laid upon the Table:

1. (1) Transport Services Appropriation Bill [B 59—87 (GA)]—(Minister of Transport Affairs).
2. (2) Extradition Amendment Bill [B 60— 87 (GA)]—(Standing Committee on Justice).

Mr Speaker, I move without notice:

Agreed to.

Mr Speaker, I move:

The Commission of Inquiry into the Structure and Functioning of the Courts, the Hoexter Commission, found that in the process of adjudicating divorce actions, important disputes within the family were often artificially withheld from the court’s decision as a result of our adversary system of litigation. The commission also found that the unsatisfactory manner in which many uncontested divorce actions were dealt with was partly due to the fact that during the investigation into the suitability of the proposed provision for the minor children of the marriage, only the evidence of the plaintiff was considered by the court. In many cases this has led to unsatisfactory settlements in divorce-related actions. Welfare agencies then, sooner or later, have to deal with the same family problems once again, thereby placing a strain on scarce manpower.

The Bill now before Parliament is the product of an investigation by a joint committee appointed during 1985 to consider, inter alia, the recommendations of the Hoexter Commission. It commenced with a Family Court Bill. The joint committee considering this Bill encountered obstacles which prevented the completion of its task. However, realising the urgent need to deal with the interests of children in divorce-related matters, it recommended this Bill as an interim measure. The members of the joint committee should therefore be commended for their insight and for the fact that they have the interests of our unfortunate children at heart. A newly constituted joint committee will now pursue its task with regard to the Family Court Bill. In the meanwhile we are today in a position to proceed with the Bill before us.

The broad object of the Bill is to help courts, adjudicating divorce actions and related matters, to decide whether the interests of the children involved are being properly looked after.

The Bill envisages the appointment of a family advocate, assisted by a family counsellor. His task will be to investigate and report to the court on matters concerning the welfare of minors or dependent children of the marriage or on matters referred to him by the court. He will also be qualified to appear at a trial or hearing and to act there in the interests of the children concerned.

The qualifications laid down for the post of family advocate will not only ensure that the incumbent has an advanced legal background, but also that he is experienced in dealing with family matters. These stringent requirements are justified because the family advocate will be charged with the protection of children who normally do not enjoy special legal representation in divorce actions in which their vital interests are at stake. When a marriage breaks down and parents become estranged, forces come into play that can have a devastating effect on the physical and mental well-being of the children. It is at times such as these that wise counsel is called for.

Since the family advocate is primarily a legal person, and because the problems of a broken home fall mainly within the scope of work of the social science disciplines, clause 3 makes provision for the appointment of family counsellors to assist the family advocate in his functions. In order to make allowance for maximum participation on the part of the community, no specific academic qualifications are prescribed. The ideal, however, remains to fill these posts with persons who are academically qualified in the social sciences and who, in addition, specialise in family counselling.

†Clause 4 provides the circumstances in which an enquiry by a family advocate is to be instituted. In the first place such an enquiry shall, after the institution of a divorce action or after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, be instituted at the request of any party to the proceedings or at the request of the court. Secondly such an enquiry may be instituted if the family advocate is of the opinion that it would be in the interests of any minor or dependent child of the marriage concerned. In such a case, however, the family advocate is obliged to apply to the court for an order authorizing him to institute the enquiry. This clause also makes provision for the family advocate, if he deems it in the interests of any children or if so requested by a court, to appear at the trial of a divorce action or in certain applications arising from a decree of divorce, and to tender additional evidence and subject witnesses to cross-examination.

Clause 5 empowers the Minister of Justice to make certain regulations.

The proposed measure is an innovation in our divorce procedure. I often wonder whether we in South Africa have not laid ourselves open to the criticism levelled at the British divorce law. They, like us, have removed the guilt principle from their divorce law, but like us, too, have retained the same divorce procedure. It has been said, and I quote:

The existing procedure will, of course, still apply to proceedings in terms of this Bill. I trust, however, that the Rules Board will soon bring relief.

It is with great enthusiasm that I accept the recommendations of the joint committee, as contained in this Bill. The Bill can be regarded as an initial step in the move away from a formalistic approach to the adjudication of family matters.

Mr Speaker, this is one of the Bills—there are about 27 of them—that are now being submitted to the House in terms of the decision taken last week that we should continue with the legislation from the point at which we stopped when Parliament was prorogued. We shall of course continue with it despite the provisions of section 40 of the Standing Rules and Orders. Thus the present position is that hon members on this side of the House did not have the privilege of hearing the evidence submitted to the Standing Committee, nor did they have the privilege of being able to make a proper study of the memorandums. I therefore want to say at the outset that I do not think dealing with legislation in this way is conducive to good legislation.

Having said that, I want to tell the hon the Minister that the CP supports this legislation, not only on the basis of what we were able to research in the short time available to us, but also on the basis of our own experience regarding matters relating to divorce.

As the hon the Minister said, provision is now being made for the appointment of a family advocate and a family counsellor who may intervene in divorce proceedings. There are certain qualifications attached to these two posts. For example, the family advocate must meet the requirements for admission as an advocate in terms of the Admission of Advocates Act. As far as the family counsellor is concerned, he is appointed purely because of the knowledge and experience he has acquired.

As the hon the Minister indicated, clause 4 of the Bill provides that the family advocate may intervene in the proceedings on his own initiative; alternatively, when one of the parties or the court requests him to, he is obliged to intervene in the proceedings. The duties of the family advocate are defined to a certain extent, whereas the duties of the family counsellor are not defined. I assume this will be done by means of regulations, because the Minister is being empowered to make regulations that determine the conditions of service of the family counsellor. Perhaps this is a deficiency.

The rationale behind the legislation has been explained by the hon the Minister. It arises from the recommendations of the Hoexter Commission and the basic reasons are twofold: Essential disputes within the family are often artificially withheld from the decision of the court as a result of the accusatorial system of litigation; and in the second instance, particularly with in divorces, there is often no thorough investigation into the suitability of the proposed provision for minor children or dependants.

In my opinion there is no fault to be found with the first aspect. As far as the second aspect is concerned, however, the question remains as to whether the family advocate, who is being attached to the office of the Cape Provincial Division is in a position to judge a case from Kakamas, for example, or from any other rural district. Will the family advocate be able to judge such a case while he is based in the seat of a provincial division of the Supreme Court? Perhaps in future the family advocate should be linked to a particular district and not to the seat of the Supreme Court.

Mr Speaker, if I may take up the cudgels for the profession of which you yourself are a member, I think, in the rural areas in particular, that is in fact the attorney who has to deal with the problems surrounding the divorce, the parties involved and the children. It is right that the court, which is the upper guardian of minors, should be fully able to judge whether the best interests of the minors and dependants have been properly protected. This deficiency is being dealt with by the intervention of the family advocate and the family counsellor.

I am pleased to hear that this legislation is actually a step in the direction of possible further investigations into a family court, and so on. We have not in fact come to the end of the road with regard to the problems surrounding divorce and the care of minor children. It does seem that the family advocate, in terms of clause 4 of the Bill, can be charged by the court to investigate any other matter and to advise the court. He could possibly do this in terms of clause 4(2) as well. This is, however, the nearest the Bill comes to the idea of a mediator to bring about reconciliation, as exists in the French system. Research has been done on this in our country, too, and certain recommendations were made that investigations be instituted into the circumstances of the marriage, perhaps at a stage before divorce proceedings have been started. In my opinion there is still a major deficiency in our legislation with regard to the issue of a reconciliation between parties.

What is envisaged with this Bill is that the investigations will be carried out in the calm and relaxed atmosphere of the family advocate’s office and in this way more favourable results should be achieved as far as the children are concerned, but not as far as the parents are concerned. As I said, I still believe this is a deficiency in our legislation even though it does not perhaps fall completely within the province of the hon the Minister of Justice.

I have here in front of me the divorce figures for Whites in 1977,1980 and 1981. In 1980, 21 115 children were involved in 18 757 dissolved marriages. At that time more than 50% of divorces took place between persons in the 20 to 34 age group. The latest figures I have received—those for 1985—indicate that White divorces have levelled out slightly to 17 035 in which 20 316 children were involved. This is possibly a lower figure than that of the previous year. These are the figures for Whites only, in other words more than 20 000 White children lose one of their parents every year. With that it should be borne in mind that the marriages of such children might in their turn be at risk purely because they are from broken homes.

The hon the Minister mentioned on a previous occasion that socioeconomic factors, too, were involved which caused fluctuations. After the Second World War, for example, the divorce rate soared. However, even if one takes into account all the socioeconomic and other factors, it is imperative that our high divorce rate receive urgent attention. I am pleased the hon the Minister of National Health and Population Development is present for I believe this matters falls within his province. In my opinion it is absolutely essential that this matter be looked into, since we have one of the highest divorce rates in the world.

The hon the Minister referred to English Law and also to the Modern Law Review regarding the question of blame, which is supposed to have disappeared in the judgment of divorce cases. It does not have to be determined as in the case of a motor accident. It is, however, the case that blame remains a factor in the decision as to where the children can be placed after the divorce. Therefore, although blame does not play a role in the decision as to whether or not the marriage should be dissolved, it does have reasonable influence on who is given custody of the children. I am pleased the hon the Minister has given us the assurance in the past—and this is still his intention—that he will still be monitoring the whole situation and giving consideration to whether the criterion of irretrievable breakdown of a marriage really is sufficient for its dissolution.

The next question is how the family advocate will operate in practice, particularly in uncontested cases in which an agreement is proposed. I want to return to the provisions of the Bill itself. There are certain problems in connection with clause 6. The Association of Law Societies of Southern Africa indicated in its memorandum that delays as well as additional costs were possible, particularly if a case should be referred from the rural districts to the seat of the Supreme Court.

There are no time limits regarding the intervention of the family advocate in the proceedings. There are no time limits regarding the answering affidavits and the trial within the trial in respect of awarding custody of the children. Perhaps the hon the Minister could inform us as to whether he foresees the introduction of regulations dealing with temporal clauses and time limits so that cases of this nature are not unnecessarily delayed, and particularly so that further costs are not unnecessarily incurred although it is self-evident that, even though it would then take up more time, the best interests of the children in these cases deserve the most attention and the spotlight should therefore be focused primarily on them.

There is a second aspect to which the Association of Law Societies refers. It concerns a case to which the hon the Minister has no doubt also given his attention. I believe he will give this matter further attention in future. This is, namely, rather to call the family advocate a children’s friend. That is, after all, his actual function. He has to look after the interests of the children.

