respect of the proposed section 24(a)(1). There are certain marriages in which the permission of the Commissioner of Child Welfare is necessary, and the effect of this is that such marriages will not be void perse, but they can be dissolved.

As regards subparagraphs (a) and (b), the words “parents” are being altered to “parent”. The effect of this is that it is not necessary for both parents to make an application to have a marriage declared void. One parent can make such an application, and this is fair under the circumstances, since if both parents have to make application it could mean that only one parent could consent and then the other parent cannot declare it void. In effect, this means that the permission of only one parent is needed for a marriage to go through. This would not be in accordance with our present law which requires the permission of both parents


Mr Chairman, I have already indicated that the amendments are acceptable, and I therefore accept them.

Amendments 1 to 3 agreed to.

Clause, as amended, agreed to.

New clause to follow clause 35:


Mr Chairman, I move:

That the following be a new Clause to follow Clause 35. Provisions of Act to apply to Act 16 of 1967. 36. The amendments effected by this Act to the Deeds Registries Act, 1937, shall apply mutatis mutandis to the Mining Titles Registration Act. 1967 (Act No 16 of 1967).

This again is motivated by a memorandum submitted by the Registrar of Deeds, and I will quote what it says on this particular point:

I am not aware why different procedures in regard hereto should apply to the registration of documents in the deeds registry or in the mining titles registration office, but the difference in procedures will obviously be confusing to the legal practitioners responsible for the preparation of documents for registration in this office.

We have just approved a number of amendments which are going to affect the Deeds Registries Act and to enable the Deeds Office to register the changes that are brought about by the Matrimonial Property Bill. Mining titles are also registered under very similar procedures and in the Mining Titles Registration Act the powers and duties of the Registrar are laid down and the regulations under which the Registrar of Mining Titles operate are laid down. Section 16, for example, makes special provision for women. There is a similar provision in the Deeds Registries Act. Section 18 of that Act makes provision for the transfer of assets in joint estates, again relating to women. Section 22 contains a special provision relating to partnerships. We have just had a discussion with regard to the implications of registering partnerships. The wife now has to have her name registered as well. Section 28 provides for the transfer or cession made by endorsement where a couple is married in community of property. Section 29 refers to a marriage that is dissolved by divorce. In section 30 an endorsement changes the status of women. We have all those provisions in the Mining Titles Registration Act and if the women are going to get the benefit of the registration in a deeds office, they should get the benefit of a registration under mining titles as well, and that is the purpose of my amendment.


Mr Chairman, simply to make the amendments this legislation is effecting to the Deeds Registries Act applicable to the registration of mining titles, will really give rise to endless problems with regard to interpretation. These are two different systems of registration, and if one wants those systems of registration to fit in with the system of registration of deeds, the whole system will have to be altered.

Initially the Law Commission recommended that as regards the registration of mining titles, they have to be registered in the name of both the husband and the wife. The Department of Mineral and Energy Affairs, however, opposed this matter very strongly and it was accepted by the select committee. This is a highly technical matter, and I just want to refer to a few representations made by the department in a document submitted to the select committee.

The first quotation I want to read is from paragraph 8 on page 12, which reads as follows:

Indien voortgegaan sou word met die voorgestelde wysiging van artikel 16(3) van Wet 16 van 1967 en artikel 17 van Wet 47 van 1937 vir soverre dit sekere prospekteerkontrakte en mineraalregte betref, sal die bepalings en beginsels wat in die mineraalwette beliggaam is, nie alleen ernstiglik aangetas word nie maar ook onuitvoerbaar gemaak word, en ‘n chaotiese toestand sal ontstaan. Die regte wat ingevolge die mineraalwette toegeken word, is saaklike regte wat eiesoortig is en nie eiendomsreg verleen nie. Afgesien van die prospekteeren mynregte word talle registreerbare regte verleen wat net op die gebruik van die oppervlakte van geproklameerde myngrond vir ‘n verskeidenheid van doeleindes soos besigheid, doeleindes verwant aan mynbou ens betrekking het. Die mynbedryf speel ‘n belangrike rol in ons land se ekonomie, en die gebruike en prosedure ten opsigte van die toekenning en uitreiking van permitte, lisensies, magtigings ens ingevolge die mineraalwette wat lank reeds die toetse van die tyd deurstaan het, en die registrasie daarvan ingevolge Wet 16 van 1967, behoort ten ene male nie versteur te word nie.

Paragraph 9 reads as follows:

Die departement wil beklemtoon dat afgesien van die voorbeelde wat hierbo genoem is, die wetswysigings wat in die konsepwet voorgestel word menige ander onhoudbare botsende wetsituasies teweeg sal bring wat nie net ernstige probleme in verband met die administrasie van die omvangryke mineraalwette sal meebring nie maar ook verdere uitbouing van die land se mynbedryf sal belemmer.

There are a tremendous number of problems which are brought to the fore in this document. However, I want to single out only a few of them.

The first problem is that a person has to qualify for certain mineral rights. That person must meet certain qualifications. In other words, it is a highly personal right which cannot simply be registered in the name of another person automatically. Secondly, certain serious penalties are linked to registrations. There is therefore a risk involved in registering something in a person’s name. It cannot be transferred easily, and I think that it would be unfair if it were simply placed in the wife’s name so that she would automatically be subject to the risk involved.

There are also provisions to the effect that certain prospecting rights can only be granted to one person, and they cannot simply be registered in the wife’s name automatically either.

This is a very technical matter and a matter to which a great deal of attention has been given. I believe that it would be extremely irresponsible if one were simply to make the amendments to the Deeds Registries Act applicable here as well, without having very sound reasons for doing so and without having ironed out the technical problems.


Mr Chairman, as the hon member Mr Schutte has said, this is a technical matter and we have argued it on a technical basis. But what he has said goes just a little bit further than a technical matter. The hon member is rejecting this amendment because he does not think that a mining title should be registered in a wife’s name. In other words, he is not giving her the benefit of the acquisition of an immovable asset or a registerable asset, acquired by her husband, in the deeds registry. That is contrary to the entire spirit and intention of the Matrimonial Property Act. Where a woman has married in community of property her name must be registered on the title deed, it must be on the document that is being registered in the deeds registry. And we are dealing here with the registering of mining titles. I therefore think that the hon member is defeating the whole purpose of the argument in doing so.

Maybe this is not the tidiest way of doing it; maybe one would have to go through the Mining Titles Registration Act section by section to see what should be amended. However, quite frankly I think this is a perfectly sound amendment. It will cover all the difficulties. It will make it easier for the conveyancers who are complying with the amendments already in the Deeds Registration Act to do the same for the Mining Titles Registration Act. I believe that I have a duty to pursue the amendment and I do so.


Mr Chairman, I do not object in principle that justice be done and that it be registered in the wife’s name as well. However, the hon member did not reply to me concerning the problems I mentioned, and that is that, inter alia, the registration of mineral titles means that it is a highly personal right, that that person has to qualify. Does the wife also have to meet those qualifications now? Furthermore, there are penalties linked to that; in other words, she is also at risk in this matter. In addition, according of the legal provisions of those mineral laws, prospecting rights amongst others, they will have to be linked to one person. At least the hon member conceded that this change he is proposing is not a tidy one. With all due respect, I would suggest that that was putting it very mildly. In reality, it is an extremely clumsy way of dealing with the matter and as such it could lead to major problems as regards interpretation.


Mr Chairman, this is a last-ditch stand. With regard to the registration of the contracts that should be registered, I see no reason why, even though a person has to qualify, when it comes to the actual title of the contracts that are to be registered, they should be registered where they have benefit. With regard to any possibility of a criminal charge I am quite certain that although technically the owners of the property may be cited any court that may want to cite a woman married in community of property would not indict her or pursue a charge against her where the evidence clearly shows that she had nothing to do with the alleged offence which the registered owner has been charged with. I do not quite see that as being a problem. Therefore, as I say, I must persist with the amendment.


Mr Chairman, I am at peace in my mind with this situation, namely that if we do not accept the amendment of the hon member for Hillbrow, injustice will not necessarily follow, because there is adequate protection in terms of our system of registration according to the Deeds Registration Act itself to protect couples. I do not think it is now either the time or the place to pursue that argument any further. I think the hon member will concede that immediately. There is already sufficient protection for spouses. Therefore, but for the fact that I have found peace in this respect, I would have said to the hon member that I think an injustice may occur and therefore we have to provide for such an eventuality. However, we have provision and we have protection and, because of that, I do not think we should take this amendment any further. If we took it any further we would open up a labyrinth of provisions in other legislation and obviously in the very provisions which he wishes to make applicable. That will happen if we deal with it summarily as the hon member suggests. What is more, the select committee applied its mind and the hon members for Sandton and Houghton attended to this very situation. I believe that they also considered certain requests from the Department of Mineral and Energy Affairs as the hon member Mr Schutte pointed out. For that very reason I think that this matter has been dealt with sufficiently. I do not say, however, that the hon member has not brought forward fresh arguments which should receive our attention. I think we should leave the matter as it is but I shall take it up further with the Department of Mineral and Energy Affairs. If there is definitely a need for a further amendment, we shall be the first to contact the hon member to say that there is a need for further amending the legislation. I therefore ask the hon member to reconsider the situation.

New clause negatived (Official Opposition dissenting).

Clause 36:


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

1. On page 25, in line 44, after “before” to insert “or after”.

In motivating this amendment, I come back to the same amendment which I moved unsuccessfully when we dealt with the question of household necessaries in clause 23. I tried there to provide for the case where people marry after the promulgation of the Bill but without the accrual system included, so that they will have some protection as far as recourse is concerned when they have paid more than the pro rata share required for household necessaries. That amendment was rejected because the hon the Minister said that he did not think that there would be enough cases to warrant that. I think he is going to be surprised to find that after the Bill is passed there are going to be a lot of people who get married out of community of property and exclude the accrual system. [Interjections.] What worries me is the effect of that provision on this particular clause, which is a very good clause. It provides that on dissolution by divorce, the court may intervene in marriages contracted before the promulgation of the Bill out of community of property—obviously in community of property is not relevant here—and may allocate a fair share of the assets of the estate depending on a lot of provisos, such as the cause of the break-up, the duration of the marriage, and so on. There are various criteria laid down in the clause and we agree as far as they are concerned.

The question which arises is this: What about those wives who, after the promulgation of the Bill, get married out of community of property and without the accrual system, as they can contract to do by ANC excluding the accrual system? They will then be in the same position as wives who are not, the position which the Bill attempts to remedy. Actually they will be in a worse position because of clause 23, because they will not even have the protection previously given them in terms of section 3 of the Matrimonial Affairs Act of 1953. That is to provide a lever for wives who were trying to somehow or other to get something out of the divorce by way of a capital sum or a share of the assets. They could say that they contributed more than they had to and that they are going to claim back every last bean, but they do not have that right anymore. In fact, they could attempt to claim everything contributed to household necessaries because of the uncertainty of the retrospectivity of the section in the Matrimonial Affairs Act.

I hope the hon the Minister will agree to add the words “or after”. It will simply put people married after this Act without the accrual system out of community of property by antenuptial contract in a position also to have the court award them a portion of the assets. We are going to have a lot of very nasty divorce cases unless this protection is given by adding the words “or after”. The original Bill recommended by the select committee did not specify “before” or “after” and therefore applied to all marriages.


Mr Chairman, the provision concerning the equitable share was added to rectify the present deficient system out of community of property, particularly in the case of divorce. Since we are entering a new dispensation, married couples have the choice of availing themselves of marriage out of community of property with accrual or without accrual. They will really have to go a long way in order to have a marriage without accrual. It is a free choice, and once they have exercised that choice they must know that payment with regard to the equitable share is not applicable. I just want to emphasize one matter strongly, viz that the equitable share is a good thing in view of the present shortcomings, but that it is not a provision which is not going to cause problems. Oneoof the problems is the uncertainty it creates amongst couples who are already married, since they do not know what the court is going to do. I should therefore like to defend the right of married couples or people who are going to get married after this system comes into operation to exclude the equitable share from their marriage. Consequently, I do not think we can accept the amendment of the hon member for Houghton.


Mr Chairman, I wonder if the hon member would tell me why he does not extend the same protection to people who choose, as they are entitled to, to get married after this measure is passed with an antenuptial contract that excludes the accrual system. Why does he not want to extend the same protection to them?


For the same reason that they have the choice and that this system is not a system without blemishes. It is one which is very uncertain, and this uncertainty can be excluded by people when they marry and wish to do so.


Mr Chairman, I think the hon member is already aware that we are not going to accept the amendment. As the hon member Mr Schutte indicated, our argument in this regard has a very firm base. [Interjections.] Allow me to explain. If the hon member for Bryanston does not understand, I will excuse him.


I am only trying to help.


Order! I want to tell the hon member for Bryanston that we have got along very well thus far and that peace has prevailed whilst we have been trying to solve the problems pertaining to marriage. He must not upset matters now.


Mr Chairman, he was only trying to protect his rights as a man.


Since the hon member for Yeoville has also made his contribution to this very important debate, I can proceed. What is the philosophy of this Bill? Its philosophy is that we are introducing a system of matrimonial property in which the parties have a choice. As regards existing marriages, we are giving people an opportunity of having the new matrimonial property system, including the accrual system, made applicable to their marriage within a period of two years. If they do not do so, the parties in an existing marriage can still apply jointly to the court to alter the system of matrimonial property and make the accrual system applicable to their marriage. However, we as legislators admit that there could be situations in existing marriages in which the wife cannot persuade the husband to alter the system of matrimonial property because there are financial considerations linked to that for him. That is why it is not being made part of our system of matrimonial property, but it is part of our divorce law that in the unnatural event of a divorce, the court may be of assistance to the married couples who do not have an accrual system. That is the philosophy.

Why are we making a distinction between an existing marriage and a future marriage in this regard? That, too, is very logical. Our philosophy is that we do not wish to prescribe to the parties how they should arrange their domestic affairs, their affairs in respect of proprietary rights. That is why our approach is that future spouses ought to know what choices they have. They can make the accrual system applicable to their marriage from the outset if they wish. If we were to keep another backdoor open, we would be creating the uncertainty in this new system—as the hon member Mr Schutte said—that the court could still intervene in the future. What would the purpose of an accrual system be then? The wife could then say that she does not want the accrual system, but that she is going to take that risk.

We want to normalize matters. That is why we do not want to give future marriages this loophole. People who marry in the future must know what they are letting themselves in for. We are not going to assist them or interfere in their domestic affairs. They must decide for themselves whether or not they are going to make the accrual system applicable. If they change their minds later, they must decide to do so jointly. Another very important characteristic of this system is that it is flexible. The parties must concur, however, and the court cannot interfere. That is why we want to phase out the so-called just discretion of the court. Everyone who was asked to comment said that that was not part of our system of matrimonial property. We admit that it is casuistic. The hon member for Durban Central accused me of acting as a priest. I accept that accusation. However, I say that we acted casuistically in this case because we admit that there is a grey area here in which the legislator must intervene because the consideration which applied in the new system was that there was a tendency to regulate matrimonial property by way of an antenuptial contract in terms of which the wife does not have the benefit of her contribution to the marriage whether it be direct or indirect. We therefore admitted that there was a grey area here and we want to be of assistance in this one grey area. Consequently, we cannot accept the amendment of the hon member for Houghton. I know that there are academics who have a different view of the matter, but I want to assure her that the view I have put forward is by far the most prevalent one.

Amendment 1 negatived (Official Opposition dissenting).

Clause agreed to.

Clause 38:


Mr Chairman, I would like to know from the hon the Minister whether he can give us some indication as to when this Bill will come into force. There are many institutions which intend to publicize the contents of the Bill to inform parties that they have two years from a specific date in which they can approach lawyers to remedy the defects which are provided for in the Bill. The hon the Minister can obviously not give us a specific date, but maybe he has a target date in mind to enable us and others to advise the public of their rights.