Furthermore, the qualifications required of the family counsellor are not specified in the Bill. The hon the Minister maintains that by not specifying this qualification, the public will become more involved. It is not quite clear to me in this case how these two things are connected. After all, the interests of the children are at stake. Therefore, it is, after all, desirable that this family counsellor should possess the highest possible qualifications. He should be in possession of at least a degree or diploma in sociology or psychology. This ought to be a prerequisite.

Having said that, it still appears to me that this legislation is such that it ought to be tested in practice. We also have to wait and see how it develops in practice. It could possibly be necessary to introduce further amendments in this connection in the future.

With these words I want to assure the hon the Minister that we in the Conservative Party support the legislation under discussion.

Mr Chairman, I am grateful for the support the hon member for Brakpan, on behalf of his party, pledged for the Bill under discussion. I agree with him when he says that the tremendously high divorce rate in our country is cause for great concern and that we on our part should constantly be devoting more and more attention to the matter. I therefore assure that the joint committee will continue to examine the divorce situation in our country very closely and will give attention to the question of whether a family court is necessary in South Africa.

The hon member for Brakpan went on to raise a technical point, namely that the legislation under discussion was passed by the joint committee before the last election. I just want to point out to him that a member of his party served on that committee. This member therefore had every opportunity to peruse all the evidence. Furthermore, I want to point out to him that I take it that he informed his caucus as to what took place there. I simply find it very strange that such a major change in standpoint could arise in that caucus that they are now insisting the matter be investigated once again.

Consequently, I should simply like to point out that the evidence is indeed available to hon members of the Conservative Party.

You think you are a big shot now that you have a seat again! [Interjections.]

As I shall indicate in a moment, many representations were addressed to this committee. It would therefore simply not be practical or realistic to expect all that evidence to be heard from the beginning.

Mr Chairman, this Bill is the product of a joint committee, as it is called, that was appointed in 1985 under the chairmanship of the hon member for Mossel Bay. For more than 18 months the committee held in-depth talks on this matter. Seventy-seven written representations, of which 14 were the written representations of judges, were submitted to the committee. Thirty-six witnesses, five of whom were judges, also gave oral evidence. I therefore want to take this opportunity to thank the hon member for Mossel Bay, even in his absence, for the very wise and patient leadership he provided. As a result of that, the measure under discussion was able to see the light of day. Furthermore, I should also like to take the opportunity at this stage to thank him for what he has done as first chairman of the Standing Committee on Justice. He made a very great contribution and we shall all miss him very much.

I should also like to take this opportunity to thank officials from the department for their input, and I want to refer, inter alia, to Advocates Rudman and Henegan, and also to Mr Nel, for the contributions they made. I then want to thank all persons and institutions for the oral and written representations they made. They contributed greatly to the creation of this legislation, and I believe it will also be of great help with further legislation that will arise from this.

The fact remains that children are the main losers in divorce actions. They are not responsible for the divorce but it upsets them and they are often tossed around between the parents. They are used by the parents to score points off each other and in addition are often used as a means of blackmail. It is true that the Supreme Court is a very reliable upper guardian of the children. I do not think there can be any criticism of the fact that the Supreme Court is extremely well qualified to make a decision on what is best for the children.

The problem is, however, that not all evidence is submitted promptly to the Supreme Court. This is the deficiency this measure addresses. It does so by providing the Supreme Court as upper guardian with a very strong aid or instrument to help it make the right ruling. This instrument is, namely, the family advocate who assists him in submitting the correct evidence to the upper guardian.

As has been mentioned, the deficiencies in the present system arise from the accusatorial system, and the Supreme Court is at present dependent to a large extent on the evidence of the parents as regards the children. This evidence, however, is not unprejudiced. It is often unreliable and as a result settlement proposals in respect of children are often simply accepted by the courts without being examined thoroughly. This is also often done too hastily simply to facilitate a divorce. Proof of these deficiencies—this is evidence that was presented to the committee—is, inter alia, that a large number of settlement proposals required further attention shortly after the divorce. This simply indicates that those settlement proposals did not receive proper attention during the divorce proceedings. Furthermore, evidence was also submitted that in Johannesburg one third of children found to be in need of care were the children of divorced parents. This serves simply to point out the urgency of this situation.

In important respects this Bill implements the proposals of the Hoexter Commission. The Hoexter Commission found that deficiencies existed in our accusatorial system and that legal representatives should be appointed to look after the interests of children. I should like to refer to page 509 of the Hoexter report where the following, inter alia, is said:

The Hoexter Commission then goes on to make two proposals, namely that in all divorce proceedings involving children, legal representatives should be appointed to see to the interests of these children and, further, that a children’s friend should be appointed, who would look after the interests of the children in general.

The committee examined these proposals and found them to be impractical at this stage. The committee therefore proposed that a family advocate be appointed to look after the interests of children in divorce actions and also in subsequent changes in orders regarding children. This person should be assisted by a family counsellor who should preferably be a social worker. The family advocate will perform his duty by instituting investigations at the request of the parties, and also on his own initiative after receiving permission from the court.

I want to suggest that the great advantage of this proposal is that the family advocate does not make his contribution only by means of a report to the court, but will also be able to appear in court on a basis equivalent to that of the other parties. He will also, for example, be able to cross-examine witnesses. It is most important for a child to have that independent authority behind him to see to his interests.

I should like to associate myself with the hon member for Brakpan, who said that this model contained many possibilities for extension. I believe the family advocate, once he has established himself, could later also be afforded the power to issue temporary orders in respect of children. He would have the same powers as, for example, the “master” in English law. Whereas the “master” has wider powers, the family advocate would have these powers in respect of children, and possibly later in matrimonial matters. In accepting this motion we are to a certain extent following the model and the designation of the family advocate in the Canadian province of British Columbia.

I am happy to support the Bill and look forward to its implementation.

Mr Chairman, it is quite often the law, as distinct from the attainment of justice, which prevails. Too often the proper implementation of the law results in justice and equity not being obtained at all. This is true of several branches of the law, and certainly of that pertaining to divorce.

Divorces are processed rapidly through our courts. If the papers appear to be in order, no dispute over any detail is apparent, and prima facie proper documentation and arrangements appear to have been made for minor children, few questions are asked, and the order is quickly granted. The defendant in an unopposed divorce action is seldom present, and the plaintiff mutters the standard answers to the standard questions.

Seldom if ever is the judge made aware of the real tensions and animosity which may have led to the destruction of a family unit. Hardly ever is a judge allowed to appreciate the respective positions of the man and the woman which led to the settlement which is put before him being entered into. A judge has no knowledge of the bargaining power of the respective parties, or of the pressures which have been exerted by one over the other or by either of them in order to finalise the settlement, thus avoiding protracted and expensive litigation. He is truly unaware of the factual situation relating to minor children born of the marriage and has little opportunity to test properly the suitability of the arrangements which have been made. The result of all this is that on many occasions orders are properly granted in terms of law, but neither justice nor the interests of the parties or of the minor children are served.

The role of the legislator can never be to enact foolproof legislation which will guarantee for all time a fair deal for every litigant, but the legislator can play a role in bringing the law closer to justice and in minimising the possibility of inequities arising. This Bill represents a further attempt to improve the law of divorce and to build protections for minors into our system. The creation of the post of family advocate is, in my view, an important step forward in ensuring the wellbeing of the innocent victims of divorce, namely the minor children born of the marriage.

It will be the task of the family advocate in suitable cases to advise the court on matters relating to the welfare of such children. In this task he may be assisted by a suitably qualified family counsellor, provision for whom is made in the Bill.

The family advocate will not investigate each and every divorce in which children are involved. He will become involved and conduct an investigation only in specific circumstances.

The first circumstance is where either of the parties to any divorce action has requested his intervention. This means that further protection is built in and is available to either litigant who might feel that they are being pressured into a settlement which is not in the best interests of their children.

The second circumstance is where the court of its own volition requests the family advocate to conduct an enquiry and to report. The third circumstance is where the family advocate, acting on information he may have received, applies to court for permission to conduct an inquiry.

The important point to note, however, is that once an inquiry by the family advocate has been commenced, a final order of divorce may not be granted until such time as the court has considered the report and the recommendations made by the family advocate.

I do not claim that this piece of legislation solves all the problems, but it is very much the product of the consensus of the Justice Standing Committee, which heard extensive evidence on the subject. I am of the opinion, though, that the provisions created herein, while not causing inordinate delays, will go a long way to closing the gap in divorce matters between the law and the provision of justice.

Accordingly, our party will support this legislation. [Interjections.]

Mr Chairman, it is both a pleasure and a special privilege for me to take my place in this House once again after a period of absence. I succeed Mr Gert van der Linde, an esteemed former member of this House. In his 25 years in public life, he really made his mark in the community he served. The voters of Port Elizabeth North honour him for that. I hope, therefore, that I shall be a worthy successor to him.

On behalf of this side of the House I want to thank the hon member for Sandton for supporting this Bill and for the positive contribution he has made. It is a reality in our society that divorce is not unavoidable. Ideally, the dissolution of marriages should be prohibited because of the disruption it causes. However, we are not that fortunate.

Divorce is normally a traumatic experience for the parties involved. It sometimes limits the ability of the parties to determine what is in the best interests of their children. The decision in regard to the fate of the children is perhaps the most important consequence of a divorce. One has to consider numerous factors when determining what, under the prevailing circumstances, is in the best interests of the children.

These factors include: The sex of the children; the fact that children of the same family should not be separated from each other unless it is absolutely essential; the ages of the children; the spiritual and emotional capacity of each of the parents; the physical facilities available to each parent after the divorce; the school and social circumstances of each case; the ability of each parent to discipline the children; the wishes of the children if they are big enough and independent enough; the working hours and the work circumstances of each parent; and the care of the children during those times of the day when the custodial parent is not present.

On the basis that one factor does not dominate another, these are all factors that are taken into account when one has to determine what is in the best interests of the children in cases of divorce. The object of this Bill is to try to provide an additional instrument or aid that will constantly ensure that the best interests of the children are served.

In by far the majority of cases the parents do consider thoroughly what, in their view, would be in the best interests of their children should they decide to go ahead with a divorce. They do not consider personal preferences and prejudices. Proper arrangements are made for the custody and control over their children, and for the parent who does not have custody over the children to have access to them. In practice our courts endorse these arrangements, and there are seldom problems afterwards.

Unfortunately, this marvellous understanding does not manifest itself in all areas. Even in those cases where the parents come to a mutual agreement regarding custody and control and then embody this agreement in detail in an deed of settlement, it sometimes happens that the one party unreasonably persuades the other to enter into the agreement, and the interests of the children are not considered at all. Contrary to this there are those cases in which the parents cannot reach an objective agreement regarding custody of and control over their minor children, because the one parent honestly believes that he or she is better able to exercise custody and control over the children than the other parent is. Then there are also those cases in which one party, purely out of vindictiveness, simply refuses to allow custody to be granted to the other party, regardless of the interests of the children. Parents sometimes also refuse to accept the advice of their legal counsel in this regard since the parent who has to forego custody regards it as poor advice which would result in his or her losing the case.