Mr Chairman, because we have extended the period within which parties can exercise their option, we naturally have more time to prepare. Otherwise, we would have had to stipulate a date very soon. One should also bear in mind what time of the year Parliament will be in session in case we have to come back to Parliament for some amendment or other. We will probably have to amend this legislation when it becomes law sooner or later, as is the situation with every piece of legislation dealing with important inroads into the common law. I am the first to admit that.

In the case of a one-year period, the target date would have been 1 September. However, in view of its extension to a two-year period, the target date can be somewhat later to enable us to prepare our information material, to co-ordinate with the professions and also to meet the objectives which the hon member has in mind. The ideal situation therefore would be 1 September, but in view of the fact that we now have a bit more time, it may be a few months later.


But will it still be this year?


Yes, this year.

Clause agreed to.

House Resumed:

Bill as amended, reported.

Third Reading


Mr Speaker, I move, subject to Standing Order No 56:

That the Bill be now read a Third Time.

Mr Speaker, it was some years ago, at Columbia Unversity in New York, that Prof Brzezinski, who was then an adviser to President Carter on the security of the state, described his own marriage in a memorial lecture. He said that he had an ideal partnership with his wife. He takes all the important decisions. He decides whether America should declare war on Russia, or whether they will grant aid to the Third World. His wife takes the less important decisions such as where they live, where their children go to school, what clothes they wear, what food they eat and where they go on holiday. That he said was an ideal partnership.

This is the subject-matter of this Bill, namely the relationship between man and wife. We are now in the final stages of the passing of this legislation which has come all the way through the Law Commission, a select committee and now Parliament. I must say to the hon the Minister that to a degree the debate on this Bill during the Committee Stage was a little disappointing to us. I believe we have missed out on opportunities to transform a very good law into a law which I would describe as being brilliant. Truly, if the hon the Minister had accepted and translated into legislation the recommemdations of the select committee, he would have had a better law than we are today going to put into the South African Statute Book. While not wishing to embarrass anyone I am quite certain that there are at least a few hon members on the Government benches who share our view in this.


I am sure there are also hon members on your side who share my view.


But be that as it may, we are pleased that this Bill is becoming a reality, and with it that far-reaching reform in so far as future marriages are concerned is being introduced. We are disappointed that it falls short in certain key areas. What are those areas in which we feel this Bill has fallen short?

Firstly, there is the question of the marital power and the fact that this obsolete and discriminating provision has not been abolished for all but only for those who contract marriages in the future. We say that if this provision is to go for future marriages why should it not go for existing marriages? If the hon the Minister wants to allow—as we do in this Bill—of an option where people during a period of two years can opt to abolish the marital power, we say why not arrange for that option to be exercised in the reverse, as was suggested by the hon member for King William’s Town, and apply it to that small percentage of persons who may wish to retain the marital power, thus enabling those who wish to maintain the marital power to opt to retain it rather than the option to dispense with it.

I do not wish to repeat the old arguments which we have heard both during the Second Reading and during the Committee Stage. However valid they might be in the end result it should be noted that once this law becomes effective not one single married woman presently married in community of property will be affected or will enjoy the benefits of legal emancipation unless she can obtain the consent of her husband to contract into the system of concurrent administration, and then only if the parties can afford the legal fees involved. We say this is a great pity.

Secondly, we believe it is unfortunate that the marital power in Black marriages has not been abolished. As the hon member for Houghton has repeatedly explained Blacks married out of community of property are married thus but with the marital power. Whereas I agree with the select committee and with the hon the Minister that the complete and in-depth reform of Black marriage laws should only be affected after a thorough and expert investigation, I do believe that it takes very little insight to appreciate the injustice of the current system, and that the mere abolition of the marital power for future Black marriages would have brought important relief to at least a sector of the Black community.

Thirdly, we have left unaddressed the spectre of disinheritance of a spouse married out of community property and to whom the accrual system does not apply. Certainly this is not a problem which occurs every day, but when it does occur, in those small number of cases when a spouse is wrongfully, after many years of marriage, disinherited, then that can cause enormous hardship to the spouse so disinherited.

Finally, I am disappointed that the House has not seen fit to grant a form of protection to the family home. We find the argument that a protection cannot be written into the law because the very term “family home” is too difficult to define, a very strange one, to say the least.

But having said that I do not wish to infer for one moment that this is a law which we do not welcome. Of course we welcome it, for even as it stands this Bill represents important reforms in the two-stream marital system in South Africa. The introduction of a system of accrual for marriages out of community of property heralds a much fairer system of marital partnership than has hitherto existed. This new system is not untested; it is not untried. It has worked in Europe, and will in time work in this country.

The abolition of the marital power for future marriages and the acceptance of a system of concurrent administration of the joint estate affords a status to a woman in a marriage much more in keeping with modern times.

Finally, the granting to the Supreme Court of the right upon application to intercede on behalf of a spouse upon divorce and in proper circumstances to award to such spouse a share of the estate of the other party to the marriage, is a provision to be welcomed and is one that will go a long way to ensuring equity upon dissolution of existing marriages concluded out of community of property.

Whenever far-reaching legislative reform is enacted and when new systems are introduced, we all appreciate that fears of legal uncertainty will ensue, an uncertainty which I think sometimes has worried the hon members Mr Schutte far too much. A degree of uncertainty is unavoidable and in this case a few years will have to pass before the courts will have given a firm interpretation of all the provisions of this Bill. However, that fact should not deter the determination of this House in effecting reform that we believe in.

Taken as a whole, this is a Bill which deservedly will draw wide support from people who are presently married and, I believe, from people who will marry in the future. Having said that, we are most happy to support this Bill at its Third Reading.


Mr Speaker, it is a pity that the hon member for Sandton made a few negative sounds here and there in regard to this legislation. It is true that it is not a perfect piece of legislation, and the hon member raised certain points of criticism. However, we could all raise points of criticism from our own point of view or our own philosophy of life, and I regret that he did not welcome this Bill in much stronger terms, particularly because it means a major breakthrough in our matrimonial property law, which was stagnant for many years, while various institutions, such as the SA Law Commission and the universities, gave their attention to possibilities for reform. Today we have a major breakthrough and I think we should emphasize the positive aspects instead of emphasizing those aspects of the legislation we do not like.

This Bill affects every citizen, and consequently, it is a very important piece of legislation we are dealing with here and which is in its final phase of passage. It is going to affect the daily lives of every adult White and Coloured citizen of the RS A, whether they are married in or out of community of property, whether they are already married, or whether they are going to get married after this legislation comes into operation.

Business suspended at 12h45 and resumed at 14hl5.

Afternoon Sitting


Mr Speaker, before business was suspended I was saying that this Bill affects the daily lives of every South African, every adult Coloured and White citizen in the Republic, whether they are married in or out of community of property, or whether they are still going to be married in the future. It is therefore particularly important legislation which is before this House. The tremendous public interest in this legislation over the past two years in particular also attests to this.

I want to emphasize a few points with regard to the effect of this legislation. I want to commence by saying that this legislation is going to alter common law drastically in this field of our law. Whilst a system of community of property will remain the natural consequence of marriage in our country—and I personally am very grateful that that is going to be the case—this legislation effects two important changes to the matrimonial property law, which is going to have far-reaching consequences for married couples.

The first is the abolition of the marital power in respect of future marriages in community of property and the introduction of a totally new concept in our law, viz the concurrent administration of a joint estate of people who are married in community of property.

The second important change is that future marriages out of community of property will now be subject to the accrual system, in terms of the operation of law, for which this Bill makes provision if the parties do not specifically exclude it by way of an antenuptial contract. One also expresses the hope that this legislation will have the desired results which we, as well as many people outside, hope it will have.

The next fact I want to emphasize strongly is that this legislation brings a great deal more flexibility into our matrimonial property law than we have had until now, since it extends the choices of married couples considerably. In this new system they have a considerably larger number of choices which they can exercise in respect of the system they want applicable to their marriage than is the case at present.

Let us first look at future marriages, marriages which are going to be entered into after this legislation comes into operation. Briefly, couples who intend getting married have the following choices in the new system: Firstly, they can choose to get married in community of property in the knowledge that the husband will not have the marital power in that case. Secondly, they can get married out of community of property with the acceptance of the accrual system, as provided in this legislation, and then there is also the third choice that they can get married out of community of property in terms of an antenuptial contract without accepting the accrual system. In a marriage contract of this nature they can therefore set out in the antenuptial contract the system which is best going to suit their particular marriage.

People who are already married also have a very wide choice. Firstly, they can maintain the status quo of their present marriage. If at present they are married in community of property where the husband has the marital power, they can keep that situation as it is. If they are married out of community of property in terms of a normal antenuptial contract, they can also keep that situation as it is and continue as before. However, they could also decide to alter their present system of marriage, and they have a very wide choice in that regard. Married couples can then exercise certain choices, subject to certain provisions which are set out in the legislation. They can alter their present marriage in community of property to a marriage out of community of property with the acceptance of the accrual system. Secondly, they can alter their marriage in community of property by the husband relinquishing his marital power, and the marriage in community of property then continues. They can alter their present marriage out of community of property to one which makes for the accrual system. They can alter their present marriage out of community of property, in which the husband retained the marital power in terms of the antenuptial contract, to continue with the situation under that contract, but with the husband relinquishing his marital power. They can also alter their present marriage out of community of property to one in community of property. The flexibility this legislation is going to bring about, the considerable extension of the possible choices which spouses will have in future is something which is to be strongly welcomed and I hope many married couples will avail themselves of this. In fact, I expect that particularly in these first two years there will be considerable work for our attorneys and notaries with regard to this matter.


Hear, hear!


I hear my hon colleagues in that profession shouting “Hear, hear”.

The next matter to which I want to refer is how this legislation is going to affect the position of the woman. The woman who is going to get married out of community of property in the future has the right to accrual in her husband’s separate estate. The contrary is also true, of course—the ladies must bear this in mind—viz that at the same time the husband has the right to accrual in her separate estate. I feel that the biggest problem experienced with marriages out of community of property in the past has been solved with this legislation. It was clear from the large number of representations the select committee received from women married out of community of property that one problem area had to be rectified, viz that the advantage of a marriage in community of property had to be made applicable in some way to marriages out of community of property. We are making that possible now with this legislation.

A general complaint was that one could have the situation—I think the hon member for Sandton also referred to this somewhat exceptional example—that once this law comes into operation, if the accrual system is applicable to such a marriage, the husband will no longer be able to leave his wife—as he may want to do at present—after having lived with her for a lifetime, for a mistress, and disinherit her completely in his will and leave his completely separate estate to his mistress. That can no longer happen with the accrual system.

Secondly, we must look at the position of women who are married in community of property at present, or who are going to get married in community of property in the new system, and how this legislation will affect them. One must say at the outset that such a woman will be given full contractual capacity and legal capacity under the new law. She will therefore no longer be regarded legally as a minor under the permanent guardianship of her husband. Of course, her powers will always be subject to the provisions of clause 15 of the Bill, and she will need the permission of her husband for certain acts.

Let us now look at how the Bill is going to affect the man. In the new system the estate of the man who is or will be married out of community of property with the acceptance of the accrual system will be subject to the claims of his wife in terms of the accrual system. In terms of this legislation, however, he is being given an additional right and that is that in turn, he can lay claim to the accrual in his wife’s separate estate.

I want to give the men in our country who are going to marry a wealthy woman a piece of advice. I think it will be necessary for him not only to look at the interests of his own separate estate, but he should also pay attention to furthering the interests of his wife’s separate estate, since for every rand by which his wife’s estate increases in value, he can claim 50 cents. [Interjections.] I hear that my hon colleagues are now giving the hon member for Ladybrand a great deal of advice. I see that he is listening attentively to the provisions affecting his rights and privileges in the new system.

Let us look at the position of men who are going to get married in community of property in the new system. He will lose his absolute control over the joint estate. He will also find that the provisions of clause 15 which place restrictions on his contractual capacity in respect of the joint estate are to come into operation. He will have to give up his former, largely unrestricted powers and will need the permission of his wife for certain acts before he can act or perform juristic acts, and in certain cases, he will even need the written consent of his wife.

It is not necessary to emphasize that there is going to be a period of considerable adjustment for the men in our country in this field. The only comfort one can give them, is this: Chaps, go into this system with your eyes open if you are going to get married in community of property. I am not discouraging them from getting married in community of property by saying this. I have always been of the opinion—and while I was still practising, I always advised my clients accordingly, particularly in view of the interests of the wife—that it is better to get married in community of property.

I only hope that in this regard the legislation is not going to lead to friction and quarrels of a new kind in our homes so as to push up our divorce rate, which is already very high, even further. Unfortunately it is true—one must face facts—that this legislation could potentially—I emphasize “potentially”—create new points of friction between spouses.

I now want to look at what the effect of the Bill will be in so far as it affects the legal profession, particularly our attorneys and notaries. I think our notaries and attorneys have a very important duty—I am sure that they will do their duty, as I know them—to familiarize themselves thoroughly with the provisions of this Bill and its implications, since only then will they be able to give their clients informed legal advice concerning the various choices when such clients come to them for advice before getting married. It will also be necessary for them to be completely familiar with the Bill so as to inform their clients and give them legal advice about the contents of their wills, and about estate planning in general. In view of that, I should like to raise one matter about which I have always felt very strongly in legal practice, viz that proper estate planning does not begin after marriage, but before marriage. That is where the attorney and the notary must begin with the estate planning of the prospective married couple with whom they are dealing.


What sound advice do you have for a common-law wife or common-law husband as regards this matter?


I take it amiss of the hon member Dr Vilonel for trying to get free legal advice from me here in the House. He is most welcome to make an appointment with me and I shall give him advice about this with pleasure—at a fee, of course.

As regards the new duties and responsibilities of notaries in terms of this legislation, I am pleased to hear from the hon the Minister that the various law societies are already engaged in preparing their members properly for the new system.

That brings me to another matter that is going to arise out of this Bill, viz the information function of the Department of Justice. In this regard, too, I am pleased to have been told by the hon the Minister that the department is already giving this their attention. I should like to suggest something. Because it is such an important matter, I think it is desirable that the department should get professional marketing people to draw up the placards of which he spoke, as well as the information documents so that information can be conveyed to prospective married couples in the best possible way. Furthermore, since we have undergone an almost radical renewal process in respect of our matrimonial property law and we are going to enter new fields, as well as bringing new legal principles into our matrimonial property law, it will be necessary for the department to keep an eye on the effect of this measure in practice. As the hon the Minister himself intimated, we shall have to give continuous attention to amendments to this legislation when problem areas arise.

Today is a very historic occasion. In the schedule we read about The Perpetual Edict of Charles V of 4 October 1540 and that it is now being abolished. The same applies to the Political Ordinance of 1 April 1580. It is with a degree of nostalgia, if as a former law student one thinks about it, that from 1985 law students will know or hear nothing about these two legal provisions. It will no longer be a threat to them. The only thing they will have to master properly in their studies on family law is the legislation we are piloting through Parliament today. Speaking about students, I just want to say that other legal colleagues of mine and I have a degree of sympathy with prospective law students. The 1953 Act was bad enough, but I really do have sympathy with them if they are going to try to master this legislation, since it remains a complicated piece of legislation.

In conclusion I want to express the hope that the law reform this Bill is bringing about will mean that we will have happier marriages in our country with fewer problem areas than in the past. I hope the attention—public and otherwise—this whole process which we are concluding today has had will bring home a greater degree of awareness among present and future married couples of what an ideal marriage ought to be. After all, a marriage is an association sui generis, with the husband as the head. Just think of the beautiful words of our marriage service. It is not a business transaction between partners. I have always objected when reference is made to a partner in marriage. One does not have a partner in marriage, but an associate in marriage.

This legislation is giving wives many more powers, and despite the statements made in the past that a marriage in community of property in which the husband has the marital power placed the wife in an inferior position, I do not think this is the case from the point of view of the Scriptures, since the Bible teaches us that a woman is more precious than rubies. I shall resume my seat with the following words: May this legislation we are piloting through Parliament today increase the worth of our women in this country.