In those cases where the parties adopt a hard-hearted approach, the practice has developed that some agreement must at least be reached to the effect that the court must be approached with the request that the relevant department be instructed to prepare a welfare report in regard to the suitability or lack of it of each of the parents as far as custody and control over the minor children are concerned. Sometimes this procedure is frustrating, since pressure of work and other factors result in one’s having to wait a long time for the report. In some cases, however, time is of the essence and one cannot make use of this service, even if there is a definite need for it. Most of these reports are of a high quality, professionally speaking, and have undoubtedly resulted in priority being given to the promotion of the children’s welfare. The creation of the post of family advocate should lead to a more expeditious disposal of those cases in which his services are required, for in this way one can more quickly ensure legal security between the parties. Moreover, his position of neutrality with regard to the parents should result in the parties’ accepting his advice more readily.

In my opinion it is a sound principle that the parties are not obliged to accept the services of a family advocate, except in those cases where they have been requested by one of the parties, or by the court, on its own initiative, or by the court, on application by the family advocate. At this stage, therefore, the family advocate’s services are purely advisory, just like those of a social worker. This Bill does not, therefore, alter the common law position, and the Supreme Court remains the chief guardian of our minor children. In the final instance it is still the trial judge who has to decide, after having considered all the facts, including those submitted to him by the family advocate, what is in the beste interests of the children.

It is pleasing, too, to note that the family advocate has to possess certain qualities and a certain degree of experience which would make him eminently suitable to give the trial court sensible advice. The Divorce Act of 1979, which will also be amended by this Bill, is the product of the 1978 report of the Law Commission in regard to divorce law and matters incidental thereto. Perhaps the hon the Minister of Justice will consider requesting the Law Commission to monitor the practical operation of the Bill for a certain period. Thereafter the commission can report on whether or not this system of mediation through the family advocate has succeeded at all in improving the scheme in question.

The family advocate must be regarded as someone who is aiding the trial judge. In this regard his position is analogous to that of the curator ad litem. Besides this he is an officer of the court who, like any other legal representative, can offer evidence and cross question witnesses.

Since this Bill makes it possible for the best interests of the children to be served in cases of divorce, I support it gladly.

Mr Chairman, as we have already indicated, the CP supports this legislation. Before I turn to the legislation, I should like to mention, if you will allow me, Sir, that I feel particularly honoured to be delivering my first speech in this House while you are in the Chair.

I say that because in the past we as advocates also played a significant role, inter alia in the legislation you have before you today, and in which you yourself have a big share. It also pleases me to congratulate the hon the Minister of Agriculture—in his absence, unfortunately—on his being in the House again. I should like to express my special thanks to the hon Minister concerned—we opposed each other in the election—for the fine and pleasant way in which we could oppose each other. I am grateful to him for the honour he bestowed on me and also for the honourable way in which he conducted his election campaign. On the other hand, I think the voters of Bethal perhaps deserve to have two representatives in this House, as far as both quantity and quality are concerned.

When one discusses the Mediation in Certain Divorce Matters Bill, one thinks in the first place about the object of our divorce legislation. In my opinion it seeks to make provision for a marriage that has broken down to such an extent that it no longer exists—marriage in the true sense of the word, that is—to be dissolved in such a way that the least possible disruption is caused to the lives of the family members, and the interests of the minor children are properly taken care of. In this regard we believe that the Bill presently before the House is a step in the right direction, and I support it gladly.

I want to point out, however, that this Bill does not address the social problem. It merely addresses the juridical problem, the problem of how a divorce that is already pending must be handled. The legislation makes no provision at this stage in respect of the primary causes of divorce. In fact, the social problem is not being addressed at all.

The family advocate can act only after divorce proceedings have been instituted. In other words, he can act only after the parties have already found themselves in a confrontation situation that has resulted in at least one of the parties having to issue a summons.

The other instance in which he can intervene is when an amendment to an existing divorce order is requested, in other words when the divorce is already a fait accompli.

When one considers that there were 17 000 divorces during 1985, which affected 20 000 children one has to remember that in these circumstances in which the family advocate may now intervene he may do so only at the request of one of the parties, or at the request of the court itself, or in certain cases in which he applies to the court for an order that will enable him to intervene. When one deals with 17 000 divorce cases per year, one inevitably finds that he will intervene in those cases in which disputes have arisen and one of the parties has requested him to intervene, or when the dispute is of such a serious nature that the court has requested him to intervene, or because he himself, owing to information he has received, becomes aware of a dispute and then himself makes an application to intervene.

In practice we find that about 1% of the divorce cases that come before the courts are contested divorces in the sense that they proceed to a trial. These are cases in which the attorneys could not settle the matter at some earlier stage, or the matter could not even be settled in court, or the parties did not come to an initial agreement before the summons for divorce was issued. Unfortunately, our law has not yet begun to address the social problems that arise out of uncontested cases and those cases in which settlements are reached. I understand, however, from what other speakers, including the hon the Minister, have said, that continuous attention will be given to this matter and that the specific social problem will be addressed.

One would prefer the functions of the third party to such a matter, namely the family counsellor, to be extended so that he could become involved in the case before matters had gone as far as the issuing of a summons. One would also like to see the establishment of a body, such as a marriage bureau, that people could telephone, asking for help in solving their marital problems. It could be a body similar to the one that people who are contemplating suicide can turn to in moments of strain and stress. I believe that we could achieve greater success in this regard if we tried to save the marriage before divorce proceedings were instituted.

Marriage is surely one of the most important aspects of national life. The same applies to the education of children. When one thinks about this today, one realises that at both school and tertiary level very little guidance is actually given on either of these two aspects of life. Making a success of a marriage is no easy task, and I would not want to wish an unhappy marriage upon anyone. We all know what hell a happy marriage can be, so how must it still feel to be caught up in an unhappy marriage? I am appealing, therefore, for attention to be given to the question of whether guidance can be given on this aspect in the schools. One is not given any guidance in this regard, except in the parental home. Therefore a child who comes from a broken home is at a disadvantage: He has not grown up in a family environment and so he has never seen how a happy family, seen as a whole, functions, and cannot draw on that experience for his own future.

As far as the function of the court is concerned, we must take into account that the judge can make a decision only on the grounds of the evidence given before him. He must settle the dispute and dispense justice in respect of it. As such he does not fulfil the role of a conciliator. That is the role of someone outside the court. In my opinion, therefore, it is a great step forward that the family advocate can play a part in the preliminary litigation, for in this way the correct facts are brought before the court and the judge is able to come to the correct conclusion in accordance with the facts and the application of the law, as he is obliged to do.

For this reason we on this side of the House are pleased to support the legislation the hon the Minister has introduced.

Mr Chairman, it is a great honour and privilege for me to be given the opportunity of addressing the hon members of this House for the first time. The moment is all the more significant since it is the first time in history that a member for Umbilo has risen to speak on this side of the House. I should also mention that, before the election of 6 May, it was in 1966 that an NP candidate last stood in Umbilo.

On behalf of this side of the House, I should like to thank the hon member for Bethal for his support for this Bill and congratulate him on his maiden speech.

Regarding the Bill under discussion, I wish to say at the outset that I feel very strongly about the children involved in divorce. During my career as an attorney I frequently had occasion to deal with such children. I am profoundly aware of the serious problems it entails for them.

†I think it is very relevant to have a close look at the statistics regarding divorces and the children involved. Certain statistics have already been mentioned, but I should like to mention further statistics. In 1985, as was correctly pointed out, 17 035 White marriages ended in divorce, and 20 316 children were caught in the middle of these family traumas. Divorces granted to Coloured people numbered 3 649, involving 6 362 children. To Indians 802 divorces were granted, involving 1 263 children. The children involved in these divorces total a shocking 27 941, excluding Blacks.

*The average duration of White marriages in 1985 was 7,1 years, while among Coloured people it was 8,9 years and among Asians 7,9 years. An average of 1,2 minor children were involved in each divorce among Whites in 1985, while the average in Coloured divorces was 1,7 and in Asian divorces 1,6.

It is also interesting to take note of the figures for the decade from 1975 to 1984. In that decade 179 206 minor children were affected by divorces. That was 80 569 more than in the previous decade. As far as I am aware, the official national figures for 1986 are not yet known. According to a report in The Star of 2 March 1987, however, 6 300 divorces were granted in the Rand Supreme Court in 1986. That was reportedly 500 more than in 1985. If this was a countrywide tendency, the figures for 1986 could be even more shocking than than those for 1985 to which I have already referred.

†In the whole drama of divorce, facts and feelings are nowhere more uncertain or more dangerously confused than when children are involved. Although people of all ages need the affection and friendly sustained support of others, children in particular need the help of adults in a time of crisis. The almost absolute dependence of a child on adult care is well understood by children, and contributes to their insecurity when the adults around them are troubled. Children experience a heightened sense of their own vulnerability at a time of divorce. Their assurance of continued protection, which is implicit in an intact family, has been breached. They confront a world which suddenly appears to have become less reliable, less predictable, and less likely, in their view, to provide for their needs and their expectations.

It has been found that no parent can look dispassionately at his or her own child. It is also recognised that in this situation, where passions run high, children would be at risk if their future were left entirely in the hands of their parents. It is more often the children in divorcing families, rather than the adults, who are expected to work through a wide range of issues on their own.

In an exploratory study in America it was discovered that only about 25% of the children in divorcing families had received any outside help during their parents’ divorce. The parents had sought help for themselves at a much higher rate, with over 90% seeking at least one outside support source and many using several sources.

*The distress of the child is often intensified by the immature behaviour of the parents. The child becomes the helpless victim of their hurt feelings. The parents sometimes try to sabotage each other through the child. Quite often the child is antagonised against the other party, and each goes out of his or her way to buy the child’s favour. The most important effect of a divorce on the child is the identity crisis that develops. The child finds itself in a situation of insecurity, homelessness and vulnerability, which creates in it an inner feeling of uncertainty. He does not have the insight to grasp the nature of the marriage conflict. He fears that his parents do not love him, and that he will be rejected by one or both parents.

As has been indicated, about 98% of all divorce cases are ultimately undefended cases. The supervision, custody and maintenance of the minor children are arranged by agreement of the parties, and it is virtually impossible for the court genuinely to satisfy itself that the arrangements made in such an agreement are in fact in the best interests of the minor children. The problem with such agreements is that during a divorce, the parties find it extremely difficult to look objectively at, among other things, the questions of supervision, custody and the maintenance of their minor children. The agreements often reflect the parties’ own interests and not necessarily those of their children.

The disruptive effect of a divorce on the children of a broken marriage cannot, unfortunately, be avoided, but with the help of the family advocate, the family counsellor and the procedures that are being created in the Bill under discussion, the interests of the children can be catered for more satisfactorily than is the case under the present system. I therefore support the proposed Bill.

†Sir, since this is my maiden speech, you will allow me to thank the voters in the constituency of Umbilo for the trust they have placed in me and in the NP. I wish to state categorically that I will, at all times, endeavour to serve their interests to the best of my ability. There are many senior citizens in old-age homes in my constituency and I also wish to assure them that I will take a particular interest in their needs and in the problems they may have.

*I should like to close by saying that I am thoroughly aware of the great responsibility of serving in this House, especially in the times in which we are living. It is therefore my prayer that I shall receive the wisdom to equip me, in the best interests of our fatherland and all its people, to make a positive contribution towards the solution of the current problems of our country.

Mr Chairman, may I at the outset congratulate the hon member for Umbilo on his maiden speech. Like he other hon members who spoke before him on this Bill, he has shown a very real understanding of what I regard as a very important aspect of our law and of the social problems we have to deal with in this country.

I would also like to express my pleasure at being able to address you, Mr Chairman, in my maiden speech on what I regard as a very important subject. It is quite a nice relief to be able to speak on something which is meaningful rather than having to mouth platitudes about the birds and the bees or some other non-contentious subject.

The legislation before us is very much in the spirit of the progressive trend in matrimonial and family legislation, and for reasons which will appear from my address I fully support this Bill. Most of the recent improvements to our law in the field of matrimonial and children’s rights have been by way of amendments to the substantive law, not to the procedural law which this Bill essentially deals with. Of these improvements the most notable are firstly the abolition of the guilt principle and the substitution of the irretrievable breakdown of the marriage as basis or the dissolution of the marriage; secondly, the Matrimonial Property Act of 1984, which introduced the long-overdue principle of equal partnership in marriage, both in terms of property rights and the right to control that property.

The legislation before us is significant as the first fundamental departure from the outdated procedure relating to divorce. In introducing this Bill the hon the Minister has quite rightly emphasised the shortcomings of the adversary system of litigation as a procedure through which to resolve matrimonial disputes. The hon member for Sandton has drawn attention to the inherent weakness in the process of divorce, particularly in regard to undefended actions where the background and the circumstances leading to the breakdown of the marriage are seldom presented to the court for scrutiny and monitoring before granting a final decree of divorce. In the majority of cases the settlement which is arrived at between the two consenting adults does cater adequately for their respective needs, and the children of the marriage are usually well provided for.

As the hon member for Port Elizabeth North pointed out, most parents, fortunately, do retain their protective interest in their children after divorce and certainly in most cases no problems are experienced with parents being prepared to look after and provide for their children.

Unfortunately, this is not always the case. Ignorance on the part of one or both of the parties, poor legal representation and, more importantly, misconceptions as to the purpose of a divorce settlement often result in wholly inadequate or inappropriate arrangements for life after divorce. Much as we welcome the introduction of this legislation which provides for the protection of children in a suit perceived by our procedural law as being between their parents, this law can only be regarded as an interim measure and the forerunner to the Family Court Bill which, we are told, will follow.

In the same way that the principle of only granting a divorce where the marriage has broken down irretrievably is often circumvented by the collusion of the parties, I fear that the purpose of the present legislation could in practice also be frustrated. I say this because only in those cases where the children are patently being ignored or where one of the parents or both of the parents consent to his intervention will the family advocate actually be alerted to the situation and will he intervene or will the court intervene. However, he has a very little scope or investigator’s powers to delve into the background of the hundreds of undefended divorce cases which each day pass through our courts in almost conveyor belt fashion. The fault does not lie with this Bill—and I am not attempting to criticise the Bill; I believe that it is very much in order—but rather with the procedural structure of our divorce courts within which this law will have to be applied.

Until the entire structure of divorce procedure is revised, the task of the family advocate will be exceedingly difficult and, I am afraid, limited.

The essential problem lies in the fact that our procedural system for obtaining a divorce and, unfortunately, very often the attitude and training of many of our practitioners in regulating the relationships between the parties and their children, have not kept pace with the progressive developments in our substantive law—I have referred to the very significant developments in substantive law. The very process of suing for divorce— actually issuing a summons and obtaining specific relief as in a commercial transaction—may have been appropriate when one party’s right to divorce, maintenance and property settlement depended on the other party’s guilt. This is certainly no longer the case, however, and it is entirely inappropriate in terms of the modern concept of divorce. I think I am correct in saying the hon member for Bethal did refer to this aspect when he indicated that to sue for divorce is clearly the wrong way to set this process in motion. One likes to think that a woman today does not approach an attorney to sue her husband for whatever she can skin him for. Nor does a husband attempt to get out of a marriage with what used to be regarded as his assets.

If we are to be guided by the developments in the substantive law as laid down in the current Divorce, Matrimonial Affairs and Matrimonial Property Acts, divorce proceedings should, I submit, first of all entail a period of consultation and counselling during which the prospects of restoring a marriage relationship should be explored and, if possible, pursued. Only then, when it is clear that the marriage has broken down irretrievably, should the enquiry and negotiations be directed not towards the dissolution of the marriage—by that stage that will have become an unavoidable fact—but towards the conclusion of an agreement which will provide, within the means of the parties, a modus vivendi, first of all for the children, and then for the unfortunate parents.

While these proceedings can never and should never be removed entirely from the jurisdiction of our courts, there can be no doubt that divorce and its resolution is as much a social problem requiring expertise in the field of social sciences as it is a strictly legal function. The concept of the family court is by no means new. I am not suggesting something now which is my own idea; it is very much part and parcel of the Hoexter Commission’s recommendations. I really believe that, despite the difficulties the joint committee appears to be having in giving life to this concept, something has to be done about introducing the concept of the family court as soon as possible. More importantly, however, I believe that the court will not function as a family court and will not function as a court to resolve family and matrimonial problems unless our legal profession fits in with the concept of the family court to resolve family problems.

If an attorney, as is the case, has to be trained, examined and admitted as a conveyancer before he is allowed to put his signature to a deed of transfer, there is all the more reason why the profession should develop, train and qualify divorce consultants and practitioners.

The Bill now before the House is a first step towards making a significant breakthrough in our procedural law in this vital area of family law, and I fully support it.

Mr Chairman, please allow me the opportunity of thanking the hon member for Groote Schuur for the maiden speech he made here. I think he acquitted himself well of his task. [Interjections.]

Furthermore, it is a privilege for me to make my contribution today, in this highest Chamber in the country, towards ensuring the future of the Whites. As someone who comes from a mining constituency and knows the mineworkers well, it is a privilege for me to act on behalf of the voters of Carletonville. I should also like to mention that Carletonville probably has more mines than any other constituency. One of the deepest as well as one of the richest mines in that area is in Carletonville. The mines in this constituency provide thousands of people with employment. I also wish to mention to you—if I may make my contribution in regard to this legislation— that it is disquieting to see how many divorces take place annually. You have already heard the figures, and I am not going to repeat them. I should like to ask the hon the Minister this afternoon to remember that prevention is always better than cure. We feel that something more concrete should be done before one of the parties even goes so far as to instruct an attorney to issue a summons. We also feel that there is, in this respect in particular, a great deficiency, and we ask the hon the Minister to look into the matter. What we have in mind, as has already been said, is a compulsory school subject to make children aware of the heartbreaking consequences of a divorce. If children are prepared for it, they can deal with it more effectively.

You must remember that once divorce proceedings have been instituted, a feeling of hostility already exists between the two parties involved. A reasonable, decent agreement to protect the childrens’ interests cannot really be negotiated then, except in isolated cases. I feel that an attorney should not be allowed to take on such a case before the parents intending to divorce have consulted a marriage guidance counsellor or another expert in the field. The attorney should then be shown a certificate to prove that they have done everything in their power to prevent a divorce. If these things are done, I am sure that a large number of the many divorces can be prevented.

How many family murders are committed annually because one party or the other does not want to institute divorce proceedings? He or she does not want to make the children go through a divorce and all the concomitant suffering. The “easiest” way out is therefore to blot out the family. That is why we are so pleased that the hon the Minister is trying to make divorce cases as difficult as possible, and to solve them as swiftly as possible.

Mr Chairman, this has been a very interesting and very enlightening debate. It was enlightening because so many meritorious maiden speeches were made and there is obviously a great deal of nascent expertise in this House, with an early identification of problems and with a very clear demonstration of an ability to make appreciable contributions in this House, as well as on the committees. As a general observation I can say it was not merely a debate of maiden speeches, occasioned by a kind of open sesame that enabled hon members to enter the fray. The maiden speeches were instead aimed at making real contributions, and they were successful in this aim. I shall refer to them during the course of my speech.

The hon member for Brakpan posed so many interesting questions and put forward such an interesting argument on the application of the Bill that I shall have to devote quite a lot of time to him. I ask him therefore to be satisfied if I return to him at the end.

I should like to welcome the hon member for Pietermaritzburg-North as the chief spokesman on Justice on the NP side. He has always been a pillar of strength as far as Justice matters are concerned, and his consistent contributions over the years have earned him his spurs. I am convinced that the hon member will assert himself very thoroughly in the planning of any legislation which this department will deal with. I want to associate myself with what he said about his predecessor, the hon member for Mossel Bay, who has been called to other service. I hope it is not considered to be higher service! He is not present in the House at the moment, but I do think the Justice group should write him a little note.

I want to thank the hon member sincerely for his support. His evidence was very clear and to the point. It indicated that the standing committee system works, because the committee came forward with a Bill, one which would probably not have been possible to introduce so soon otherwise. Because the Bill could be thrashed out on that level on the committee, it was possible for us to come forward with innovations quite soon. Where we encountered obstacles, for example as far as the family court is concerned, a need was identified and the committee not only levelled criticism, but suggested a solution. In my opinion this proves that the system works.

†I should like to thank the hon member for Sandton for his support. He also stressed the issue of minor children who are very often the victims of divorces which are, shall we say, too swiftly perpetrated—I am not reflecting on the courts. I think our efforts in this regard—if they are successful—should perhaps indicate an avenue which the family court may follow should the joint se committee eventually recommend a Bill to that effect.

*I want to welcome the hon member for Port Elizabeth North back to this House. In the past he has always made a sturdy contribution, and he is successor to one of our valuable members. I am certain that, as in the past, he will make a thorough contribution.