Mr Speaker, this House has now had the opportunity to listen to two hon members both of whom have given a survey of the Bill before us and of its effect in the future. On the one hand, the hon member for Sandton made an effort—as far as I could infer from what he said—to put forward what he regarded as deficiencies in the Bill, rather than the benefits embodied in the Bill. I found it somewhat regrettable that the hon member concentrated only on the deficiencies, thereby confining himself, as it were, to criticism of the Bill before us. In contrast the hon member for Ermelo gave us a very wide-ranging and, I believe, a very positive survey of the contents of the Bill and of its effect.


Yes, but after all, he belongs to a positive party.


If the hon member for Welkom would only listen instead of speaking unnecessarily, he might also learn something. I want to give the hon member for Ermelo credit for having given us a wide-ranging survey of the contents of the Bill and for having put special emphasis on the benefits embodied in the Bill. The fact of the matter is that this Bill is an intervention into existing law and practice, and in many respects brings about a change in the law, a change which will have its effect in practice as well. The aim of this Bill is inter alia to give the wife certain powers in marriage which in our opinion the wife did not have in the dispensation that we are now leaving behind. I believe that this process represents a major step in the right direction. This will not satisfy the hon member for Houghton. I do not know what more the hon member wants, or what would really satisfy her. The fact of the matter is that she will never be satisfied. However, I believe that the majority of women married in or out of community of property will perceive the value of the benefit they are acquiring by virtue of this new Bill. This new Bill effects drastic changes such as the abolition of the marital power; the accrual system, with everything that that entails, as the hon member for Ermelo expounded it—I do not wish to repeat it now—the concurrent administration by husband and wife married in community of property; and all the other new benefits embodied in this Bill. Here I want to agree with the hon member for Ermelo. Moreover, this is where the difference lies between my standpoint and that of the hon member for Ermelo, on the one hand, and that of the hon member for Sandton on the other on the subject of marriage. I have increasingly been forming the conclusion that to the hon member for Sandton, marriage is a partnership relationship in which husband and wife have a business relationship with one another in which it is necesary to guard against one being benefitted at the other’s expense, but in terms of which both derive equal profit from the partnership. I am convinced that the hon member for Ermelo perceived the matter very clearly and rectified it. I want to emphasize that to me, marriage is also a “genootskap” (association). It is for that very reason that the two parties to the marriage are referred to as “eggenote” (spouses). It is a ”genoot” in the “eg”, in marriage.


It is also a “geduldskap” (“an association requiring patience”).


Is it not people in “nood” (“distress”)?


Not one of those two points of view is applicable in this instance. They are two “genote in die eg”, and this is how it should be seen, because scriptually this is correct. I am concerned that when there is too much harping on the emancipation of women this fact will be overlooked to such an extent that eventually marriage may be harmed. In the dispensation created by this Bill the situation will arise that the husband will have to forfeit certain things and the wife will gain certain things. However, I am convinced that in an ordinary and sound marriage, however the husband and wife in question may have been married—whether in or out of community of property—there will, in any event, be between them the kind of association that will entail their contstantly consulting and agreeing with one another on what should and should not be done. I wish to express the confidence that the amendments now being effected and the powers that are being given to the wife will not make inroads on the healthy marital relationship that normally exists between a husband and wife. In the majority of marriages in community of property the relationship is so sound that the husband’s only task is to remind his wife that the money in the bank could run out. That is the only warning that a man married in community of property has to give his wife from time to time. She does all the other things. She buys and pays, and the man is content with that.

I want to express the confidence that this Bill will create a dispensation in which both partners to the marriage, whether married in or out of community of property, will be happy and content and in which it is going to be found, when the Bill is given the chance to work in practice, that it is sound legislation and that it will not be necessary to effect many amendments. With these words I wish to support the Third Reading of this Bill on behalf of this side of the House.


Mr Speaker, the hon member for Koedoespoort made certain remarks about the emancipation of women and about Biblical concept of marriage. I shall come back to that in due course. It was a pleasure to listen to him. We had the privilege of sitting with him on the select committee. I may say that it was a pleasure to sit with all the other hon members on that select committee.

Since we have now come to the Third Reading of the Bill, this is in a certain sense an historic moment in the development of the South African law of matrimonial property. It is also a moment in which justice is done to the place and contribution of women in South African society. The fact of the matter is that the greater economic involvement and general emancipation of women over the past few years has led to certain changed social circumstances and points of view. These changed circumstances also affect the relationship between husband and wife in marriage, and therefore it is essential that the law of matrimonial property be changed to adapt to these changed circumstances. Therefore it was also necessary that in an effort to achieve greater economic and juridical equality of spouses, one of the most important changes that had to be effected was the abolition of the marital power of the husband in certain circumstances. The marital power was also the heritage of the majority of European countries. South Africa is today one of the few countries where it still applies. In virtually all other countries where it applied it has been abolished, for example in France in 1938, in West Germany in 1953, the Netherlands in 1956, Belgium in 1958, Brazil in 1962, Portugal in 1966 and Quebec in 1970. Even in Latin countries, with their strongly patriarchal family structure, the marital power no longer exists. Italy abolished it in 1975, and Spain in 1978.

It is asked whether this legislation will not undermine our patriarchal system. In order to reply to this it is necessary to define the word “patriarchal”. According to Webster, “patriarchy” means:

Social organization marked by the supremacy of the father in the clan or family, the legal dependence of wives or children, and the reckoning of descent and inheritance in the male line.

The meaning of “patriarch” is given as “leader of family or tribe who rules by paternal right”. On analysis of these meanings it is evident that for some time now there has been no question of a purely or even strongly patriarchal family structure in South Africa. What has remained of a purely patriarchal system here is the man’s power as head of the family and his powers with regard to guardianship and choice of domicile. These same elements have not been undermined by the Bill but are being perpetuated. Clause 13 expressly provides that neither the law relating to the man’s position as head of the family nor the law relating to domicilium or guardianship is affected. Those elements of the marital power that are being abolished and that relate to the wife’s power to contract and litigate cannot be interpreted as undermining the patriarchal family structure. In any event, the legislation does not affect the husband/family relationship, which surely forms the cornerstone of a strongly patriarchal family structure, but the husband/wife relationship.

Therefore, in so far as we are able to speak of the existence of a patriarchal system, this legislation certainly does not undermine it in my opinion.


Hear, hear!


However, it is essential that our law of matrimonial property take into account the changed socio-economic conditions and the emancipation of women. You will note, Sir, that the hon member over there, a person who has also had training in theology, associates himself wholeheartedly with my standpoint.


In respect of many things.


I know that the hon member will also agree with me when I say that one of the principles in the husband/ wife relationship in marriage which we seek to reflect in this legislation is that of equality.


Healthy power-sharing. [Interjections.]


I am pleased to note that the hon member for Brakpan understands this matter. Although the question has not been debated in this House, the public is asking whether it is scripturally correct to speak about the equality of the husband and wife in marriage. In this regard it is interesting to note that Genesis 2:18, which is quoted in the formulary of the Afrikaans churches for the solemnization of marriages, read as follows in the old translation of the Afrikaans Bible: “Dit is nie goed dat die mens alleen is nie. Ek sal vir hom ‘n hulp maak wat by hom pas.” However, the new translation of Genesis 2:18 reads: “Dit is nie goed dat die mens alleen is nie. Ek sal vir hom iemand maak wat hom kan help, sy gelyke.” In fact, I think that everything in the story of creation points to an equivalence in nature and value between husband and wife. Prof Johan Heyns of the University of Pretoria also made the statement recently—and I should also like to say this for the edification of the hon member for Koedoespoort— that the emphasis on the rights of the wife in the struggle to allow her to achieve her Godgiven purpose is not to be summarily dismissed as a phenomenon of humanism and liberalism. From an ethnical and religious point of view, the wife is not more, and certainly not less, than the husband in marriage.

Therefore the performance of occupational work by the wife cannot be condemned for ethnical reasons. However, the performance of her occupational work has resulted in socio-economic change in the relationship between husband and wife in marriage, and therefore I think that this legislation is justified. From these points of view, therefore, I can associate myself wholeheartedly with this Bill, and I take pleasure in supporting the Third Reading.


Mr Speaker, the legislation before us probably heralds the commencement of many debates concerning this subject because one can imagine that also those matters that are still before the Law Commission, will come before the House within a reasonably short period of time and that the whole matter will then be redebated. This applies to amendments to Black matrimonial property legislation and various other aspects as well. Having had the build-up to this legislation and the publicity that it enjoyed in the media, combined with what is to come, I believe that we are moving into an era in which we are going to have a greater awareness among the public with regard to the reform process that is going to take place and continue to take place over’ some time. I think as a starting point, despite the fact that certain aspects have not been achieved, one can really say that the achievement of reform in this Bill has been done on a very stable basis and one which allows maximum opportunity for changes in the matrimonial property system to those who can agree.

Of course, one has really left out in the cold those people who because of problems in relation to, shall we say, the marital power in their marriages have become very sensitized, and as a result we are going to find that those marriages that require change are going to be placed in a situation where they cannot so easily be accommodated. Because of this I feel that the announcement made by the hon the Minister in regard to the monitoring of the effect of these provisions is very vital, particularly in respect of those areas where one has for some or other reason, often reasons based on good legal foundations not been able to bring about the sort of sweeping changes that one would have liked. It is those people who have distinct problems within their matrimonial property system at present and who are unable to change that situation at present who are going to be the interesting ones in terms of statistics. Quite obviously, within the two year period the simple change by way of a notarial deed and thereafter application to court is going to bring about satisfaction for all parties agreeing to change. Those who have problems either in relation to contractual capacity or legal capacity will then be left somewhat in the wilderness, and it is in regard to these people that I believe it would be very interesting if the department could persuade the various law societies to assist it in trying to ascertain to what extent problems occur. As far as the on-going reform process and amendments to this legislation in the future are concerned, perhaps the department could also investigate ways and means by which these cases can be accommodated as well.

This has been a very interesting debate. Although it has appeared on occasion to be somewhat light-hearted, there has also been something of a heavy undercurrent when the ancients have grumbled somewhat at the fact that some of their tribal law was being done away with. One has also heard remarks about a far better system perhaps being a thousand year entailment, and that the accrual system should be called the cruel system. We have these people in our society and they have been bastions and pillars of the old society. Of course, things do move on, and the changes that are being effected here have certainly been effected with maximum adherence to the rights of those who have chosen the previous system. No force has been directed against that system.


Should there not be local option?


There is, in fact, for those who agree. Local option is very well written in this Bill. It is a matter of choice. The problem occurs when there is no agreement, and that is where local option breaks down. [Interjections.] This can also be turned the other way because local option requires agreement.

The overriding impression one gains from this legislation is that whilst it is extremely positive and contains all the elements of the start of an era, certain marriages have not yet been tackled which are going to exist for a very long time and in which there is a considerable impediment in respect of those women who should have contractual and legal capacity and are not going to achieve it through the medium of this legislation.

Finally I want to link up with the point made in the Committee Stage by the hon member for Durban Central when he asked the hon the Minister what date he envisaged for proclamation of the legislation. The hon the Minister said that since the period had been extended to two years during which marriage partners could opt for a change in their property regime, it would give him, the department and the legal fraternity generally more time to prepare documentation for introduction. I think there one has overlooked the fact that there are people waiting in the wings for this legislation to become law, people who would like very much to be able to make use of this system. So it seems a pity that they are going to have to enter marriage under the present system and then make a change later if they want to. So perhaps the earliest possible indication to the legal profession as to the basis of the accrual in terms of this legislation would put them in a position to apply it even under the matrimonial property system that exists at present. There is nothing to prevent them from drawing up an antenuptial contract which basically amounts to an accrual system. We have already had inquiries from legal firms who are interested to know how soon this will come about and how soon they will be able to put it into operation. If they could be informed with the minimum possible delay it would be appreciated in that quarter as well.


Mr Speaker, after an absence of 12 weeks I trust that you will permit me to begin by thanking you and every hon member in this House for their support in past weeks. The experience of being aware that one is being helped and supported by the thoughts of everyone around one, is a wonderful experience, in the sense that one realizes that in fact, everything we do is only really in preparation for what is to come. Then, too, there is the blessing one experiences in a situation in which one is viewed from outside with great compassion, but one can nevertheless thank the Lord for a situation which, although it may look to us like adversity, is in fact the opposite. I want to give hon members the assurance that it is an experience that I personally needed and that it meant a great deal to me.

If I may now come to the Bill under discussion, I must say that in a sense I approach the Bill as an outsider. I was not on the select committee, and it was only at a very late stage that I had the opportunity of studying the documents. From that point of view I want to say that it has been a good debate thus far. It was of a high quality, as one may expect of jurists, even though the participants were not all jurists. It was a debate which was positive from all sides. It was conducted in a good spirit and with the aim of achieving something positive. It was refreshing to be able to attend the debate. The hon the Minister pointed out that he would refer certain ideas to the Law Commission for further investigation, and against that background I wish to make the statement that the effect of this legislation is not, in the first place, that we have reached the end of a process, but rather that we are at the beginning of the reform of the law of matrimonial property. I do not think we quite realize what awaits us, because the amendments we have accepted here will have a ripple effect in a vast number of spheres, spheres which are not all directly concerned with the law of matrimonial property but with the status in general of women.

There is just one point I want to touch on here. Unfortunately the hon the Deputy Minister of Finance is not present, but I should like to ask the hon the Minister of Justice to convey to the hon the Deputy Minister that earlier in this session he spoke about an investigation that was being conducted in connection with the joint taxability of husband and wife in marriage. As regards this point, the philosophy that is consistently applied, viz that the family is the unit for tax purposes, is very seriously taken up by the legislation we are passing here. We shall not simply be able to continue to omit to provide the wife with a tax address. When one considers all the considerations of reasonableness embodied in the Bill, one cannot accept that on the first rand of her earnings she should pay more than her husband pays on his very last rand of earnings. There is the mere fact that she does not even have a right of recovery from him in respect of the tax she pays from her income on behalf of the family, or even in respect of repayments by the Receiver. She has no right of recovery from the Receiver, and if she wishes to take the matter up with her husband she cannot enforce her rights without subjecting the marriage to risk.

I also say this against the background of the fact that in a departmental memorandum from—if I am not mistaken—the year 1976, it is stated that the tax law of the country merely follows the legal system, and that it is for that reason, viz that our legal system sees the man as the head of the unit and, in fact, as the administrator and controller of the assets, that our tax unit is what it is. By means of the amendments we are now accepting, that system of law is changing, and this in turn means that the system of taxation will have to adjust to that.

I just wished to make this point, and I am grateful for the opportunity to do so. I repeat that I am pleased to be back and I was also grateful to be able to listen to a debate of the quality we have had here.


Mr Speaker, I did not know that the speaker before me would be the hon member for Randburg, but I am pleased that he was. I think he knows that as far as he is concerned, his return to the House and we hope in good health is welcomed not only from the benches of the Government, but also from the benches of the Opposition. We are very happy that he has been able to participate in this debate today. [Interjections.] We certainly are very happy to see him back here.

I shall react to some of the things he said in a moment, but I should first of all like to say that I support this piece of legislation as my party, or part of it, does. I support the principle of it. I have not participated in the various debates until now because what I really want to say is related to the effect the legislation is going to have rather than the detail of the legislation itself.

I was prompted by, I think, the hon member for Koedoespoort in the first place and the hon member for Geduld in the second place to make a comment in regard to the role of religion in this whole matter. I for one would regret—I am sure that my two colleagues who raised the subject before me share that view—if the ancient reciprocal obligations which are recorded in the Bible as between husband and wife were to be forgotten and that recourse were to be had solely to what the legislatures of today were to provide for the relationship between husband and wife. I think it is the ancient obligations which we should observe. When a person of my faith is married those mutual obligations are recorded to be binding as mutual obligations. There is not an obligation only on the part of the one to the other; they are mutual obligations. If those obligations which I think are no different in the faith of the hon members to whom I have referred were recorded, perhaps we would not really have the need for the kind of law which we are passing here today.

In my view I believe that this Bill is actually for marriage’s that do not work. I think that in marriages that work in the normal case matters are not tackled without consensus between the parties. People discuss matters as to what they are going to do. In the marriages that work the marital powers are not exercised against the will of a wife. Each one has his or her role to play. The other fact which is important is that in a marriage that works the material assets are also shared between the parties. To my mind the ideal marriage would be a community marriage in which both parties have the right of administration and equal power in relation to this. I think that is how marriages which actually work, operate. When things go wrong, then one looks at the law. Then one looks at the legislation and at the common law, and even then the law and the legislation do not really help because it ends up in a bitter battle where each one fights for the slightest advantage. One of the tragedies we have in our whole existence against which one cannot legislate is that love tends to turn to hate so quickly when it comes to matrimonial affairs. It is one of the tragedies which exists and which no amount of legislation is going to be able to solve. When we look at this Bill, we say that we are trying to do our best in relation to a particular situation, but one cannot legislate to make marriages happy. I think there are other factors which are crucial in relation to that and that is why I say that perhaps if we go back to the ancient past, to the Bible, we may find that there is a better recipe for a happy marriage there than one finds in this Bill, much as it may be acclaimed by people and much as it may be advocated.

What I would like specifically to refer to is some of the problems which will arise from this legislation and some of the matters which will in fact require attention in the time that lies ahead. Firstly, we have abolished the concept of donations between husband and wife being voidable. The hon member for Randburg said that he thought that with this legislation we now virtually cannot avoid having separate taxation for men and women. What has to be looked at though, and I am sure the hon member for Randburg will agree with me when he looks at it, is that by having abolished the concept of donations being voidable between husband and wife you have opened the door to a considerable amount of tax avoiding. If you have separate taxation of the income from what you can transfer from one to the other and if there were separate taxation in respect of all the income, earned and unearned, would allow a considerable amount of tax avoidance. One of the things we have to look at is why there is likely to be no change in the Income Tax Act as a result of this legislation. The reason for that is because there is joint taxation at the moment. If there is not joint taxation between husband and wife we are going to have to have another look at how this particular matter is going to be dealt with, because it does open the door to a considerable amount of tax avoidance.

The same thing applies in respect of the accrual system. As has been correctly pointed out during the course of this debate, people have been able to enter into antenuptial contracts to include the accrual system without this legislation. They never needed it. People could do what they like, but they did not do it. However, one of the significant things now is that you are able to do it, and not only able to do it from the point of view of any future marriage, but also in respect of past marriages so that to some extent you can now sit back and say: “Let me look at my marriage. Let’s see who has the assets. Let’s see who has done better and how shall I plan this in respect of my estate, in respect of my wife’s estate and in respect of possible income tax implications.” A vast scope for estate planning in this context is being opened up by the legislation. The hon member for Ermelo dealt with the relationship between husband and wife and how one should plan to deal with that situation, but I think the fiscus also has a role to play. You can plan your affairs in such a way now that the fiscus gets the least share out of an estate. The creditors also now have a role. This is a rather fascinating situation. If a creditor has a claim against one of the spouses who will benefit very substantially from an accrual, that creditor cannot execute against that accrual, as is provided for in the Bill, but all he has to do is to wait until somebody dies. He sits on his judgment, and the judgment is good for 30 years, and when somebody dies, he executes the judgment and can then attach. From a creditor’s point of view there are very real implications as far as this Bill is concerned. I think we cannot ignore that but have to look at it realistically. As I have said, I think that the ability to apply the accural system retrospectively opens the door to quite a number of things. I see that the hon the Deputy Minister of Finance is listening very carefully. As he is here, I want to say to him that I actually believe that there should be no estate duty between spouses. I believe that when a husband inherits from a wife, or a wife from a husband, there should be no estate duty payable. If one does away with estate duty between husband and wife, one will avoid a lot of the problems which arise from this particular Bill, one will avoid a lot of the manipulations that will take place. I should like to recommend that the hon the Deputy Minister should tell his colleague, the Minister of Finance, to look at the equivalent in English legislation, which is the capital transfer tax. In England the capital transfer tax is not payable on inheritance from one spouse to the other. I believe that this is an example we should follow. I think it flows very clearly from this piece of legislation that estate duty between husband and wife is not desirable or necessary. We should in fact change the Estate Duty Act in this regard.

I think there are a number of problems that are going to hit us. I do not think that the hon the Minister pretends that they do not exist. I think that without any doubt they are going to arise.


I suggested it myself.


Correct. The hon the Minister did say so. I listened to him very carefully. That is why I said he is not suggesting it. One of the difficulties that arises relates for instance to the whole determination of the value of money; how we really allow for inflation; and what the weighted average of the consumer price index is, whether it is based on the income group of the parties or on the area to which one is going and whether it is not only prima facie proof of the value of money. I want to say that the definitions of the value of money will result in a considerable number of disputes when the time comes. In the same way, the whole question of laying down what one’s assets are at a particular time, specifying them and all of these things are to my mind going to create a considerable amount of dispute and will have to be dealt with. I think that, as has been indicated by other speakers, a considerable number of amendments in respect of these matters will be required in the years to come.

I think there are two issues which are clearly going to face us. The one is what the legal profession as such is going to do.


Make money.


Other than that. Since the hon member appears to be in that frame of mind, I want to say to her that, with the amount of money that is required by this Government, someone has to make money to pay tax in order to get this Government going and it might as well be us rather than somebody else. I think that the question of what members of the legal profession are going to do becomes very important because people rely on them for advice. I am already a little afraid of the standard form of precedence and the standard form that are going to be used for antenuptial contracts in the future and for post-nuptial contracts within the period laid down, because I think every case requires individual attention. While the hon member dr Vilonel tried to get free legal advice from the hon member for Ermelo, the reality is that normally advice is worth what one pays for it: If one gets it free, it is worth nothing. If one is really going to look at the position of people’s taxes, estates and future development, each contract must be tailored to meet the needs of the particular individual. I am terrified that someone is going to draw up standard forms of contracts which will then be on sale at stationers and that it will be the easy way out for some people to do that. I want to appeal to the hon the Minister in his dealings with the legal profession, which is responsible in this regard, to stress the fact that we should not take the easy way out but carefully look at each situation, plan it correctly and try to provide a tailor-made job for each individual.

In conclusion, I want to say that I do not think that this was an easy Bill to draw up in the first place. I do not think that it is a perfect piece of legislation. That has, indeed, been pointed out before. I do not think it is the end or the beginning, but I think we are going to find that we are going to have to adapt this as we go along. However, I am fearful that unless the people who are actually responsible for guiding the public on this, act responsibly and carefully and apply their minds not only to the contracts which they draw up, but act responsibly also when disputes arise, even more disputes and difficulties may arise as regards divorces than we have at present. With this legislation the doors are open to new kinds of disputes and difficulties, and I fear that unless we have a high degree of responsibility shown by the people who advise the public and unless we watch the situation very carefully, we might well be producing more litigation by this legislation.

Therefore, while I welcome and support this legislation and while I think it necessary, I still believe marriages are made in heaven and that is where they are really blessed. If they are blessed that way, they will work; if they are not blessed, they will not work. It does not matter what laws are passed, there will be difficulty and trouble.


Mr Speaker, it is seldom that one can agree with so much what the hon member for Yeoville has to say. To begin with I want to associate myself with the welcome he extended to the hon member for Randburg on his return. We on this side of the House are very pleased to have him back and we wish him everything of the best and the best of health.

The hon member for Yeoville is quite right in saying that this Matrimonial Property Bill does not really have anything to do with a marriage which is prospering, and is in fact made for marriages in which problems may arise. I had the interesting experience in my constituency of addressing groups of women with regard to the recommendations of the select committee. I asked them whether they were married in or out of community of property and whether their marital power was excluded. I was stunned to discover that in many instances they were not aware of the basis on which they were married.


Were they at least aware that they were married?


As far as I was concerned, that was the best evidence that the women in my constituency are all happily married and do not have many problems.


Are you responsible for that?


I assume that an MP is co-responsible for the happiness of people in his constituency.

The hon member for Yeoville referred to the effect in the financial world. I have not the slightest doubt that this legislation, the effect it has, will certainly have certain consequences in the financial world. I know for example that in future, financial institutions will have to adopt a different approach when they grant loans and credit.

As a member of the select committee I want to thank the Law Commission and in particular Mr Hanegan who assisted the committee as law adviser.

While I am referring to the weaker sex, I wish to thank the hon member for Houghton for the role she played on the select committee. It was a wonderful experience never to see her angry or impatient. Instead she tried to overwhelm us with her personality in order to persuade us to change the legislation to her taste. [Interjections.]

The effect of this legislation is that now, after all these years—or perhaps centuries—there will be a system which will entail juridical and economic equality. Up to the present the major problem with regard to the law of matrimonial property in South Africa has been that in respect of a marraige in community of property there has been economic equality—that belongs to one also belongs to the other one—but legal inequality. In the case of an antenuptial contract, on the other hand, there was legal equality but economic inequality. The result of this legislation is that with the abolition of marital power, legal equality is being provided in respect of marriages in community of property, and by the introduction of the accrual system there will be economic equality in the marriage on antenuptial contract.

However, there is one group of people that I am somewhat concerned about. They will have to make adjustments in practice. These are the people who were married in the past but who are now widowers. These are people who are accustomed to having the marital power. Here I have in mind in particular my hon colleague for Ladybrand. If he were to want to remarry—the chances are probably good—and he were to do so in community of property, he would have to forfeit the marital power. If he were to marry out of community of property he would have to share his assets with his betrothed.


Never! [Interjections.]


In lighter vein I want to comfort him by saying that it is the marital power that is being abolished, and not the patriarchal power!

I also wish to refer to another hon member of this House who, unfortunately, is not present this afternoon. I refer to the hon member for Schweizer—Reneke. He may be tempted …


Order! Must I assume that the hon member is advertising his intention to start a marriage bureau? [Interjections.]


Sir, I would like to assume that the majority of hon members in this House are so happily married that they are not acquainted with these circumstances. It is for that reason that I am using these examples to explain the matter to them.

The hon member for Schweizer-Reneke may find himself in a position of wanting to marry a minor. To me this is one of the most interesting amendments …


What about the hon member for Mooi River?


Yes, the hon member for Mooi River may also want to marry a minor. [Interjections.] But I do not know whether his health would permit that. [Interjections.] As far as I am concerned the most interesting aspect of this legislation—the hon member for Ermelo has also just referred to it—is that our law is based on the Roman-Dutch and Roman legal systems—many facets of our common law are derived from those old legal systems—and that the oldest real legal principles in our law have up to now been embodied in the law of matrimonial property, viz the Perpetual Edict established in 1540 by Charles V and the Political Ordinance of 1580. For the edification of the hon member for Mooi River, I just wish to point out that the Perpetual Edict specifically concerned the situation of proprietary rights in marraige. If he were to marry a minor without the permission of her parents or guardian and the marriage were to be dissolved, the hon member for Mooi River would not be able to derive any benefit from that marriage. However, the marriage would not have been null and void. On the other hand, the Political Ordinance of 1580 provided that such a marraige would be void ab initio. [Interjections ] Clauses 24 and 34 of the new legislation establish the situation with regard to these two aspects very clearly, because in practice there was a considerable lack of clarity as far as this was concerned. The result is—it makes one heartsore to think about it—that the two oldest legal principles in our legislation today, dating from 1540 and 1580 respectively, are hereby disappearing.


Mr Speaker, I am not going to hold up the proceeedings very long. I am frightened that if any more speakers come into this debate, the hon the Minister may change his mind and withdraw this Bill altogether; so I am not going to say an unnecessary word. Everybody is now beginning to point to the difficulties but, really, nobody is under any illusion that there are not going to be difficulties. Of course there are going to be, and I have no doubt that the lawyers are in for a very fine time for several years to come as it becomes obvious that amendments are going to be required.

I want to thank the hon member for Paarl for his kind words and to reciprocate his sentiments. I too found it a very pleasant experience to serve on the select committee, and I must say that I was pleasantly surprised to find out how reasonable some men could become, men that one never thought would ever succumb to female logic. However, some of them in fact did and some made quite considerable concessions in doing so, such as, for instance, the hon member for Ermelo. [Interjections.]

Despite the many, and I believe valid, reservations that we on this side have expressed during the different stages of the debate on this very important measure, I have to agree with the hon member for Koedoespoort that South Africa has taken a step—albeit not a giant step—in the direction that will be welcomed by the vast majority of women to whom this Bill will apply. It will release many millions of future wives from the shackles of marital power. It will give them contractual capacity, which they do not have today and will still, however, continue to provide them with the security which is offered by a marriage in community of property. It will ensure for future wives married out of community of property that they will have the right to claim a fair share of the accrual to the estate in the event of the dissolution of the marriage by divorce. The hon member for Yeoville is right when he says marriages are made in heaven but broken up on earth. There is no doubt about that. South Africa does have one of the highest divorce rates in the world, unfortunately.

I believe that the repeal of the prohibition against donations between the spouses is another positive step that is being taken by this Bill and also the provision giving the court the discretion to award a spouse married out of community of property an equitable share of the marriage on divorce.

I believe that if Black marriages had been included in this Bill, that this law could well have been called the Magna Charta of South African women if—and this is a second if—if only all the recommendations of the parliamentary select committee had been adopted in full. However, we know, alas, that three very important provisions that were extracted from the draft Bill had in fact not been re-inserted in the Bill which we have been considering over the past few days. That is of course the abolition of the marital power in existing marriages, the disposal of the family home and the discretion of the court in the case of a disinherited spouse in a marriage out of community of property.

Other than that I must say that if one cannot go as far as calling this a Magna Charta for South African women, I think one can certainly call it a new deal for women in South Africa. I am very glad indeed and regard myself as privileged to be present in the House when it is passed at Third Reading.


Mr Speaker, I should like to mention that prior to being introduced any Bill must undergo specific preparatory procedures. This Bill is probably one of those which in the history of Parliament has been most widely considered—having been examined by various commission, institutions and a select committee—before being introduced in this House. It has also been through the hands of my department and other departments and has been considered by our universities and professional groups on an on-going basis. All these bodies made considerable sacrifices, as far as personal time is concerned but also with regard to loss of income and so on. The product is satisfactory and has far-reaching consequences. We shall probably experience the ripple effect of the consequences of this Bill for business life in South Africa in the future.

Permit me, Sir, to mention once again a few bodies which may not always have enjoyed the necessary appreciation, particularly in respect of a piece of legislation such as this. Here I have in mind, in the first instance, the Government Printer, who does most of his printing at night. The memorandum that was put on hon member’s tables last Monday, for example, was printed at night by the Government Printer.

Then, too, major sacrifices were made by members of the department, heeded by Adv Henning, and I was at all times able to rely on the services and advice of the Deputy Director-General, Mr Van Niekerk, the Director: Legislation, Adv Noeth, his deputy, Mr Ferreira, and the administrative secretary of the Ministry, Mr Labuschagne. For the past few weeks these people have been involved in this legislation literally day and night, and I want to convey my appreciation to them for this. In addition we could at all times rely on the brilliant perceptions of the Chief Deputy Law Adviser, Dr Botha.

Then, too, in the background there was the support and sometimes the criticism of academic heavyweights to whom I referred in the Second Reading debate, and I do not wish to mention their names again. Above all, however, there was the support of the women’s associations as well as the professional groups that brought us where we are today. In this regard I wish to convey my appreciation to all these bodies.