He asked whether we could not instruct the Law Commission to monitor the application of the Bill or the results in practice. The status of the Law Commission has grown to such an extent, and it has with so much finesse quietly effected changes in our substantive law in particular, that I can quite understand the hon member wanting to involve the Law Commission in adjective law, etc, as well. In practice, however, we are receiving so many requests these days for matters to be submitted to the Law Commission that we must discipline ourselves so as not to burden that expert and efficient body too heavily. If we do not do so, that body could come to a standstill because it is active in too many spheres with which it does perhaps have areas of contact, but which do not have any direct bearing on it.

Consequently I want to suggest that the Department of Justice itself is extremely well geared to undertake monitoring of this nature. What we do need—incidentally the Hoexter Commission recommended this—is the services of a statistician who can, by way of analysis, reconcile practice and theory for us, and who can also point out needs to us, and improve efficiency. I am delighted that the hon member raised this point. We shall definitely give attention to it. However, I think the task is one for the department to undertake. If hon members can therefore argue persuasively enough that the hon the Minister of Finance should let me have the necessary money for that post, we shall undertake this essential task with beneficial results.

The hon member for Bethal made a very neat contribution here. Bethal and Delmas are neighbouring constituencies. With them we can hold discussions about things such as maize, etc. My bench-fellow, the hon the Minister of Agriculture, is in any event still the uncrowned ruler in that part of the world. Hon members must therefore pardon me when I so easily confuse places such as Bethal, Delmas and Middleburg with one another.

He has lost his crown! [Interjections.]

The fact remains, however, that the hon member made an excellent contribution. I could tell very clearly from it where his interests lay. What it amounts to in affect is that the hon the Minister of Agriculture will continue to look after the interests of the farmers, while that hon member will look after that juridical interests. I think this is a very good, an excellent arrangement. I think the hon member stated his case very well. I shall convey the message to the hon the Minister of Agriculture, and also inform him that he was referred to here with great appreciation. I shall also, on behalf of the hon the Minister, express my appreciation for those statements which the hon member made about him.

The hon member for Bethal raised quite a few interesting and sound points here. Quite a number of those same points were also raised by the hon member for Brakpan. However, the hon member for Bethal touched upon one crucial point which, I think, deserves emphasis. What it amounted to was that whether it is ultimately the family court which has to fulfil a mediatory or reconciliatory activity in regard to the married couple, or whether the main concern is the interests of the children—eventually even in the family court as well—it does not really matter because here, where the concern is primarily and exclusively the interests of the children, it can only be successful if that reconciliation or mediation takes place before the court case begins.

I want to draw attention to paragraph 7.3.1.7 of the Hoexter Commission report in which the following is said in respect of this hostile attitude which prevails in the court, where people want to get things over and done with—and then one can understand that the interests of the children can suffer in the heat of the fray—

With the exception of the last point where one, so it seems to me, has marriages in which people are fortunate enough to have a large estate and the distribution of assets ultimately has to be settled in the court itself, these cases can all for the most part be settled before the actual court case.

I think the hon member put his finger on the condition for the successful implementation of this Bill, namely that the action must take place before the trial. The hon member also referred to the fact that we are addressing the juridical, but not the contributive causes. The hon member for Carletonville also associated himself with this point.

I am not entirely satisfied that we are addressing only the juridical aspects here. If one examines the potential inherent in the family advocate and the family adviser, we shall also be dealing with the socio-economic aspects here, admittedly not by way of prevention—if that is what the hon member had in mind—but by way of mediation. However, the socio-economic circumstances of the children will also be taken into consideration. Mr Justice Van Dykhorst, for example, gave evidence in regard to the other Bill and told a very interesting anecdote of how children were ultimately sacrificed, simply because the successful party in the divorce case did not have proper accommodation. I believe that with a little finesse it will in fact be possible to deal with such a situation.

The hon member raised the point that a summons should already have been issued, or the divorce should already have been finalized. The issue now is an amendment to a maintenance order, or an order of supervision and control and so on, before the court can give attention to this matter again, namely by instructing the advocate to give attention to the children. The hon member is therefore saying that the family advocate intervenes only in the second place if he has received information in regard to a specific family or set of circumstances before he can apply to become involved. I am not in complete agreement with that, and I shall explain why. Read into clause 4 (1) is a reference. It is subtle, but it is there.The courts, in their capacity of supreme guardian of the children, will have to keep a watchful eye on the situation. This is implicit here, and in my opinion it creates new responsibilities for the judiciary. I want to draw hon members’ attention to the fact that this is the case.

As far as activation in this matter is concerned, I therefore feel that we are creating a new world of responsibilities and a new social involvement in respect of children. If I present the picture as I think it can develop, the hon member will understand precisely what I am talking about, but we nevertheless agree with what he said. I think that he, too, made a neat contribution, and I appreciate the hon member’s humour, inter alia in regard to his happy marriage. We did not miss the significance of what he said.

†The hon member for Groote Schuur treated us to a speech which was essentially an analysis of the circumstances that surround our divorce court proceedings today, and it was evident that he is no layman and that we can expect some valuable contributions from him in future.

He underscored the issue of procedure and suggested that, while we have amended and improved our substantive law and attended to the rights and privileges of the married woman, we have not addressed our procedural ailments.

For this very purpose we have brought the Rules Board into being. This board will be tasked with dealing with immediate ailments, identifying immediate problems and finalising long outstanding recommendations of commissions such as the Galgut Commission, the Hoexter Commission and the Viviers Commission. We have available these various proposals that will be dealt with expeditiously in the near future. Undoubtedly, the issue of divorce will also benefit from the improvement brought about by procedure alignment in general. Divorce related procedure may improve.

The hon member also emphasises the fact that the mere institution of an inquiry on the part of the family advocate opens the possibility for a new procedure. The hon member is correct.

The Bill makes provision for the Minister to make regulations as to the procedure to be followed in relation to the institution of an inquiry. As the Minister concerned, I have to satisfy myself on the question whether the regulations are broad enough to cover the conduct of an inquiry. I have asked my advisers to look very swiftly into this matter so that, if necessary, I may return to the issue. This provision creates the possibility of the inquisitorial procedure to be followed.

It also falls within the ambit of the Rules Board and we shall have to decide whether we are going to pre-empt the jurisdiction of that board by asking them to refer this issue to a special committee or whether we ourselves are going to deal with it, which I would like to do. Nevertheless, we have identified possibilities.

Finally, the hon member made the point that attorneys should be trained to attend specifically to the adjudication of divorce matters. I think that when it comes to substantive law they are properly trained. I have no doubt that they are also trained in the adversary system and the same applies to counsel. At the same time, if we are going to innovate in this country, we shall have to ask the professions to become sensitive to innovation and to discard the unnecessary. In that way, we shall be able to serve the public much better.

*The hon member for Carletonville let his voice be heard in this House on this subject, and quite rightly so. We are concerned here with prevention and the fate of the children. However, I should like to add something to all the unpleasant statistics we heard today. The following evidence was given in reply to a question from the chairman to one of the witnesses on the joint committee:

I want to tell the hon member for Carletonville that the Government and Parliament are continually being prescribed to as to what they must do. Nowhere, however, has there been any effective action on the part of the public to address the socio-economic circumstances preceding divorces, or the fate of children.

If there are any such activities—we know there are many—they are obviously not effective enough. The evidence for that is here. These problems are simply not identified to a sufficient extent and in time. I think that is the reason for the hon member’s appeal that this problem should rather be approached in a preventative than a curative way. This is outside the ambit of the Department of Justice, but I want to say at once that I am not running away from the problem. It is our joint responsibility—the responsibility of the Government, of the hon member and also of the public. I think that here, too, we must think innovatively.

I am convinced that in future the hon member’s speeches will be as calm and peaceful as the one he made this afternoon.

They are afraid of you, Arrie! [Interjections.]

We are convinced that the hon member, in his maiden speech, gave an indication of the nature of his future style. I want to congratulate him very sincerely on it.

That brings me to the hon member for Brakpan. I want to tell him at once that the Bill is an interim measure, and we must therefore confess at once that we would have preferred to have come forward with a complete package, with a total solution. It is unfortunately the case that the means, the time and the ability to find that final solution is not always there. Consequently we had to come forward with an interim measure and therefore we prefer to confine ourselves to our children, who are our main concern. The hon member also said that we should in future consider other legislation, but that in the meanwhile he accepted this Bill, and I appreciate that.

I want to ask the hon member to allow me to give him a kind of picture of how it can work in practice. The Bill provides for the appointment of the family advocate. He must have specific powers which will enable him to act in court. It must therefore be possible for him to be admitted and to practise as an advocate, for which he must have an LL B degree. What we therefore have in mind is a highly qualified person. The Bill makes provision for us to have one or more such people per division, and to determine the conditions of service of the family counsellor by regulation.

Hon members will see in paragraph (e) of clause 5(1) that the Minister is also entitled to make a regulation in respect of “the appointment, powers and duties of one or more committees to advise the Minister regarding the appointment, powers and duties of family counsellors.” In other words, what we are envisaging here, and the potential we have embodied in this, is that the Minister will appoint a committee to advise him in respect of every division. On what will the committee advise him? It will advise him on the appointment, powers and duties of the family counsellors, and read in conjunction with the preceding, as far as conditions of service are concerned, our law adviser tells me that it is also a tacit provision that we can tell the family counsellors that these are their conditions of service but also their list of duties. I think the hon member will concede at once that that answers one of his questions.

The hon member then asked me a question, but I do not know whether he was talking about Pofadder or Onseepkans.

Kakamas.

Yes, Kakamas. The hon member then spoke about Kakamas, and asked what the position would be if the family advocate was here in Cape Town, and a problem arose with the children in Kakamas. That problem can never arise in the present dispensation, Kakamas does not fall within the area of jurisdiction of Cape Town. It falls within the area of jurisdiction of the Northern Cape, Kimberley. In other words, the problem is drawn closer.

This family advocate is going to be assisted by family counsellors, however, and nowhere do we say that they must all be accommodated with him in the same office. It is possible for family counsellors to be appointed on a regional basis. We are going to remunerate them, and of course we are going to consider the Exchequer. However, we can make appointments on a regional basis and we can allow the family counsellors to serve a specific region on a circuit basis. These are all possibilities.

What it amounts to is that we can appoint a family counsellor in Onseepkans, in Pofadder and all those places. The committee could advise me to do so, but what is more, the committee can also advise us concerning the individual who is available. They know their people. They know the people in Onseepkans and they know whether there is not perhaps a qualified social worker, married to a farmer, or whether she is available. These are all facts we can establish. In the country at present there are approximately 500 registered social workers.