This brings me to the select committee. In the nature of the matter the select committee proceeded further with the task of the commission. That commission was appointed at the time under the chairmanship of the present Chief Justice, Mr Justice Rabie, and a group of that commission that submitted a majority report was headed by the present chairman of the Law Commission, Judge of Appeal Mr Justice Viljoen. As hon members are aware, the select committee was chaired by the hon member for Mossel Bay. I want to say to all these bodies that I think that they showed good insight, and I greatly appreciate their contributions.

This brings me to the question: What is the position as far as the future is concerned?


The hon the Minister should also thank the PFP because what he accepted was PFP policy.


For the rest, what is the position? In a very good analysis the hon member for Ermelo sketched the effect of this Bill. As far as the law of matrimonial property is concerned, this legislation is not a development which only benefits the wife, but also, by implication, the husband. Specifically because the wife will have and already has a bigger share in the economy of South Africa, she now has the opportunity to build up an estate at the same time, and the husband will benefit by sharing, in due course, in the accrual of her state if they are married out of community of property. However, if they are not married in community of property the husband will still benefit, in that the wife will now be able to participate with greater enthusiasm in building up a joint estate because she can participate more freely in commercial transactions. We must not overlook the importance of this and I request the members of the Press to convey this fact to the public. On the other hand this could give rise to something which we in this House must at the same time guard against and that is a phenomenon I would describe as feminist chauvinism. Since we have now finally buried male chauvinism, we must not create a new phenomenon. Therefore I want to emphasize that what has happened here with regard to the law of matrimonial property benefits the husband as well. As far as the marital power is concerned I want to say that if a stigma has attached to the marital power up to now, this Bill has now finally buried that stigma. What we now retain, after people have exercised their choices to abolish the marital power within two years, is a system of administration of the joint estate of the parties that may be known as the marital administration system. I am the first to concede that in terms of paragraph 13.2.3 of the report of the Law Commission, shortcomings which entered the picture after the 1953 legislation are pointed out. For example, that Act does not give the wife control of the goods in regard to which the man may not perform certain specific transactions. I am amazed that none of the hon members opposite raised this point. They mentioned it in passing; I concede that they did refer to it, but that was in support of the total abolition of the marital power. However, the fact remains that we may now retain the marital power as a system of administration of the joint estate. In that instance these shortcomings as identified inter alia in that paragraph still stand. The question is, if we are going to regard it as a system of administration, what about that? I suggest that since we have adopted the standpoint that we are on the threshold of an evolutionary development, with regard, too, to the administration of the joint estate, we can consider this loophole. We can consider this and other loopholes that were left open—I am now referring to the 1953 Act—and which are not going to be dealt with in terms of our present dispensation. As regards those who would want to retain the marital power for specific reasons, I suggest that we have here the possibility of a system of administration that we can in due course develop as an evolutionary process. I think that the hon member will concede that I am adopting a positive standpoint. We shall certainly set the necessary machinery into operation to investigate this.

At the same time I want to inform the hon member for Houghton about what she doubted was the motivation for the Government’s decision to delete certain things from the select committee’s recommendations. I referred the hon member to a women’s organization that adopted certain standpoints in connection with this marital power and in which that women’s organization stated by implication, and also directly, that they realized that there were at present marriages in which the parties would prefer not to give up the marital power. I am not going to repeat that. However, that women’s organization said that if there were such parties, they supported the idea that there should be a choice to enable parties to remove the marital power by agreement. I indicated to the hon member that I did not wish to release the name of that organization to our members because I did not have their permission to do so. In the meantime I have asked the president of the organiszation personally whether I may use it. That organization is an association of women and women’s organizations, an umbrella organization the members of which comprise 90% of all other women’s organizations, including all the biggest and most important organizations. Their constitution describes it as “a country-wide link of a body of women and women’s organizations”. That organization is the Women’s Bureau of SA.

†I am sure the hon member for Houghton is a great supporter of that bureau. Of course she is! That bureau supported the Government in its approach that the marital power should not be abolished with a sledgehammer, but that there should be an option to have it removed through consensus of the parties. Therefore we have behind us a lot of common sense that is to be found amongst the women of South Africa.


That is Margaret Lessing’s women’s organization.


Margaret Lessing happens to be the president of this organization.

*This brings me to another matter touched on by the hon member. Again this is a point that was not accepted by the Government, viz the whole issue of the restriction on the alienation of the family dwelling. It will be recalled that the hon member for Mossel Bay quoted from a letter from a judge in which not only the definition, but also the actual substance of that recommendation were criticized and it was pointed out that we were not ripe for the acceptance of such a recommendation at the moment. Moreover, other hon members elaborated on that. What are the facts? The facts are that he asked who the judge was. I think that the hon member for Bryanston, in his old style, challenged him and provoked him. The hon member for Mossel Bay continued to maintain that he first wanted to obtain permission. The hon member for Mossel Bay apologized for not being able to be present but I arranged for contact to be made with the judge to ask him whether I may convey his view to this House. That judge is Mr Justice Didcott of Natal. Why are the hon members so quiet now?


What do you want us to say? [Interjections.]


I have often conducted debates with the hon member for Houghton. In fact this dates from my days as a backbencher. The first debate in which she and I were involved concerned third party insurance. At the time I quoted from Adv Suzman’s work Third Party Insurance. The hon member came to sit next to me over there, where the hon member for Humansdorp sits now. In those days I was a very shy backbencher.


So was I. [Interjections.]


She told me that I had quoted from a highly respected author. She said that I should continue in that way quoting sound, authoritative works and so on. However, the end of the story was the following: At the time there was a very intelligent journalist in the Press Gallery with excellent powers of observation, and the next moment I had a note from him asking me to meet him in the lobby. What he wanted to know from me was whether Mrs Suzman wanted to cross over to the NP. [Interjections.]

We must give the hon member for Houghton credit for the fact that when issues are being debated which are not of a party-political nature, she really makes a weighty contribution in this House, due to her own strong academic background and insight. Here and there her political views shone through and here and there her femininity shone through. Her political views shone through in the sense that, bred and schooled as she has been in the liberal political philosophy she was very quick to change her standpoint on the slightest provocation, the slightest evidence or lack of evidence. Thus, as far as this Bill, too, is concerned, she departed on a few occasions from the standpoints of the select committee and so on. I do not hold this against her. In a typically feminine way—we appreciate this—she changed her standpoint somewhat from time to time. That is her unquestioned privilege.

While it was her privilege, this brings me to the male component of the select committee and the House of Assembly. They contributed substantially to the so-called courageous decisions that the select committee took. Moreover, there was the debate in this House. The hon member for Koedoespoort and the hon member Geduld discussed the religious and legal aspects of the matter, and this would have made Dooyeweerd very happy. They are members of the male sex. I must be put to the women of South Africa that Parliament, which consists predominantly of men, has piloted this Bill through Parliament with the greatest degree of responsibility and that we have done so unanimously. This is not merely a PFP Bill, an NRP, a CP or anyone else’s Bill. I know that the hon member for Bryanston was not being serious in this regard. This Bill was born out of the needs that arose in South Africa and I am pleased that the hon member for Houghton agrees with what I am saying. From now on we must not permit groups and bodies to argue that there are factions of men and factions of women. I think the hon member for Houghton has shown that she was able to co-operate and that we were dealing here with a mature Bill which does not permit feminist chauvinism, whereas we have buried male chauvinism. The message that goes out from here must certainly be that the man’s position as head of the household is not being assailed, not as a result of chauvinism but due to the fact that we are dealing here with a common law situation as far as his guardianship and choice of domicile is concerned. This must be said in public because our legal system and our system of government is based on this. I think the hon member for Yeoville endorses the fact that in order to have orderly household decisions and eliminate uncertainty as regards international private law, the situation should be preserved as it stands. I do not say that it should remain that way for ever, but that is the present situation which ensures orderliness in South Africa.

Mention has been made here of professional groups. In the nature of the matter this House appeals to practitioners to avoid litigation where at all possible. The hon member for Sandton said that we should appeal to practitioners to cut costs as far as possible. We shall certainly send the hon member’s Hansard and that of other hon members to the professional groups. The hon member for Yeoville was right when he said that the success or otherwise of the measure would largely depend on the attitude of the professional people. We are not passing this Bill so that people can make money. On the contrary, I think that we must state clearly that this Bill is being passed—and I appeal to professional groups to support us in this—in order to bring South Africa up to date with the needs of marriage partners in the business world. We shall certainly convey the requests of the hon member for Sandton.

There are certain members to whom I must make specific reference. Before I do so, and convey appreciation to the hon members for Sandton, Ermelo, Koedoespoort, Geduld, King William’s Town, Randburg, Yeoville, Paarl and Houghton—I almost added Bryanston—for their contribution to a very positive debate, I should like to refer to the specific implications of the Bill which the hon member for Yeoville raised and which have thus far not been discussed. I think he deserves special attention in this connection. He referred to areas of contact with regard to income tax, estate duty and so on. The select committee itself investigated this and recommended that the Government consider the advisability of having the tax implications of the accrual system investigated by a competent body with a view to considering whether additional tax could be avoided. This recommendation was passed on to the department, and the Department of Finance and the Commissioner of Internal Revenue replied as follows:

Ek moet u meedeel dat die belasting-implikasies van die aanbevole aanwasbedeling sodanig is dat dit nie ‘n bykomende belastinglas op egpare of hulle boedels sal (hê) lê nie en dat daar dus nie op sodanige gronde enige beswaar teen die voorgestelde wetgewing geopper kan word nie.

With regard to estate duty he points out that the Estate Duty Act already allows a rebate for all debts owed by the deceased to persons who normally reside in the Republic and who have proved to the satisfaction of the Commissioner that they were redeemed with property included in the estate. The claim in respect of accrual is a debt owed by the deceased to the surviving spouse. If the surviving spouse lives in the Republic and the claim is covered from the estate property, a rebate will be admitted in respect of the claim. Therefore if it will have an effect on estate duty, which may be the case, the Commissioner for Inland Revenue will certainly, since this is in respect of a claim against the estate, have to decide for himself whether he will protect him. I think the hon member will agree that we could not keep this back at the expense of essential reform. What have we done however? We have pointed out these implications to the interested bodies.

Finally I want to say that if we were of the opinion that we had created a perfect Bill, we should certainly be making a mistake. I suggest that we are on the threshold of a process of observing our own handiwork and our own thinking. If we succeed in reducing litigation and, for example, eliminating divorces, that would be a miracle, something which the Bill does not pretend to do. In reply to the hon member for King William’s Town I may say that there are in fact people who are not going to find one another. However, we have made provision for them in clause 36 in accordance with which a just share may be awarded by the court if parties are unable to reach consensus. This meets the needs of a large segment of people who are otherwise not able to achieve consensus or reach an agreement. Because this is manmade legislation, and luck cannot be incorporated in a Bill, I move the Third Reading in the knowledge that we have done our best for the women and spouses of South Africa.

Question agreed to.

Bill read a Third Time.


Mr Speaker, I move:

That the Bill be now read a Second Time.

Mr Speaker, before the Bill was read for the First Time, in the customary way the proposed amendments to the text of the principal Act were sent for comment, in advance, to representaive bodies of commerce and industry such as the Afrikaanse Handelsinstituut, the Federated Chamber of Industries, Assocom and the South African Association of Freight Forwarders.

All amendments to the schedules of the Customs and Excise Act during the past year were bound in book form in the usual manner and tabled, with explanatory notes, in the form of a White Paper in the House of Assembly. The amendments to Schedule No 1 of the Act, arising out of the taxation proposals, has been incorporated as a schedule to this Bill.

The proposed new section 96A, embodied in clause 9, empowers the Commissioner for Customs and Excise, in collaboration with the Director General: Transport, to approve a container operator for the handling of containers under certain conditions. As a result of this insertion, it is also necessary to adapt the definition of “container operator”. Clause 1 makes provision for this. These clauses are merely giving substance to an already prevalent practice.

In terms of clause 15 of the principal Act a person entering the Republic is compelled to declare all goods in his possession. He is not, however, in any way compelled to declare the particulars of the goods, including the value, with a view to paying the correct duties. Clause 2 is now making provision for this.

Section 44(5A) and (5B) stipulates when the liability of a container operator and a depot operator respectively lapse when it comes to goods containerized in LCL containers, ie containers containing goods despatched from one or more exporters to more than one importer. Clause 3 is now amending this section in order to stipulate when the liability of the said parties lapses in regard to other containers.

Any amendment introduced in terms of sections 48, 57 and 75 of the principal Act prior to the date on which Parliament convenes for the first time for the conclusion of business in a particular session, lapses 60 days after the end of that session, unless it is endorsed by Parliament. No such provision exists, however, in regard to an anti-dumping duty imposed in terms of section 56(1 A). The proposed amendment to section 56, as embodied in clause 4, now also makes provision for parliamentary endorsement in this case.

Clause 5 amends section 71 of the principal Act to bring the value, for taxation purposes, of motor vehicles imported by natural persons for their own use, into line with the provisions of sections 65, 66 and the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade. Provision is also being made for the right of appeal to the courts.

†Mr Speaker, clause 6 deals with two aspects . The amendment of section 75(4a) and (5)(b) in clause 6(a) and (b) is a consequence of the abolition of customs and excise duties on kerosene with effect from 24 December 1982

As regards clause 6(c), I would like to explain that in instances where a permit is required in order to obtain goods under rebate of duty in terms of any item of Schedules Nos 3, 4 and 6 to the principal Act and such permit was refused to an applicant on account of facts which were not known at the time of refusal, the Board of Trade and Industries could not issue a permit with retrospective effect on review of the matter. In the past this has caused financial hardship to importers and I consider it justifiable to propose an amendment which eliminates this anomalous situation. This clause now authorizes the issuing of a permit with retrospective effect and the subsequent substitution of the original bill of entry in order to effect a refund of any duty paid. I am certain that this proposal will be welcomed by all concerned.

Mr Speaker, in terms of section 107(2)(a) of the principal Act, the Commissioner may allow goods in respect of which all the provisions of the Customs and Excise Act have not been complied with, to pass from his control on such conditions as he may impose. In these cases security is taken usually in the form of provisional payments pending compliance with specific conditions within a stipulated period. Should these conditions not be complied with, the provisional payment is forfeited but it could nevertheless result in a loss to revenue due to underpayment of duties. The proposed amendment of section 80 in clause 7 now empowers the Commissioner for Customs and Excise to impose punitive measures in such cases in order to protect revenue.

Clause 8 provides for the withdrawal of section 82 of the principal Act as the control for the import and transit of armaments are now vested in the Armaments Development and Production Corporation of SA Limited. This amendment is consequential to the deletion of section 113(5) of the principal Act in the Customs and Excise Amendment Act, 1983.

Clause 10 provides for the schedule to the amendment Bill resulting from the taxation proposals which were tabled by the hon the Minister during his Budget Speech and for the date of commencement thereof.

As usual clause 11 provides for the continuation of the amendments of Schedules Nos 1, 2, 3, 4, 5 and 6 to the principal Act which were published in the Government Gazette during the period 4 February 1983 to 20 January 1984.

Clauses 12 and 13 provide for the commencement of certain amendments with retrospective effect.


Mr Speaker, the hon the Deputy Minister appears to be somewhat unlucky in that his legislation always comes on at a rather strange hour. It is either late at night or late on a Friday afternoon. I might perhaps point out to him that at the present moment his ability to bring this legislation forward is only due to the courtesy of the Opposition because the Government does not have a quorum without the assistance of the Opposition. It is a fact which we might note. [Interjections.]


It is the quality that counts.


The quality that counts is what is here in the Opposition: that keeps it going. Without the Opposition the whole government of the country would collapse, even with the hon the Minister of Law and Order, who has just entered the Chamber. At least we have one Cabinet Minister in the House. [Interjections.] I merely draw attention to the fact that without the Opposition the Government cannot actually run the country. That is fairly obvious.


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


Yes, sure; it is a nice pleasant afternoon.


I have just counted, and there are 34 NP members in the House. Is that correct?


Four hon members must have slipped in unseen in the last few seconds. They just sort of creep in so that one cannot notice them. Sir, you should watch, them because they are a very slippery lot. [Interjections.]