I can now indicate that there was evidence with reagard to the family court that there were insufficient social workers. This made the committee and I feel that we should make provision here for those areas and regions in which there are not enough social workers. Our ideal, however, is still that they should be thus qualified. I gave all the organisations who liaised with us on this matter afterwards the assurance that this was still the ideal.

One of the hon members, however, asked what would happen if there was an attorney, and he did not have the qualifications a social worker should have. I cannot see why we cannot ask an attorney, skilled in family matters, to undertake the task in Onseepkans. In the larger centres this will obviously not be necessary, because I refuse to believe that all the dozens of wonderful social workers, who have completed their studies every year over a period of many years, who have been good marriage partners and whose children are now grown up, are not going to be available. It is that major source that I think we should draw on. I make so bold as to say that I found in the evidence, although it was not all that clearly apparent, that this could be the solution. I am referring here to public involvement. One of the hon members asked me what I meant by public involvement.

By this I mean that we can do it in this way. We have a wonderful example of how it can work in practice. When we wanted to appoint the small claims court, we encountered quite a number of difficulties. We brought the small claims court to the public. We established a small claims court committee in each centre, and asked this committee to nominate the panel of commissioners for us. They did so, and the system works. We all know that it works. Consequently it can also work here. It will depend on the committees we are going to appoint in each division. Consequently the way matters are going to turn out depends mainly on their advice, etc.

I concede at once to the hon member for Brakpan, however, that we must make certain that it succeeds. In that respect I shall allow myself to be guided by departmental and other advice. At this stage it seems to me we should first consider launching one or two pilot projects, to establish where the snags are, and whether it is necessary, as the hon member said, to come back and effect amendments. This is something I do not like doing. We try to plan things in advance and to rectify matters before the time. However, I know that it can be dealt with in this way.

As regards the whole question of delays, I want to point out that one cannot have one’s cake and eat it. If we bear the interests of the children in mind, we shall have to absorb a moderate delay. I am realistic about this. However, I think it should be our ideal to dispose of adjudication as quickly as possible. We shall have to accept a moderate delay at the outset. I think everyone expects this. But one parties deliberately ensure that this instrument is conducive to delays when children are involved, there is always the remedy of costs.

Although our courts are not perhaps applying it sufficiently, there is always the remedy of an order of costs against such a party. We shall take note of this last essential point the hon member raised, and we shall certainly keep a watchful eye on the situation in future. I hope I have not omitted anyone. With this I now suggest that we consider the Second Reading to have been disposed of.

Question agreed to.

Bill read a second time.

Mr Speaker, I move:

In terms of section 7 of the Magistrates’ Courts Act, 1944, a summons, which includes a return of service, is with certain exceptions filed with the Clerk of the Court. The then Rules Board for Magistrates’ Courts suggested that section 7 be amended to make provision for a summons to be preserved by the party who caused it to be issued, or his attorney.

This proposed procedure has been in operation at the magistrates’ office in Pretoria on a trial basis for a number of years now and appears to be very successful. It saves precious time, storage space, costs and manpower.

With the support of the attorneys’ profession which, to a large extent, will be affected by the new procedure, clause 2 makes provision for a summons to be preserved by the party who caused it to be issued, or his attorney.

The Small Claims Courts Act, 1984, was amended in 1986 to enable the Minister to adjust the monetary limit of jurisdiction of this court by means of a notice in the Gazette. In the course of the Second Reading speech in the House of Delegates on 17 June 1986 regarding this amendment, I informed hon members that I was considering proposing that the Magistrates’ Courts Act, 1944, be amended in a similar manner. This will enable me to consider the monetary limit of jurisdiction of all the courts simultaneously and to adjust it on a regular and balanced basis in accordance with the rate of inflation and in accordance with demand. The amendments in clauses 3, 4, 5 (a), 7 and 8 give effect to this proposal.

Amendments closely linked to those mentioned above are contained in clauses 5 (b) and 9.

On the transfer of an action from a magistrates’ court to a provincial or local division of the Supreme Court of South Africa, the applicant shall furnish such security as the court may determine, as well as a further amount of at least R200 for costs already incurred or which may yet be incurred. In clause 5 (b) it is proposed that the Minister of Justice may also adjust such further amount from time to time by notice in the Gazette.

In clause 9 it is proposed that the punitive jurisdiction of the lower courts relating to fines may also be adjusted along similar lines. The punitive jurisdiction relating to fines is adjusted regularly by legislation in order to keep abreast of the devaluation of the monetary unit. In future I shall be able to examine such punitive jurisdiction regularly without undue cost.

I do, however, once again wish to give all interested parties the assurance that any adjustments of the courts’ monetary and punitive jurisdiction will be done after due consultation and that the representations of parties who might have an interest will be very carefully considered.

I also wish to take this opportunity of broaching another matter in this regard. There has, in the recent past, been frequent mention of procedural reform or renewal. The Hoexter Commission found that in the South African judicature there was a real need for simplification of procedures in our courts. At the same time the commission emphasised, however, that by so doing it was not suggesting that the existing procedures ought to be thrown overboard without further ado, but that in conjunction with the existing courts there was room for reform and that the lower courts, rather than the Supreme Court, were suitable as a testing ground. When I announced the Government’s viewpoint regarding the recommendations of the Hoexter Commission I said, amongst other things, that the accessibility of the courts was a matter of great concern to the Government, and I therefore attach a high priority to positive steps being taken to limit the costs of litigation as much as possible.

Over the years, the government has, through various steps, endorsed the seriousness with which it regards this undertaking. Thus several recommendations of the Hoexter Commission which have brought about far-reaching changes in court procedures have, amongst others, been implemented. The most recent successful steps in this regard involve the establishment of the small claims courts; the commencement of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), on 20 February 1987; and the appointment of the members of the Rules Board. The success of the small claims courts hardly requires further elaboration and the rules board is expected to be functioning shortly.

In conclusion I wish to refer to Rule 12 of the Rules of the Magistrates’ Courts. The rules provide that a judgment by default may be granted by the clerk of the court. At present there is uncertainty as to whether such judgment by default can, in all cases, be regarded as a judgment of the court. If not, problems are foreseen, especially in the application of execution procedures. Although the government law advisers are of the opinion that such judgments are indeed judgments of the court, they nevertheless recommend that the Act be accordingly amended so as to eliminate any uncertainty. In clause 6 it is consequently proposed that a new section 58A be inserted in the Act which provides that a judgment by default which is entered by the clerk of the court shall be deemed to be a judgment of the court.

*Mr Chairman, I am probably the first Minister on this side of the House who has an opportunity to congratulate you sincerely on the position you occupy. Your stature and impartiality are well-known and we wish you every success in you position.

†While we are on the topic of the Hoexter Commission, I think it is also appropriate that I pay tribute today to my colleague in the Cabinet, the hon the Minister in the State President’s Office, who actually initiated and launched the Hoexter Commission. He drafted his terms of reference. I think it is only proper that we should say today that his efforts are bearing fruit of no small significance.

Mr Chairman, I should like to associate myself with the hon the Minister in congratulating you, on behalf of this side of the House, on your appointment and on the fact that you are now occupying the Chair. We are sure that you will do a very good job of impartially maintaining the proper order in this House. If there are some hon members who become a little difficult, you will have to take firm steps against them. [Interjections.]

In regard to the Hoexter Commission I should also like to refer to the hon the Minister in the State President’s Office and tell him that we share in the thoughts expressed by the hon the Minister of Justice concerning the good work done by the hon the Minister in this regard.

The CP, as the Official Opposition, is particularly proud of the legal component within its ranks. Of the 23 hon members seated here, 11 members are from the legal profession. We have five advocates on this side of the House—two of them are senior advocates—and six attorneys. So 48% of the Official Opposition are jurists. I wonder whether that is not a record.

Mr Chairman, with this legal component we hope to make a contribution towards keeping South Africa’s legal system at the present high standard. [Interjections.]

Order!

Someone is complaining on this side about agriculture. They are having a hard enough time of it; the attorneys will also help that hon member to get out of debt when he needs such help. [Interjections.]

Order!

This 48% of the Official Opposition are all proud of—and we jealously guard—the high esteem in which the South African legal system is held. We are here not only to criticise but also, as the hon the Minister said earlier in another debate, to make positive contributions, and we look forward to many good debates on justice matters.

The first important point in the legislation before us is that of the custody of records. The proposed new section 7 A deals with summonses in a civil action, in a magistrate’s court of course, which now have to be preserved by the attorney or the person who caused it to be issued. That does not only apply to a summons, but also to a return of service of documents by the messenger of the court. The advantage of that, as the hon the Minister has explained, is a saving in time, storage space, costs and, of course, also labour. According to the hon the Minister this new procedure has been operating very well in Pretoria for a number of years now. There is, however, something about it which bothers me, though not all that much, and that is whether the public’s right of access to legal documents is not being encroached upon. If one looks at the proposed new section 7 A (2) one sees that the summons and the return of service of the messenger of the court are not accessible to the public. That is the portion that bothers me. However, if one bears section 4 of the Act in mind which provides that the court is actually a court of record, it is clear that as soon as the matter goes further than the summons, particularly in regard to contested cases, the documents are then transferred to that court, and then of course they become public knowledge and the public’s right of access to court documents is, in fact, no longer encroached upon. In the circumstances we therefore have no problem with these amendments, nor any objection to them. We support them.

The second point I want to raise is that a judgment by default recorded by the clerk of the court is now regarded as a sentence of the court. I see that in his Second Reading speech the hon the Minister mentions that it is indeed the intention that it be a valid judgment. In my years of experience it has been accepted that once a clerk of the court has recorded a judgment and appended his stamp, it is a proper judgment. The intention is now apparently to remove any possible doubt that may exist. I personally think it was unnecessary, but it does provide legal certainty. In this connection we therefore also support the relevant amendment.

The third important point in the legislation before us concerns the fact that the monetary limit in respect of certain courses of action relating to fines of magistrate’s courts and regional courts is now being taken out of the hands of Parliament and transferred to the hon the Minister. The CP objects strongly to this on principle. Let me tell the hon the Minister that as a consequence of this we are going to vote against the legislation. We had a representative in the standing committee, ie Mr Louis Theunissen, who is now no longer a member of the House. As far as my knowledge goes he abstained from voting during the proceedings of the standing committee.

The CP’s standpoint is that encroachment upon the jurisdiction of our courts is a far-reaching and important step. We feel that this should be vested in Parliament and should not be delegated to the Minister. It is something which has, in fact, been dealt with by Parliament in the past. In that way it has worked well and we do not think there are good enough grounds to deviate from this established practice.