Let me come back to the legislation. The fact that it is introduced at this hour of the day on a Friday does not mean that it is not very important legislation. It is very important. It affects virtually everybody in South Africa. In addition to the specific wording of the clauses which we have to deal with to amend the principal Act, the casual remarks in regard to the Schedules are in fact the most important part of this legislation. We must therefore draw the hon the Deputy Minister’s attention immediately to the fact that as far as we are concerned, by reason of the conduct of the Government, by reason of its actions, we cannot support the Bill. I therefore move as an amendment:

To omit all the words after “That” and to substitute “this House declines to pass the Second Reading of the Customs and Excise Amendment Bill on the ground that, inter alia, in the duties imposed by it are included some which—
  1. (1) add to inflationary pressures; and
  2. (2) affect local industries which are already operating substantially below capacity, and will consequently add to the already substantial unemployment, which threatens stability and security.”.

I want to motivate my amendment. The Government has repeatedly complained about the low level of savings that exists in South Africa, but if one looks at the price increases which have existed in the country, if one looks at the burden which is being put onto the taxpayer, one can readily understand why the ordinary man is unable to save and why he has to not only spend what he does in order to maintain his living standard, but sometimes unfortunately and recklessly gets himself into debt. That is the heritage which we have at the moment of the mismanagement of the economy by the Government.

Secondly, when we look at the level of taxation which is being imposed—this is a taxation measure—then we find that the ordinary South African has had the percentage of the total tax that is collected increased by more than 100% over a period of three years. In other words, whereas the ordinary taxpayer contributed only about 27% of the total tax levied in South Africa three years ago he now contributes more than double that amount. That shows how the ordinary taxpayer is expected to pay more and more of the taxation.

One of the duties which was increased in the Budget was the so-called ad valorem duty, which is referred to in this particular piece of legislation. We had a question this morning when there was a slight debate between the hon the Deputy Minister and myself in regard to the question of ad valorem duties, which I want to continue. At the present moment ad valorem duties in many cases are at the level of 35%, and are based on a so-called neutral value, which the consumer does not know. What happens in practice is that the manufacturer or importer has the ad valorem duty added onto the price. Then the retailer also adds his profit, and then on top of that we have the GST. The level of taxation which is involved is therefore not only that 35% is added to the so-called neutral value, but taxation is in fact increased because the retailer earns his profit on the gross amount, and on top of that the Government still collects GST, which will be 10% from the date as has been announced. When the hon the Deputy Minister says that we are not entitled to know the neutral value, the most important people concerned are the consumers and whereas we do not want to know the factors that go into determining the value at this time—and it may well be important at some future date to investigate these—we are entitled to know the final result. In other words, we do not ask the hon the Deputy Minister to divulge the marketing policy or the accounting methods of a particular importer or a particular industry. We are asking him to tell us what, in fact, is the basis of the calculation of the neutral value. That, to my mind, is more than reasonable because it is known that that is negotiated industry by industry and category by category. It is not always negotiated just with one individual importer or one individual manufacturer. It is an industry concept which, in fact, is applied.

When we look at that burden of taxation we also have to bear in mind that it is imposed—so it is said—by the Minister of Finance on items that are not essentials in his mind. What are essentials and what are not essentials is, however, often a matter of opinion. The cosmetics that a woman buys may not be regarded to be essential by the hon the Deputy Minister, but particularly in the light of the previous debate that we have just had, I should like him to establish whether cosmetics are or are not regarded as essential and part of the ordinary existence of the average woman in South Africa. [Interjections.] I venture to ask the hon the Deputy Minister to deal with it. The hon the Minister of Law and Order is smiling; he agrees with me. I do not know whether of not they are going to make him Minister of Finance next week. If they are we may have a change. [Interjections.] Therefore, with great respect, the whole issue of what is essential and whether the duty is imposed are extremely important issues. The reality is that these are all factors that add to the living costs of the ordinary South African.

Let us take the very point that we make in regard to this particular amendment. There is not doubt that if we increase the duties—as we are doing in this way—we are increasing them twice; once with the increase of the ad valorem duty and once with the sales tax that is earned on the ad valorem duty itself. In fact, the admission is made that as a result of the increase of these excise duties as a whole, the GST before the increase was going to go up by R10 million. Therefore, the GST after this latest increase to 10% will probably not go up by R10 million but by about R14 million or R15 million as a result. The Government is somewhat shrewd. It actually gets tax on its own tax and that is a factor that adds to the cost structure of the whole economy. Then they maintain that other people must make sacrifices in order to fight inflation. [Interjections.]

Let me deal with the question of trying to control inflation. Why does the Government not deal with imported goods for which there is an increased demand? We read that the idea is to take the money out of the hands of the ordinary individual so that there is less consumer demand and by having less consumer demand we can fight inflation. That is the theory. However, as far as I see it, there should be less demand for imported goods. In so far as locally manufactured goods are concerned, we know that many of our industries are operating below capacity. We know further that if we reduce that demand we are going to affect the economies of scale because the lower the capacity of production is, the higher the costs go because of the economies of scale that are involved. What we are therefore doing is that we are actually increasing costs in respect of those products by reducing demand. In addition to that we are, in fact, increasing unemployment, because by reducing the demand for local products we increase the potential for unemployment.

Therefore, whereas the question of reducing consumer demand to fight inflation is realistic, it has to be channeled to direct the reduction of demand into the correct category. If it is directed into the category of locally manufactured goods as is being done in regard to much of the ad valorem duty, the economy is actually being harmed and the Government is not assisting in the fight against inflation.

Let me touch just briefly on the question of motor cars. There is a philosophy in the NP that the motorist in South Africa is the milch cow which one can go on milking indefinitely. If the Government wants something, it goes to the motorist. The hon the Minister of Transport Affairs is an expert milker. Of course, he is a farmer; that is probably why they gave him that job, because he knows how to milk cows. However, he also knows how to milk motorists. The hon the Deputy Minister is in the same category. He and his Government have created a situation in South Africa where we are among the highest priced countries in the world as far as motor cars are concerned. Not only that, we have more models available than anybody else, with limited exceptions, and yet motor cars are so highly priced. Why is this so? It is because of the policy of this Government, and now we have a further special tax on motor cars.

As far as beer is concerned, as I had indicated in this House before, I am not a beer drinker. However, who does drink beer?


The workers.


The workers, right. We are in agreement for once. If one takes the amount of taxation from beer one finds that the ordinary man in the street cannot drown the sorrows caused him by this Government by drinking beer because the Government has again increased the price of beer.

Let me point out the consistency of this Government as far as these matters are concerned. All I have done is to take the hon the Minister of Finance’s Budget Speech last year and compare it with his speech this year. I should like to quote to hon members what the hon the Minister of Finance said last year. Last year he said:

So as not to disrupt the relative competitive position of the beer industry I also do not propose to raise the duty on beer.

That was what the hon the Minister of Finance said last year because he wanted to maintain a competitive situation between the wine and beer industries. This year, while the hon the Minister of Finance continued to refer to the fact that there were problems in the liquor industry in the Western Cape and that therefore he would not increase duty—virtually the identical words to those he used last year—he said:

Where sections of the wine industry in the Western Cape have been experiencing financial problems for some time, I therefore do not deem it equitable to impose or raise excise duties on wine or spirits at this time.

Last year the hon the Minister said;

Sections of the liquor industry in the Western Cape have been experiencing financial problems for some time and that is one of the reasons I do not propose to raise excise duties on wine and spirits.

He then went on to say that there had to be equity between the wine and beer industries. This year, however, he said:

Beer remains a growth industry even in today’s difficult times, and I feel the product can bear an increased tax.

What logic! The competition between the two no longer applies.

I also do not happen to smoke and neither do I wish to encourage smoking, but let me read what the hon the Minister of Finance had to say. In 1983-84 he said:

The Tobacco Board has submitted well founded arguments for the maintenance of the status quo so far as duties on tobacco are concerned, and I accordingly propose to let sleeping dogs lie.

Would you say that was a smokescreen?


The hon member may be right. This year the hon the Minister says:

Although the tobacco industry is not in a growth phase I feel that due to the needs a contribution should be made by the smokers too.

Apparently, therefore, one year there are valid reasons and the next year the same reasons apply but they are no longer valid. The consistency of this Government in regard to the imposition of taxation is unbelievable. There is just no logic in it at all. Therefore, Sir, as far as we are concerned we believe that the actions of this Government are both adding to inflationary pressures and affecting local industry adversely.

In so far as the actual changes to the Customs and Excise Act are concerned, we have no problems to regard to the provisions concerning containers or in relation to dumping. On the contrary, we are very concerned about dumping in South Africa. One of the issues on which we differ from the Government is the fact that the Government does not take enough action against dumping in South Africa. One only has to listen to the people from the shoe industry to hear what the Government has done to them as a result of dumping. They are just one example. One of the issues on which we differ from the Government is that the Government believes that what one has to do is to protect people by imposing excise duties as opposed to quantitative controls. That is the Government’s policy; they have announced it. Do hon members know why? It is because it enables them to collect taxes, whereas if there is quantitative control they cannot collect taxes from them. As a result of this there are local producers in a variety of fields who are suffering as a result of this particular kind of policy. Therefore when the Government does something to help dumping it will have us on their side because it is not only dumping, but it is also other competition that is endangering carefully nurtured industries and activities in South Africa, industries and activities that we have built up over decades. Now as a result of these new policies the Government is jeopardizing these industries, all under the pretence that it is all in the name of free enterprise, whereas it is actually harming our own enterprise.

With regard to the provision in this Bill that deals with the question of furnishing information with regard to goods to people who enter and leave the Republic, we find no problem with the fact that a person who comes into or leaves the country, as the hon the Deputy Minister himself said during his Second Reading speech, should furnish particulars with regard to what he is bringing in or what he is taking out if that is required of him. However, he should certainly not be obliged to answer questions put to him where those questions may incriminate him of an offence, because that is a fundamental principle of our law, namely that one does not force a man to answer a question that may incriminate him. The hon the Deputy Minister smiles. He was a lawyer and he has given up all these beautiful concepts in which he once believed. When we come to the Customs and Excise Act, all these principles go out of the window. We believe, however, that if one believes in it in one concept, if one actually believes that a man should not be forced to incriminate himself, if that is a cornerstone of one’s judicial philosophy, then it should apply in whatever legislation that is placed before the House.

In these circumstances, for the reasons that I have given and as set out in our amendment, we shall vote against the Second Reading and for our amendment.


Mr Speaker, when the hon member for Yeoville began his speech, he referred to a quorum in this House and said that this afternoon the Opposition was all that was keeping us going and that the Government party did not have a quorum. As far as that is concerned, I think some of us in this House will have to start learning to count because as far as I know a quorum in this House is when 30 members are present. If I counted correctly there are far more than 30 hon members in this House.

The hon member started a tremendous argument with the hon the Minister of Finance by saying that the Government was making the burden of the taxpayers so heavy that they were no longer able to cope. If we listen regularly to the hon members of the Opposition, however, we have to take cognizance of the fact that in one debate after another they quarrel with the Government because it is allegedly not spending money in certain instances. I should therefore like to know the following from the hon members. If the Government does not levy taxes in a balanced way, where must the money come from to spend those amounts they are constantly asking for? It is quite clear to me that those hon members are merely doing this in an effort to score political points outside. The PFP would do well to cease doing this because they proved to us that they do not stand a chance in Rosettenville and Potgietersrus, and that is why they did not even nominate candidates there.

The hon member kicked up a tremendous fuss here when he compared this year’s Budgets and last year’s Budget with regard to the excise duty on beer and wine. He made great play of the fact that the hon the Minister had said last year that he did not want to increase the tax on beer because he wanted to establish an equilibrium between the consumption of beer and wine. This year there is a completely different situation and now the hon member is kicking up a tremendous fuss about this.

The hon member ought to take cognizance of the fact that a situation can change from year to year. We had the same experience in the case of the production of maize. A few years ago we were dealing with an overproduction of maize in the region of 14 million tons, but the very next year we had a situation which resulted in our having to import maize. We now have the same situation with regard to beer and wine when the one is compared with the other.

The task of Parliament is to maintain law and order in the country and it must also ensure that there is a responsible and efficient administration, but money is needed for this. This means that the approval of the annual Budget and everything associated with that is the most important task of Parliament. The man in the street to whom we usually refer as John Citizen, is usually intensely involved in what happens on the day on which the Minister of Finance delivers his Budget speech and makes his announcements. The most important question usually is: What am I going to get and what is the Government going to ask of me?

What I am going to get is usually closely associated with what is going to be asked of me. The concept of “tax” revolves around this. Tax is not a foreign concept. For example, we read about it in the Bible where it is written that one must render unto Caesar what is Caesar’s. With that I am not trying to suggest that in the new dispensation we are now embarking upon the present hon Minister of Finance will be the new State President.

We need not convince John Citizen to render unto Caesar what is Caesar’s, but what is important is the question how much we must give. There are various sources at the disposal of the Minister of Finance, and one of these is customs and excise duty. What the hon the Minister is asking of us from this source is now being stipulated in the Bill.

The Customs and Excise Amendment Bill is a measure which is submitted to this House every year in order to give effect to the Budget and because customs and excise duty is also a normal source of tax. In his Budget speech on 28 March of this year, the hon the Minister of Finance announced certain increases in these duties by way of tax proposals. The amendments resulting from those increases are incorporated in this Bill.

If one looks at the Budget speech of the hon the Minister, one observes that he founded it necessary to increase the duty on a few commodities. We are glad that it was not necessary to announce excessive increases, and I am certain that the hon the Minister would not have announced the increases he did announce if they had not been necessary and particularly not with regard to commodities that are essentials in the daily consumption of John Citizen.

It is clear to us that it is the objective of the hon the Minister to maintain a sound balance in the utilization of his tax sources, and that is why this duty must also be used. The proposed increases in customs and excise duty should contribute a total of R303 million during the financial year.

Clause 2 amends section 15 of the principal Act by substituting subsection (1) in order to exercise better control over the goods a person entering or leaving the Republic of South Africa may have in his possession. The goods he may have are being defined in greater detail. It is being provided that he shall furnish full particulars in this regard to an officer, and he is also expected to define those goods fully and to answer truthfully all questions put to him by such officer. This is necessary in view of the application of the Government’s industrial protection policy by means of the introduction of protective duties and the introduction of industrial rebates on imports of raw materials, which are still making great demands on the officers of the Directorate of Customs and Excise. This will also facilitate the task of the officers to control the correct classification and collection of the applicable duty effectively as well as the utilization of the raw materials for the prescribed industry. As more trained people become available, it is expected that fewer problems will be experienced in the administration of the policy and the control on imported and excisable goods in general. This should considerably reduce the present losses on collectable State revenue which have elicited quite a lot of criticism. In his speech last year the hon member for Yeoville urgently pointed out that money was being lost in that sphere which should have been flowing into the State coffers. One will probably not succeed in eliminating tax evasion completely, particularly when and for as long as one is dealing with people, but we have the assurance that everything possible is being done to reduce the losses. If people who evade tax would only realize that once all the tax due to the Treasury ends up in the Treasury, it will not be necessary for the Minister to increase taxes and levies unnecessarily, it would be a very good thing. Administration must continue and the public are demanding services. I think that the increase in customs and excise duty in this financial year is justified and for that reason I take pleasure in supporting the Bill.


Mr Speaker, the hon member for Yeoville pointed out that there were few members of the NP present, but the number more than doubled shortly after he made that remark. It seems to us the members of the NP are no longer interested in the House of Assembly and its legislation. I am very glad about the large number of them present at the moment and I hope that they will be present until the adjournment.

As far as the Bill before this House is concerned, in the first place I should like to express my thanks to the department for the information document we received in connection with the Bill. This is very difficult work and I think that the department is one of the departments regarding which hon members will agree that they deal with very difficult work. It is difficult work to administer and to do justice to everyone in the process. We thank them for this service they are rendering to South Africa.