Another objection is that the increase in the jurisdictional amount goes hand in hand with an increase in the volume of work in a specific court. The volume of work in a specific court, in turn, has important implications, and it is necessary for Parliament itself to make decisions on these important aspects.

A further objection is that the jurisdictional increase now places specific matters within the jurisdiction of other courts, instead of maintaining the situation that prevailed in the past. If jurisdiction for recourse to the Supreme Court were pegged at an amount of R1 000, and the Minister were now to increase this to R1 100, cases which should properly be heard in the Supreme Court would now be heard in a magistrates’ court. We feel that this is also an important decision and that this should be vested in Parliament.

The Hoexter Commission’s report expressed the opinion that the envisaged Rules Board, which I do not want to elaborate on at the moment, should deal with these adjustments. We should have liked to have debated this matter still further. Perhaps we would have felt, at some stage, that such decisions should be taken by that Rules Board, if I may call it that. We feel, however, that until we reach that stage, these important decisions should still be vested in Parliament and not in the Minister.

There is another problem that we foresee, and that is that this amendment could lead to an overload in the work of magistrates’ courts. The truth of the matter is that as it is magistrates’ courts are burdened by a heavy workload and that they could now perhaps be given more work than they could properly handle. Consequently this amendment has very important implications. I could mention even more of them, but I have mentioned these few by way of example.

Because it involves a very important aspect of the administration of justice, which is a cornerstone of democracy, we feel that Parliament should decide about it.

In his Second Reading speech the hon the Minister gives this assurance:

In spite of that, what we are saying is that this consultation and consideration of relative factors should rather be done by Parliament itself and not by the Minister.

The hon the Minister also referred to the depreciation in the value of money, which is actually inflation. In his Second Reading speech the hon the Minister said:

Mr Chairman, it seems to me that as far as this depreciation is concerned, the hon the Minister has little confidence in the hon the Minister of Finance’s ability to combat inflation properly. The question that arises by implication is whether we, if we have to introduce legislation about this, are not ever going to combat inflation. Are we now providing for everlasting inflation? The Government should rather get the better of inflation and then it would not be necessary to introduce legislation of this kind.

I should also like to refer to aspects the hon the Minister mentioned in his Second Reading speech. They involve the simplication of procedures and positive steps to limit the costs of litigation as much as possible. The CP naturally agrees wholeheartedly with that, because this would make the administration of justice more accessible to the man in the street.

On the same page the hon the Minister referred to what he called “procedural reform or renewal”. In this connection I want to tell the hon the Minister that I have heard that there was a television programme a week or two ago—one which I myself did not see, but merely heard of—in which attorneys or other legal men apparently spoke of the possibility of the lowering of standards. If what I have heard is true, that is what the programme was about, I hope that the information I received was incorrect, because any lowering of the standards of our legal profession would be fatal, not only to the legal profession, but also to the country as a whole. Such a lowering of standards must be combated, from the outset, from within this highest council chamber in South Africa. We must not accept this under any circumstances. We must oppose it.

In conclusion I want to come back to the monetary limits and say that the CP is opposed to the legislation because Parliament’s authority is being undermined by granting the hon the Minister powers which pre-eminently belong to Parliament. It is unsound from a democratic point of view and creates too great a gap between Parliament and the democratic process. That is why the CP will be voting against this legislation.

Mr Chairman, the hon member for Overvaal mentioned the strong legal team on the CP side of the House. I think that proves only one thing, and that is that legal men can also make mistakes, particularly when it comes to politics! I want to assure him, however, that we on this side of the House also look forward to conducting constructive debates on legal matters with the legal men on that side of the House.

I regret that the hon member does not see his way clear to supporting the principal measure in this legislation, ie the continual adjustment of the jurisdictional limits by the hon the Minister. I suggest that this is a very great improvement. The fact is simply that inflation does exist—this is not the time to argue about that—and it is simply no longer practical to adjust the jurisdictional limits in this House each year. What the hon member for Overvaal did not argue about was the purpose of this step. The purpose of adjusting these jurisdictional limits, particularly in regard to civil matters, is the limiting of legal costs as far as the man in the street is concerned. That is the purpose for which this measure is being passed.

In this connection there is one matter that worries me. I am referring to way in which these adjustments have to be made. They will be done by the Minister by a notice in the Gazette. I agree that the Minister should do so, because that is the most efficient way in which it can be done. The problem is that as matters will now stand, on the most basic of issues, such as jurisdictional limits in regard to punitive and civil matters, it will no longer be possible to obtain clarity from the legislation itself; one will need to have recourse to the Gazette. In my view that is extremely cumbersome, particularly since, in this legislation, we are specifically trying to move away from paperwork and unnecessary administrative inconvenience. Here, however, we are now adding to such inconvenience. On such a very basic matter one must now not only refer to the Act, but also to the Gazette.

I also wish to contend that this also results in extremely inelegant legislation. This is now going to mean that when one looks at the legislation, in clause after clause one will find nothing but references to government gazettes. For that reason I want to ask the hon the Minister whether there is no better method for dealing with these matters in future—and I am convinced that more of them will be referred to the House. My suggestion would be that the Minister be given the right to amend the Act by notice. That is surely what is, in effect, happening here. He is merely doing so in the Gazette. The Act would thereby be saying more and we would not be creating additional administrative work or paperwork. It would be a more practical and realistic solution.

The other amendment which I should like to support very strongly is the amendment to section 7 of the Magistrates’ Courts Act. This will definitely mean a reduction in paperwork and administration and in the long run, it is hoped, a decrease in staff in the magistrates courts. Consequently I support that measure as well.

Mr Chairman, this Bill should not delay the House unduly. It is the product of the how the hon the Minister’s department and of the consensus which was reached in the Standing Committee on Justice last year. We support the three principles which gave rise to the legislation. In fact, I think we are the only party now, including the National Party, which supports the principles without too much fuss. It seems that the Government is going to have more trouble from its own party with regard to this particular Bill than from the PFP.

We support the three principles which give rise to the legislation and are in full accord with the motivation which has been outlined by the hon Minister. Clauses 1 and 2 of the Bill provide that in future civil summonses issued will be preserved by the party issuing the summons or by his attorney, and will not be lodged in court. This is in fact a far better arrangement than has obtained in the past and, apart from bringing about a saving in time, storage space, manpower and costs, as has been mentioned by the hon the Minister, this amendment ensures the privacy of the dispute prior to trial, which is much fairer than the present position.

It must be remembered that a summons is not a judgement. Accessibility to the public of the details of a claim, without the defendant’s case being set out, is very often most disadvantageous to the defending party. The amendment rectifies that situation. All the other clauses of the Bill, save one, have the effect of empowering the hon the Minister, from time to time, to adjust the monetary limits with regard to various causes of action and punitive jurisdiction in respect of the lower court fines.

In a country which for several years now has experienced an annual inflation rate far in excess of 12%, I believe that rigid monetary limits on jurisdiction are quite inappropriate.

In order to keep pace with reality, regular adjustments are required. The only method of effecting these at present is by means of repeated annual legislation. I am satisfied that the method suggested in the Bill will bring about the necessary adjustments in a far more satisfactory manner than the existing system, and the hon the Minister will be pleased to hear that I am satisfied that future changes will be made in a responsible manner, and only after suitable consultation with all those who should have a say.

I was a little surprised when I heard the speech of the hon member for Pietermaritzburg North, who was vice chairman of the Standing Committee on Justice when this Bill came before it.

I did not vote …

To my knowledge, he did not make this point in the committee.

I made it.

He must have made it very softly. [Interjections.] He could not have made it very convincingly. I am surprised, however, that he raised the matter at this stage because he certainly did not make a great plea or vote on the issue in the committee.

Mr Theunissen did, as he said, abstain from voting in the committee, but I cannot recall his speaking against the principle.

He wasn’t happy about it.

Well, he kept his unhappiness to himself.

He is a gentleman.

In principle, the CP is correct in its view that we should not lightly detract from the powers of Parliament in matters of this sort, but I think we should not take that principle too far. It is quite wrong to say that allowing the Minister the right to make adjustments from time to time might create a situation in which one court is overloaded to the detriment of another, and so on. I believe it is obvious that, in making changes, the Minister will have before him the entire spectrum of courts and the jurisdictions which apply to each and would make a decision taking all those factors into account. I am sure that he would take the broader view. While the principle that we should not derogate from the power of Parliament is correct, we must be careful not to overburden Parliament with a lot of repeated legislation which could bog it down.

You are becoming a Nat already.

I should like to inform the hon member for Soutpansberg that nothing could be further from the truth.

Clause 9 of the Bill, which provides that a default judgment entered by the Clerk of the Court shall be deemed to be a judgment of the court, merely gives certainty to a practice which I believe has always existed.

Therefore I think that all in all, rather strangely, you will find, Sir, that it is the PFP that is supporting this Bill most enthusiastically of all the parties in this House. [Interjections.]

Mr Chairman, I gladly support this Bill and should briefly like to deal with a few of the clauses it contains. It frequently happens in practice that a summons is issued, by the clerk of the court, at the request of the plaintive or his attorney, and that the defendant, upon receipt of the summons, pays the capital, interest and costs. It could also happen that the summons is withdrawn, for example because a wrong defendant has been cited, or because the case is settled without the defendant giving notice of his intention of defending a civil action.

In all these instances the clerk of the civil court has opened a file upon receipt of the return of service of the messenger of the court. The proposed insertion of section 7A will result in the clerk of the court spending less time on opening, closing and storing files and more time on essential procedures such as the granting of judgements by default, the issuing and receipt of document and the allocation of trial dates.

So this amendment will not only bring about the better utilisation of the clerk of the court’s time, and therefore effect a saving in manpower, but will also result in the more rapid issuing of documents by attorneys, which will inevitably mean that they can bring the actions instituted by them to quicker finality.

The most important amendments are those dealing with the monetary limits of certain causes of action. An increase in the jurisdiction of magistrates’ courts means that more civil cases will be kept out of the Supreme Court. Litigation in the Supreme Court is more expensive and it takes longer to reach final judgement. Over the past few months the legal profession has frequently had the accusation of high legal costs and the tardy finalisation of cases levelled at it. Inasmuch as the proposed procedure in the law courts are responsible for this, it is an honest attempt at eliminating objections, of course provided the hon the Minister will use the powers, as often as is necessary, to increase monetary limits. My request is that they should be increased as quickly as possible, and significantly too, and that a possible increase in the jurisdiction of the small claims court also be looked into. I have the utmost confidence in the ability of trained magistrates to maintain the high standard of our administration of justice in their adjudication of civil actions. Limiting legal costs does not mean that practitioners need decrease their prescribed fees or that they are not allowed to increase them. It merely means that courts should, to a greater extent, be within the reach of the average man. This could, for example, be done by having more cases fall within the jurisdiction of magistrates’ courts.