As the hon member for Middelburg said, this Bill is one which is submitted to this House every year. Most of the clauses are housekeeping clauses which effect amendments or improvements that are not contentious and that one need not give much attention to. Clause 10, however, deals with additional tax announced by the hon the Minister of Finance in his Budget speech. On 9 April the CP rejected that increased tax by voting against it and the hon the Deputy Minister will therefore have to accept that we rejected the principle on that occasion already. As far as I am concerned, this Bill is a continuation of that Committee Stage to give effect to those proposals in the Customs and Excise Act. Therefore we have already opposed these increases in principle.

I do not want to speak for much longer, but I do want to ask why we now have this Bill before us. The first reason is that if the NP had not wasted so much money in this country, this would not have been necessary. Another reason is the new dispensation. In his Budget speech the hon the Minister of Finance did not say a word about what the new dispensation was going to cost us. Not a single cent was voted in the Budget for salaries for the additional MPs who are going to come to this Parliament during the present financial year. There will now have to be an additional budget at some time in the future. Thus far this Government has not done anything to combat inflation. As a matter of fact it is the largest creator of inflation. The higher the inflation and the more prices and wages rise, the more taxes one is able to collect, and the Government is very happy about that. We could advance many arguments to indicate that this Government is not doing anything to protect the taxpayer and the consumer in this country. There almost seems to be a race in progress between the price increases on the one hand and the levying of taxes by the Government on the other to see which can collect the most. A mere 32 days after we had passed the Second Reading of the Budget on 9 April, it was announced that the GST was being increased to 10%. Where has one ever seen anything like that before? It has never happened anywhere else in the world, but believe it or not, it happened right here in South Africa under the NP Government, this so-called powerful Government. Recently they have been giving attention to other things and they have refused to govern the country and look after the interests, property and welfare of the taxpayers and consumers of this country.

During the Third Reading state we shall touch on other matters, for example how certain sums of money are repeatedly being spent on productivity. But we shall point out how productivity has deteriorated. Money is being spent on creating employment, but just look at the unemployment in this country. It is also said that a great deal is being done to bring about growth. If we want to achieve all this there will have to be better government. This Government no longer wants to govern. It no longer has the backbone or the courage to govern. That is why the economy is deteriorating by the day. [Interjections.] That is why extra taxes are constantly being levied to make up for, and to make provision for, other things. Except for these few remarks—as I have mentioned, we have already objected …


Hear, hear!


I am glad the hon member said “hear, hear!” because I said some useful things. They were worth a “hear, hear!”. The other amendments that are being effected are of course good ones. This is the normal course which has to be adopted with regard to this Bill, as I have indicated.


Mr Speaker, I listened attentively to the hon member for Sunnyside, because he is now the CPs official spokesman on finance.


Their shadow Minister.


Yes, as my hon friend said, their shadow Minister. As far as the economy is concerned, I think that the economists of South Africa, the financiers of the world and those persons who know something about finance and the economy, are definitely not living on the same planet as the hon member for Sunnyside. The hon member accused the Government of wasting money. He also had something to say about inflation. He alleged that the taxpayers and the consumers of South Africa were not being protected. I do not think it is appropriate to reply to the hon the member in this debate. I just want to ask him whether the entire world is not in a recession. Let him show me a single country whose economy is flourishing at the moment. Let us consider the reports by the IMF on various countries. Let us look at South America. Let us look at Britain and France. Then this hon member comes along and says the Government is not doing anything! I think that before he makes such accusations, the hon member should take a close look at the basic philosophy of economics and finance. Once he has done that he can come here and criticise. He is using these superficial arguments and this does not give these matters the value they should have.

South Africa must increase its exports. There are considerations such as the balance of payments position. The hon member knows about that. These are factors one has to consider when it comes to imports and exports, ad valorem duties and the levying of customs and excise duties. These cannot be seen as separate entities. These must be correlated with the actual finances of South Africa and attention must also be given to world finances. We are not isolated as far as this is concerned, we are part of the finances of the entire world. We have to keep pace with them. We have to export and South Africa’s books must balance and the hon member must also take that into consideration.

The Government is being accused of many things.




I wish we had the time to have a really meaningful debate on these matters with the hon member.

The official Opposition complained about many aspects through the hon member for Yeoville. The hon member referred to the footwear industry, for example. He raised certain valid arguments in this connection, but is the hon member suggesting that the position in regard to the clothing and footwear industries in South Africa is all the Government’s fault?

*Maj R SIVE:

The shoe fits.


. I am glad the hon member said that.

I want to refer to what is being said about the footwear industry. I want to refer to an article in the Financial Mail of 15 June 1984. In the article the Footwear Manufacturers Federation refers to “import penetration”. I am quoting:

South African retailers, according to the FMF, are direct importers of 90% of all foreign-made shoes sold here, with Amrel, South Africa’s largest shoe retailer, heading the list.

The article goes on to say:

Chief executive of Amrel’s footwear division, Frank Sharp, says if the FMF takes the 30% ad valorem duty into consideration and a further 20% for freight, insurance, handling and finance charge costs, South African manufacturers have more than sufficient protection against imports.

This comes from people in the industry. The hon member for Yeoville called them as witnesses. I am continuing to quote:

There are too many South African manufacturers making the same type of product, for example, ten alone making synthetic footwear which retail at between R25 to R30 per pair, all competing against one another, as a result the retailer has some difficulty in getting any exclusivity in his range …

Therefore the problem is being pointed out here. The hon member cannot therefore blame only the Government for allowing the South African economy to deteriotate to a critical extent.

The explanatory memorandum refers to the objective and the nature of certain provisions in the Bill. There are not only increases in customs and excise duties. I think that the hon member for Yeoville will also look at this memorandum and will agree that there are not only increases, but that there are also a number of rebates. Everything has not simply been increased, there are rebates on quite a number of items.


How many are increased and how many are decreased?


The hon member must count them for himself.

The Board of Trade and Industries made certain recommendations. Urgent attention was given to them and where possible rebates were introduced accordingly. I think that the hon member is presenting this House with the distorted picture that only increases are being introduced in customs and excise duties. Rebates are also being allowed. If one takes note of this Bill—which I support—one finds that the Government and South Africa need the finance. One should therefore not only take note of the actions of the Government, but also of those of the industry. One should also take note of free enterprise. We are all partners in placing our economy on a sound footing. I therefore take pleasure in supporting this legislation.


Mr Speaker, the speech by the hon member for Overvaal was not lacking in enthusiasm but it was not very convincing. I have listened to what the hon member said but we are still in conflict with the hon the Deputy Minister about the provisions contained in this Bill.

†Sir, may I say that in evaluting customs and excise one must bear in mind that this is just a form of taxation as well as the implementation of fiscal policy. The hon member for Yeoville had it in for the Government, as we do, that it is using this form of revenue generation possibly to excess and to the detriment of those objectives which we wish to pursue and attain in the fiscal policy in South Africa. The hon member has indicated that they will vote against this Bill—he moved an amendment to that effect—because it does not promote employment and because it aggravates the position of inflation. My hon colleague for Amanzimtoti, who is in fact our champion fighter against inflation—we support him enthusiastically—regrettably is flat on his back this afternoon with a serious dose of flu. That is why he will not be here. However, there is often more than one good bottle of wine in a case and I therefore hope to be able to make a fairly good case here today.


Pull the cork, Ronnie!


We will certainly do that. We will go for it. In looking at the schedules and the provisions of the Bill itself we have a great disagreement with the hon the Deputy Minister in terms of the fiscal policy aspect rather than the specifics contained in the schedules as such. I hope to elaborate and illustrate our feelings as I go along.

Let me say as a background to this—this is very important for us—that we believe the Government’s problem is not a lack of revenue but an excessive expenditure. That is fundamentally the problem we have with the fiscus today. The Government is generating greater and greater amounts of revenue, and the problem therefore is not one of a lack of finance but of overexpenditure.


Quote examples.


I am going to quote examples. Let me start with the revenue side. The hon the Minister of Finance and hon members on that side complain bitterly because the price of gold continues to decline. The price goes down, and then up marginally and on average it goes down again. This is seen as a terrible disaster for the Government. In fact, it is not so at all. It is a disaster for the country in respect of foreign exchange and for investors in gold, but it works to the benefit of the Government in terms of revenue from taxation. This is simply so because one must also look at the ratio of the dollar to the rand. If we look at the depreciation of the rand against the dollar we will find that the Government is better off in terms of rands today, in terms of revenue from gold mines, than it was last year. The Government is getting the money that it wants for expenditure internally from gold.

In addition to that we have had a very considerable increase in GST. As the hon member for Yeoville correctly pointed out, in terms of certain of the ad valorem duties the Government is collecting taxes on taxes with the GST as well. There is therefore no shortage of money. The problem lies with the overexpenditure.

Let me give the hon member for Welkom another example, namely the increase in the size of the Civil Service in South Africa, which also has to be paid for by taxes raised.


That was rationalization.


Yes, that was rationalization. The increase in the size of the Civil Service makes for the fastest growth industry in South Africa.


What about the population explosion?


Yes, that as well. That is also a problem. That is costing South Africa money because one has to provide infrastructure for people who are not productive. That is a problem of a different colour. I do not blame the Government entirely for overpopulation, although obviously it is not doing enough to raise the standard of education of the average citizen to a level where he will exercise birth control. The hon member for Parktown will agree with me on that. That is one example of excessive expenditure. The Government has not curtailed its expenditure relative to the needs of the country when it comes to the Civil Service. What is going to happen when the tricameral Parliament starts to operate?


Give a better example.


I can give the hon the Deputy Minister a lot of examples.


He did not like that example.


Perhaps he would like a worse one rather than a better one.


Mr Speaker, is the hon member suggesting that civil servants are overpaid?


I say the size of the Public Service, the number of people, has increased by more than 11% at a time when, in fact the country requires less government and not more government. I think that the hon member who posed that question will agree with me that we have the greatest bureaucracy in ratio to our working population outside Russia. [Interjections.] One third of everybody employed in South Africa works for a State or semi-State organization.




Very well, 35%—call me a liar for 2%. The hon member for Sunnyside reminds me that there has been an increase; therefore; 35% of the people working in South Africa are non-producers in that sense.

I should like to give the hon member for Welkom and the hon the Deputy Minister a further example of inconsistent expenditure and fruitless expenditure. I am not referring now to the various ministries, but to the way in which drought relief was conducted in this country, and the hon the Minister of Agriculture is at present in the House. Because of the policies of this Government, not in their willingness to provide relief but the way in which they provide it, it is not helping 60% of the farmers it should be helping. The way in which it is administered is totally inappropriate and we should refine our system in that regard. Ask any of the farmers who are suffering tremendously in grade three of the drought relief programme whether the system used by the Government is working for them. It is not. The hon member for King William’s Town can give us hundreds of examples to show how, in fact, that expenditure is almost fruitless because of the delays and the bureaucracy involved in the administration thereof.

The hon the Minister of Finance is also collecting more income tax today because of the fiscal drag. Salaries have gone up because of inflation but the categories of taxation have remained basically the same. Everytime there is a salary increase for members of the Public Service or for private enterprise, the hon the Minister collects more and more taxation.


And Parliamentarians.


The same applies to pariamentarians, as the hon member for South Coast reminds me. If ever there was a category which is underpaid and overworked, it is to be found in this House, and I think all hon members agree with that. [Interjections.]

We believe that, excise tax or customs is a valuable source of revenue. It is actually a source that we prefer, and that may sound like a contradictory statement from me in the light of the fact that we will be voting for the hon member for Yeoville’s amendment, but we still believe that customs and excise is a method of raising revenue which is desirable and I will tell the hon the Deputy Minister why. We have said repeatedly in this House that the stand of this party is that we prefer indirect taxation to direct taxation. We also believe that income tax is not a good way to raise revenue in the sense that the productivity of the population is reduced as well as their eagerness and incentive to work. It is better to tax consumption. GST, customs and excise are all in the category of taxation that we prefer. However, the problem has been that we want the hon the Deputy Minister and his Minister to reduce income tax and only then to increase GST and other indirect forms of taxation and not to bring it in addition to higher income tax but as a substitute in the form of taxation.


What is the origin of customs and excise?


I think there are many origins depending on which country one looks at. It is part of the fiscal policy and it is also just direct revenue raising. If the hon member for Roodeplaat wants to know, he can go to the various countries which exercise their revenue raising via customs and excise and he will see that it is used as a fiscal policy for trade protection. It is also used to raise revenue and it is used to manipulate the industries in one’s country. The hon member will know that there is a very strong possibility that the port of Walvis Bay will one day become a free trade area, and what does that mean? No tariff protection for industry, very low or no customs and excise tariffs. One can therefore use that to manipulate one’s productive capacity in that area. Those are the reasons why one has customs and excise. What the reasons are in other countries the hon member can find out for himself.

May I just say that as far as the main amendment of the hon member for Yeoville is concerned, we shall be voting for it; in other words, we shall be voting against the Bill. However, we shall not be able to vote for the proposed amendment by the hon member to clause 2, and I shall tell the hon member why.

Although it is accepted in law that no individual should be coerced into making a statement that may be used against him, what we are looking at here is a universal practice that has been accepted in law in most countries. This is that when it is a question of the entering into any country by an individual he is required to make a truthful declaration in regard to the goods in his possession. Customs and passport officers have the right to examine the goods he has declared and to see whether in fact he has made a correct statement.


Do you agree with that, because there is only one section we are taking out.


The provision which the hon member does not like and which he wishes to substitute is that the person should not be required to make a statement which he thinks may incriminate him or may be used against him at some other stage. That is, of course, a principle in law which one accepts under certain circumstances as well. However, in this case we are dealing with the accuracy and truthfulness of a declaration regarding goods brought into the country. That has been accepted universally and therefore, unfortunately, we cannot see that under these circumstances the amendment of the hon member for Yeoville is necessary.

I also want to say to the hon the Deputy Minister that should he decide next year to coerce whoever may be the Minister of Finance into imposing additional customs and excise duties or raising GST, we shall only support such a move if it is brought in as a substitute for income tax. Until such time as that occurs, we shall vote against this type of legislation.


Mr Speaker, I want to endorse the remarks made by the hon member for Durban North in regard to wastage of money. For the Government to ask the hon member for examples is quite ridiculous. There are hundreds of examples where foolish policies and impractical policies waste hundreds of millions of rand. An agricultural policy that produces a surplus of maize at the cost that we have involved ourselves in to produce that surplus, and then export that surplus on the basis of a tax on the local population, is obviously wasting money. The method of road financing that we are developing is going to be a waste of money. The method chosen by the Government for job creation is a most extraordinary waste of money and is going to waste mind-boggling amounts of money. To take it further, serious extravagance on the part of this Government is also a waste of money.

I want now to refer to the remarks by the hon member for Overvaal. The hon member asked: “Verkeer die ganse wêreld nie in ‘n resessie nie?” Is the hon member not aware that the rest of the world—Japan, Germany, the United States and the United Kingdom—has been in a growth phase of from 2% to 7% for almost two years now. Does he also not know that over the past five years South Africa has averaged a growth rate of just over 1% in GDP? I do not believe that one can allow this Bill containing these tax increases to pass through this House almost by default, because it displays an attitude of mind that this Government has towards taxation. When the hon the Minister of Finance announced an increased tax on motor vehicles during his Budget Speech—I want to concentrate for a while on this question of motor vehicle tax—he said:

It is … appropriate to review the contribution to the Exchequer by the motor industry … I feel that buyers of new vehicles can afford to make a larger contribution to the State’s coffers.

Why is it appropriate, Sir? Does the hon the Minister of Finance not deem it necessary to tell anybody why he thinks it is appropriate? He goes through the countryside like some mediaeval tax collector seeing whom he can squeeze just a little bit more without choking him to death. There is no logic in his approach at all, and there is no attempt to bridle Government expenditure either. In the years 1981, 1982 and 1983 we averaged a yearly increase over the previous year of a little over 18%. Is that not unbridled expenditure? 1984’s expenditure, we are told, will be an increase of 11,7% over that of the previous year, but not one hon member on the opposite side would wager a depreciating rand that that will be achieved. They do not expect it to be achieved, and nor does anybody else in the private sector. This is one of the most dangerous aspects of our financial administration. In the eyes of the private sector the hon the Minister of Finance has lost all credibility. To restore the public’s confidence in the Government’s financial administration will be a long and hard road that somebody has to follow. He will also have to show a lot more courage to withstand political pressures from his colleagues than the present incumbent has done.

Transport cost increases run through the economy more rapidly and pervasively than almost any other increase in cost with the exception of labour costs. It has been estimated that 55% of motor cars are bought by companies for work purposes. If the price of these vehicles is increased, obviously these extra costs are costed straight into goods and services. Those vehicles that are not bought by businesses and are bought by private individuals affect immediately the cost of living of those private individuals and increase their expectations of reward.

There is another aspect to this matter. Motor manufacturing accounts for over 60% of the total locally manufactured product of the Port Elizabeth and Uitenhage area. Black unemployment in that area is probably over 20%. It is certainly one of the highest in the area. On the one hand the Government pours money into untested industries established in remote, unsuitable and inappropriate places and creates jobs at a cost of over R37 000 per job opportunity. That excludes the cost of infrastructure. If one takes the figures given by the hon the Minister of Industries, Commerce and Tourism, which were that R2,5 billion investment will create…


That is private investment.


Oh, the hon member does not think that the country just has so much money; he thinks there is some in this pocket and some in that pocket. One must understand that this is one economy and that whether the private industry or the Government spends it it is money that the country either can or cannot afford to use wastefully or well, whatever the purpose is. But that remark absolutely typifies the attitude of this Government. That is private money; we can waste it as we choose!


Private enterprise chooses. [Interjections.]


On the other hand it places an extra tax burden on the manufacturing industry in an area like Port Elizabeth where industry has already had to dismiss and discharge people, where it can re-employ those people and keep them occupied at no additional extra cost per job opportunity because all the infrastructure is there. If the Government would curb its own extravagance, stop spending money on impossible ideologies, then extra taxation would not be necessary.

The private sector, the wealth-producing base which supports this whole political economy, is just not strong enough to finance the Government’s ideological obsessions. The result is seen in inflation, which is possibly at 11% more serious than it was at 15% three years ago, because if one cannot get one’s inflation in the trough of a recession to below 11%, what is going to happen if one does manange to get the economy to start to rise again?

I have already mentioned the lack of growth. In the economic development programme it is budgeted at approximately 5%. Over five years we have averaged a little over 1%. There is also the question of unemployment, and this increases year by year at an alarming rate with all the social problems which follow in its wake. Increasing taxation, an aspect which has been graphically described by the hon member for Yeoville, causes us to become one of the most highly-taxed nations in the world.

In the Committee Stage I shall move an amendment to delete this tax proposal.


Mr Speaker, it is not often that I get the opportunity to stand up in this House and to agree completely with everything the speaker before me has said. I should like to add to that, if it makes the hon member for Durban North any happier, I completely agree with what he had to say too, except for one small item. [Interjections.]

The Bill seeks to increase excise and customs taxation and hence to increase Government revenue. We on this side of the House shall not pass any measure which serves to increase Government finance until such time as they can convince us that they are going to show some restraint in how they spend the taxpayers money.

Had I had the opportunity today, I would have moved an amendment in the Committee Stage aimed at a reduction in the excise tax on beer. I shall not have that opportunity but I want to speak on a few matters related to the amendment I would have moved. There are two reasons why we would have moved this amendment. Firstly, we believe that this increase in the tax on beer is symbolic of the uncaring attitude which the Government at the moment has towards the ordinary man in the street. In addition to that, beer is the drink of the ordinary man, and the drink of the young person. I do not think that many people realize that every time they drink a small dumpy of beer, something like 19 cents is going into the coffers of the Government, and with the increased excise tax we again end up with the situation of having a tax upon a tax.

I think it is just as well at this juncture to remind hon members of the increased burdens that have been placed upon the man in the street over the last year. I shall not go into great detail or be repetitive here, but firstly we had an increase in GST. We have another increase in GST coming up shortly, and there are rumours that there is a possible further increase in the offing later on in the year. I should like to take the hon the Deputy Minister on in a bet of a bottle of whiskey that GST will go up again later in the year. It is a bet which I shall happily lose.

We have the matter of fiscal drag, and as this aspect was brought up by the hon member for Yeoville, I need not go into it again, but we are more heavily taxed than ever before because of fiscal drag. The man in the street has faced increased prices on virtually everything. I am sure that most of the hon members whose wives shop in supermarkets will have heard from them what has happened to their shopping bill in the last year or so.

In addition to that, the most cynical act I have ever come across is that while we are reducing GST on essential foodstuffs by 7% from the beginning of July, on exactly the same date we get an increase of 7% in the price of dairy products. If that is not cynical opportunism, then I do not know what is. Then we have interest rates which are at an unheard of level. The average man in the street cannot afford to buy a home any more because of the high mortgage rates. He is crippled by hire purchase payments and paying back loans. Interest rates have never been higher. Then there is inflation. I will not repeat what has been said about inflation as this subject has been adequately covered by the hon member for Walmer. Then, of course, the man in the street also asks himself what is still to come. We have rumours of increased taxation to finance third tier Government, an employment tax, a turnover tax and an investment tax have also been mooted to pay for this. At the same time the size of the cake has actually become smaller over the last two years. It means that the Government is taking a bigger and bigger slice out of the same cake. That is exactly what it is doing with the Bill we have before us today. It is for all these reasons why I would have been moving an amendment for a reduction in the excise tax on beer. It is one little luxury the man in the street still has. It is one little luxury he probably needs to give him a little relief by helping him to forget about the problems he is facing. For that reason I will be supporting the amendment moved by the hon member for Yeoville.


Mr Speaker, I have a few problems with regard to the Bill. I cannot understand the hon the Deputy Minister not mentioning anything about clause 13 at all. He gave an explanation of everything else but he forgot to tell us why clause 13 is necessary.

Normally the Oil Seeds Control Board issues a recommendation for import permits and states at the same time that where a permit has to be obtained for the importation of sunflower seed oil, this oil should be imported under rebate. Why were the import permits in this particular instance not in order? At a particular time last year a large amount of sunflower seed oil was imported and it seems very strange that in this particular case a rebate was not given. The hon the Deputy Minister also did not mention how much money is involved and how much rebate has to be returned. It is very difficult to understand how this could have happened and we would like to know who was involved in it. The hon the Deputy Minister should at least have told us exactly what had happened as far as this aspect is concerned.

In connection with clause 2 I would just like to say that we have enough immigration forms that have to be filled in when you come into South Africa, as well as the new small customs form you have to fill in. I cannot understand why the hon the Deputy Minister wants to have this particular provision on the Statute Book. Has he been to for example Jan Smuts Airport on a Friday evening when thousands of people hardly have time to go through immigration and get their passports stamped, while they will now also be subjected to this particular investigation which the hon the Deputy Minister wishes to impose? If he had been to a number of seminars on tourism which have been held lately, he would know that one of the things that had been said was that the tourist in particular must be troubled as little as possible either when he enters or leaves the country. I would like to know what the actual purpose is of the introduction of this particular provision. Are we going to have new halls built at Jan Smuts Airport and at other places where someone when he leaves the country, just as he has when he comes into the country, has to make this declaration?

Finally, I would like to ask the hon the Deputy Minister how he controls his customs union with the various so-called independent states around South Africa. How can it be that the South African customs can be cheated out of this tremendous amount of money and that the Swaziland Government has to get rid of certain Ministers? How can such a thing happen? I think the hon the Deputy Minister owes it to the country to tell us what actually happened.

The other thing is that the customs union gives money to states without specifying how they should spend it. The hon member for Bryanston raised the question the other day of the large amount of money that is going to be spent on a useless airport in Ciskei. Surely, if you have a customs union, you should be able to exercise some control over how that money is spent.

That is why we oppose the Bill.


Mr Speaker, I must say that it was with the utmost amazement that I listened to the speeches by the Opposition on this specific Bill because they spoke about everything except the Bill. The hon member for Yeoville moved an amendment indicating why the Bill would be opposed. I have not been in this position for very long. The hon member now claims to have been a practising lawyer. I was one, too, and in such a case we always showed one another the courtesy of giving our colleagues or opponents a copy of amendments.


I am not your Whip.


I merely thought that the hon member would have shown me that courtesy, but unfortunately he did not do so. [Interjections.] I shall leave it at that. I just want to say to the hon member that in future, when I have an amendment I shall send it to him, whether the Whip comes to fetch it or not.


My amendment appears on the Order Paper. [Interjections.]


Now, I do also want to praise the hon member a little. I think he made a better speech about the Bill on marriages. He made a good speech there. In his speech on this Bill, however, he only uttered a lot of generalities. He came up with a whole series of complaints. He again drew up the same list of complaints that he put forward in the budget debate. He can take these complaints further in the Third Reading debate on the budget. I had only hoped that we would be able to conduct a meaningful debate here about the matters which the Bill relates to. If he is now going to ask that the levies embodied in this Bill should not be imposed, then there is between R140 million and R150 million that must be found. I now ask him: Does he want us to increase direct tax?


That is unnecessary. The Government must simply not waste money. [Interjections.]


Oh, of course. Cut the ideological expenditure, is what they will say. Now I want to ask the hon member whether his policy of a federal system—is that still his policy?—would not also entail extra ideological expenditure.


No, it would …


No, Sir, the official Opposition believe they need not do anything because then everything will come right. [Interjections.]

This Government has spent money in order to give people employment. I do not apologize to anyone for that. I wonder whether the hon member has ever considered the success we have achieved in this regard. We speak in terms of hundreds of thousands of job opportunities. This has been achieved in co-operation with the private sector. [Interjections.] The hon member went on to contend here that I had supposedly said that the public was not entitled to know. Surely I did not say that.


Look at the …


No, Sir, I did not say that. I said that that information could not be obtained from the Commissioner. Surely there are other ways in which it can be obtained. If the hon member wants to buy a motorcar, surely he will go to the garage, look at the price of the car he wants and say: “Really, the price is too high. Tell me how the price is calculated.” He would then be given the information. I myself have done so. An indication is given as to what the purchase price is and how much is paid in tax. Surely he can get the information there. The hon member is simply trying to score a political point. [Interjections.]


Mr Speaker, may I ask the hon the Deputy Minister whether he will please tell us whether the retailer who sells the article actually knows the neutral value, seeing that the neutral value is determined by the manufacturer or wholesaler where the duty is levied, and the retailer does not know it either. How can one then go and ask the retailer, as the hon the Deputy Minister has suggested.


But surely that is simple. The retailer can simply ask the wholesaler for the information. He is free to do so. The retailer can say: “If you don’t tell me, I shall buy from someone else.” After all, we have free trade here. [Interjections.] The hon member had a lot to say about the point that we were now supposedly imposing tax on tax. I concede that there is an element of truth in that, but this is an international rule that applies everywhere. Can the hon member imagine what administrative problems would arise if this were to be prevented? This is an international form of tax that is imposed. It is totally ineffective to do anything other than what we are doing, and the hon member knows it. The hon member merely says that we do not want to do certain things and that we are wrong. However, he says this without saying what is right, and without making a constructive contribution he speaks in generalities and condemns everything. I must honestly say that the hon member has disappointed me today, and I am pleased that the hon member for Overvaal made him look sheepish with a quotation that came out of the industry itself.

Even the hon member for Yeoville can raise a matter with the Board of Trade and Industry.


I challenge you on the problems on the shoe industry any day.


If the hon member is aware of problems in the industry there is nothing preventing him from referring these matters to the Board of Trade and Industry. That is the responsible body that investigates such matters.

Various hon members have referred to the question of the tax on beer. The hon member for Yeoville compared the speech that the hon the Minister of Finance made last year with the speech he made this year. The hon member also knows a great deal about finance and has more experience of it than I. Therefore the hon member knows that finance is something that is fluid and that these things have to be adjusted in accordance with circumstances, realities and economic circumstances that we are faced with. Therefore there is nothing strange about the hon the Minister not having said this year what he said last year. If one were to argue along the lines that the hon member does, one could draw up a budget for five years in advance. [Interjections.]

I shall not go into the amendment to clause 2 which the hon member for Yeoville is going to move. I shall discuss it with him in the Committee Stage.

Nor is there anything strange about the fact that in a time of economic recession, personal tax becomes disproportionately higher than one would otherwise have expected. The hon member weighs up personal tax against other, indirect, tax. Is the hon member adding sales tax to what is paid by individuals? If he is doing that he is wrong, because much of that amount is not paid by individuals but by companies.


The hon the Deputy Minister is now attacking the figures provided by the Reserve Bank.


As far as unemployment and the general economic situation of the country are concerned, I challenge the hon member to compare us with any comparable country in the world. We stand head and shoulder above other countries, and that is the truth. Why does the hon member not dispute that? [Interjections.]

I want to thank the hon member for Middelburg for his contribution. He asked the pertinent question. He asked where the money is to come from. Surely it is ridiculous of those hon members to want to argue at this point that the Second Reading of the Appropriation Bill, which has already been passed through this House and which is now being given effect to, should be negatived. Surely that is childish. Surely it is childish to come and ask for that now, after the principle has already been accepted by this House. Does the hon member not accept the decision of this House, of which he is part? [Interjections.] The hon member also referred to the protection of industries, and in general he put forward a balanced view. I thank him for that.

The hon member for Sunnyside also tried to make a contribution. [Interjections.] He raised several irrelevant matters and made a number of allegations which were totally lacking in substance. For example, he said that the Government’s time had run out, whereas in point of fact the position is that a few months ago we won a two-thirds majority in the referendum. He also said that the Government did not want to govern. Why does he not refer to the Government’s initiatives? Hon members of that party do not know whether they should say “yes” or “no”; they simply sit and look at the voters. I do take into account the fact that the hon member expressed appreciation of the department, but I do wish to say to him that he did not make a substantive contribution either. He did not even try to do so.


But you cannot reply to anything. [Interjections.]


I am here to defend a specific piece of legislation on customs and excise, and thus far there has not been a single point to which I can reply. As yet there has been nothing relating to the legislation to which I have to reply, except those matters that I shall reply to in the Committee Stage.

I have already referred to the outstanding way in which the hon member for Overvaal replied to the speeches of the hon member for Yeoville and the hon member for Sunnyside. He made a valuable contribution and advanced profound arguments. I take pleasure in thanking him for doing so.

The hon member for Durban North made a general statement that the Government is guilty of over-governing. On being asked to mention an example, he began by hesitating somewhat and then said that our Public Service was too large. He said that too many people worked in the Public Service. That is a very irresponsible thing to say. Sir, do you know what the hon member is actually saying by implication? He is telling employees of the State that they sit there with nothing to do. Is the hon member making that accusation? Say so now.


You use too many people to do the work.


The hon member must admit that he said by implication that because the Public Service is too large, there are several people who do not work. Say it! Is the hon member saying that to the Public Service? [Interjections.]




He says that by implication. Certain words entail certain inferences. [Interjections.] The fact of the matter is that we should like to employ fewer people. However, the hon member is comparing us with First World countries because things are going so well in this country and because the Government is running the country so well.


What are we?


We are probably 20% a First World country and 80% a Third World country. Has the hon member never heard of that?


I think you are causing us to become a Third World country. That is the problem. [Interjections.]


The hon member for Yeoville has just sketched the motor trade as the orphan who is always being ill-treated, but last month the motor trade experienced the best month ever in this country. Why? Because this small population of industrialists and business people … [Interjections.]

In accordance with Standing Order No 22, the House adjourned at 17h30.