A legal system which becomes inaccessible does not serve the community and creates a feeling of frustration and helplessness. I therefore cannot agree with the hon member for Overvaal in his criticism of this legislation, and more specifically of the proposed extension of the jurisdiction of magistrates’ courts by way of regulation by the Minister. The one problem he has is that magistrates’ courts would be overloaded with work. At present the position in the Supreme Court is such that there are too many cases to be dealt with by the available number of judges. Whether there are too many cases for the available judges, or for the available magistrates, somewhere along the line either magistrates or judges will have to be appointed. The matter will have to be addressed in one way or another.

As far as the hon member for Overvaal’s second objection is concerned—I am referring to the question of democracy being encroached upon—the truth is that this matter frequently has to be addressed as quickly as possible. At times it takes Parliament a year to pass a Bill. In any event, I think that too many statutory amendments are dealt with on this basis. There is too much legislation and it takes too long to have it finalised.

The hon the Minister has clearly said that there will be consultation with interested parties. As far as I am concerned, this is an administrative matter, and administrative action can take place by way of regulation. I also want to thank the hon member for Sandton, on behalf of this side of the House, for his support of this Bill.

Mr Chairman, it is indeed an exceptional privilege for me to make my maiden speech in this House today and at the same time put into practice the opportunity to represent the voters of Losberg here.

†Allow me to add to this that I am not only talking about the constituents that voted for me on 6 May but about everyone in this constituency. It could quite honestly be said that Losberg is a constituency that could be regarded as a microcosm of South African society.

*Losberg is a constituency consisting of farmers, mineworkers, factory workers, academics, businessmen and so on. Perhaps, therefore, an election result in Losberg is so much the more a result for the future of the country as well. I regard it as an exceptional privilege to refer in this regard to a standpoint adopted by the hon the Minister of Justice in his Second Reading speech when he referred to the fact that the Government is indeed in earnest in wishing to improve the accessibility of the courts in South Africa. For that reason I should like to make a contribution on this occasion on how practical measures could in fact be effected to improve this accessibility, with a brief exposition of what I should like to call the possible introduction of comprehensive legal costs insurance for litigants in South Africa.

One of the primary characteristics of all refined legal systems is the opportunity to have rights that have been violated, restored in the courts. It goes without saying however, that the rights that are guaranteed in each legal system would be meaningless if litigants lacked the finance required to be able to afford legal representation. This applies in particular to South Africa where we have a society consisting of various communities. This does not, as is widely assumed, apply only to the Blacks who are unable to afford legal representation; it applies at present, and has done particularly over the past number of years, to Whites, too, who are unable to afford an advocate or an attorney for even the simplest case. To ensure that guaranteed rights are given practical meaning for litigants, several methods have been provided for in the South African judicial administration whereby legal costs are controlled. On this occasion I just wish to refer to some of these because within the framework of a maiden speech I cannot go into all of them in detail.

Firstly, there is the procedure of in forma pauperis, the procedural operation of which is described in rule 40 of the Uniform Rules of Court. However, on reading that particular rule it very soon becomes clear that with the exception of place of residence, equipment and clothing, only prospective litigants who possess property to the value of less than R100 can make use of in forma pauperis procedure. It is immediately evident that this institution no longer really serves its purpose in present-day life.

Secondly, the pro deo litigation is available to prospective litigants in civil cases in terms of rule 53, laid down by the Magistrate’s Courts Act. It would appear that rule 53 provides a framework of broader scope to prospective litigants because there is no reference in this rule to the limit of R100. The third possibility is pro deo defence in criminal cases which in practice is only really relevant in the case of capital crimes. As a result, accused persons that fall beyond the scope of capital crimes cannot, in practice, avail themselves of this aid.

In the fourth instance pro amico legal assistance is available. This is precisely what it says, namely that one grants legal assistance to a friend.

In the fifth instance legal aid is available by way of the Legal Aid Board in terms of Act No 22 of 1969, to which I shall come back later.

Then, too, legal advice and assistance is provided by university law clinics and by private law clinics.

In the seventh instance there is the automatic review by the Supreme Court of findings by magistrates in terms of sections 302 up to and including section 306 of the Criminal Procedure Act.

Finally, the latest addition, which is widely welcomed, is available—namely adjudication in terms of the Small Claims Courts Act, Act No 61 of 1984.

The abovementioned juridical aids aimed at bridging the problem of legal costs in South African legal practice and rendering the courts more accessible to litigants all have one or more major shortcomings. Taken together, it could be said that the specially created courts for the adjudication of small claims as formulated in Act 61 of 1984 permit no legal representation and in this way violate the existing fundamental right to legal representation in all systems of law.

In contrast, the right to legal assistance is given effect to in other procedures to provide aid in respect of legal costs; procedures such as those of in forma pauperis and those in terms of the Legal Aid Board scheme. As previously mentioned, the means tests for prospective litigants are so low in these instances, however, that for all practical purposes the systems lose their functionality. It is my considered submission—and I should like to convey it to this House on this occasion—that consideration will have to be given in South Africa to a system of comprehensive legal costs insurance which, regarded mutatis mutandis, could operate in almost the same way as medical insurance. Presently available car or domestic insurance policies already provide some degree of insurance against legal costs—I refer hon members in this regard to page 140 of the Hoexter report. The appeal being made here is specifically that these examples be extended with a view to introducing comprehensive legal costs insurance in South Africa.

With all due respect I wish to put to hon members a few concrete examples of this system of legal costs insurance. In the first instance, it would increase accessibility to the courts. It is just this fundamental principle that was the ratio decidendi for the establishment of the Hoexter Commission.

In the second instance it would, in my opinion, remove the financial impediment to the courts, and we shall be approaching the ideal of an unrestricted access to the courts in South Africa.

In the third instance it would achieve legal representation in litigation and in this way materially promote justice in our judicial administration. Hiemstra, in his well-known book, Die Strafprosesreg in Suid-Afrika, has the following to say in this regard:

As regards the practical operation of legal costs insurance I wish to suggest that useful points of contact could be found with the already existing medical insurance schemes and in addition, that research into continental legal systems in the field of comparative law could be carried out abroad.

As regards the introduction of this system I should like to put it to hon members, without in any way wishing to seem presumptuous as a newcomer, that it seems to me that the Departments of Justice and of Constitutional Development and Planning could be called upon to take the initiative, in co-operation with professional bodies such as the General Bar Council, the Law Societies of South Africa, the Legal Aid Board and private insurance companies, to investigate, make recommendations on and issue a report on the following: Firstly, the introduction of a comprehensive legal insurance scheme for South Africa; secondly, to investigate for this purpose the introduction of a legal insurance board and a legal insurance fund; thirdly, to investigate the method of operation and composition of such control and administrative bodies as may be deemed appropriate to initiate and develop this scheme.

Finally, I believe that the entire House—in other words, every hon member, irrespective of his party political leanings—is motivated by the desire to improve the quality of life of everyone in South Africa. The practical realisation of unrestricted legal representation, together with a system to overcome problems relating to legal costs in South Africa, would undoubtedly contribute towards that. I am of the opinion that an investigation should be carried out into the introduction of comprehensive insurance in respect of legal costs, and in my opinion this would entail considerable benefits for our society.

Mr Chairman, permit me to say, at the very outset, that the excellence of any system, and therefore the legal system as well, depends firstly on the excellence of the people functioning in such a system. I should therefore like to make a few remarks about an institution in our country which, apart from many other good qualities, is also responsible for training many of the excellent legal men in our country, ie the University of Pretoria. I represent the constituency in which the University of Pretoria is situated, from which a significant number of the voters of Rissik come.

The University of Pretoria is one of the most notable sources of trained manpower in South Africa. In the past 75 years 70 000 students completed their studies at this university, and it is foreseen that in the next 13 years, up to the end of the century, a further 60 000 students will graduate from this university. The comprehensive academic and training facilities of this university are grouped into 12 faculties, with more than 130 academic departments, together with an extensive research programme which makes it one of the most comprehensive universities in South Africa. Owing to its roots, its traditions and its location, the university is, for the most part, an Afrikaans-language university. It popularity amongst other language groups is apparent, however, from the fact that more than 16% of the 20 000 students have a language other than Afrikaans as their mother-tongue. In fact, the University of Pretoria has more English-speaking students on its campus than some English-language universities in South Africa.

The University of Pretoria administers and organises assets of approximately R300 million and has an operational budget of more than R175 million per annum, which makes it comparable to many top undertakings in South Africa.

As far as I am concerned, the most encouraging aspect of this university is its perspective of the future, as expressed by its rector, Prof Danie Joubert, who says that the University of Pretoria has a vision embracing the whole of Africa but a vision which, in its own area, has succeeded, with renascent thinking and scientific methods, in establishing new horizons.

It is indeed a privilege and a responsibility to represent a constituency which has, merely as one of its outstanding characteristics, a university such as the University of Pretoria.

Permit me now too, Sir, to make a few remarks about the Bill. It falls within the ambit of many steps taken from time to time to keep legal fees in check, thereby extending the accessibility of the courts to everyone. The most important benefit of this Bill is to obviate the disadvantages brought about by the devaluation in the monetary unit, and inflation, resulting in the monetary limit in magistrates’ courts getting out of step from time to time. Up to now this matter could only be rectified by statutory amendments. By the lengthy process of statutory amendments the gap between magistrates’ courts and the Supreme Court has been widened and the balance between the two disrupted. An overloading of the Supreme Court and an under-utilization of magistrates’ courts took place. The measures which now enable the hon the Minister speedily to rectify this matter will decrease legal costs since it will be possible for cases which should not in fact have appeared on the Supreme Court roll to be adjudicated more cheaply in magistrates’ courts. I therefore support this Bill.

Mr Chairman, I listened very earnestly and attentively to hon members discussing this subject. Let me start off by saying that while greater jurisdiction is being granted, greater responsibility is also being placed on the courts, and this has important implications.

I am sure you will permit me, as a new member and in my maiden speech in this House, specifically to mention two aspects on this occasion. Firstly it is a privilege for me to be able to speak in this House. In the ’thirties my late father was a clerk in this House, and today it would have been a special privilege for him to have been able to listen to me, particularly because he had such a great interest in law.

Secondly, I represent a constituency which has a distinct historical background and which has had distinctive historical figures as representatives in this House. I am referring, in particular, to the fact that this is probably the only constituency which has furnished two Prime Ministers, ie Gen Botha and Gen Smuts.