I move—

The committee will see that later on in the Bill provision is made that in any case or application, or anything which comes before the court, the mother will have the same right as the father to appear on behalf of the child and to bring any applications before the court in connection with the custody and guardianship of the child, and the maintenance of the child. In the definition it is stated that the word “maintenance” includes “education”. The fear I expressed at the Second Reading was that we were now opening the way to long drawn out court cases between husband and wife about their children. We who have objections to this Bill are not opposed to the woman. We are not against granting the woman her rights in connection with the children, but we say that because this Bill is an ill-considered and unstudied measure, it will cause many difficulties. We see in the newspapers how in America and in other countries long drawn out court cases are heard between husband and wife about the children. Do we want that in South Africa also? We read about Barbara Hutton and her foreign husband who for months and years litigated in connection with the child, the child who eventually must inherit the Woolworth millions. We are now opening the way in South Africa for that sort of thing. I do not wish to say that that will be the general rule, but we are opening the way to it. We therefore say that the definition of maintenance should not include education. I do not wish to say that all men are perfect. Far be it from me. We have had the position up to now that the husband and the wife consult each other in regard to the education of the child. Generally the wife gains her point. We who are married men know that. No injustice is done to the wife. But if there is a conflict between the husband and the wife about the question of where the child must be educated, and how and by whom, then it is the husband who decides. The husband pays for the education of the child. He must therefore have the right to say what will happen. There is another Bill before the House which will result, if it is passed, in the position that if the wife has a separate estate of a million pounds, she cannot be compelled to contribute towards the maintenance of the child. Even if she possesses a lot of money she cannot be compelled to contribute. But here, by virtue of this Bill, she can also claim to have a right of expression while the husband is the person who must pay for it. One can easily have the position that the parents have to decide to which school the child must go. The wife wants the child to go to one school and the husband to another. The wife, if she is foolish, applies to court for the child to be sent to the school she chose. There may be cases in connection with the language medium in which the child should be educated. The husband may be in favour of another medium. The wife will go to court and then the court has to decide whether the child should be educated by means of Afrikaans-medium or English-medium or any other medium. Do we wish to lay this burden on the court? Do we wish the courts to decide in what language the child must be educated? I say it is not in the interests of family life that the court should decide whether a child should go to an Afrikaans-medium or to an English-medim school. You are opening the way to court cases; numbers of cases will go to the courts and the courts will decide what is in the interests of the child. How are the courts going to decide what is in the interest of the child, as to which medium is better? There may be other cases of a religious nature, or religious education. Up to now the husband has had the final word. It may work out wrongly sometimes, but where there is disagreement the husband decides because he pays for it and because according to all our legal views he is the head of the family, and because in the marriage ceremony the wife undertakes to submit herself to the husband and to be obedient to him. Then we come to the religious education. The wife might for example wish to send the child to a Catholic School and the husband to a Protestant School. Quarrels arise on the point and now the wife can go to court to decide what religious education the child should receive. There may even be cases as regards denominations of churches, to the Sunday school of which church the child should go, to which church the child should belong. There is a difference of opinion between husband and wife and the wife goes to court. Later, when the child goes to university, the wife may want him to become a parson and the husband wants him to receive a medical training. The child is a minor. Quarrels and misunderstandings arise. Then the court has to decide in the interest of the child what profession the child should follow, It is an impossible position. The husband is responsible and must pay, but the court may perhaps decide in favour of the wife and lay down that the child must be educated according to the wishes of the wife. Then you are faced with the position that the husband must pay but has no authority. He can be summoned. But if the other Bill passes, the wife with a separate estate cannot be summoned for it. The husband will have to pay and has no authority. I approach this measure not so much from the point of view that injustice will be done to the husband, or that the husband or the wife must receive this or that right, but I approach it from the point of view that it may give rise to court cases between husband and wife over that primary consideration in family life, the education of the child. That is why I propose my amendment. Litigation may arise over religious education, school education, the language medium and everything. The foolish wife may perhaps not wish to bow to the husband and goes to court. There are many cases where husband and wife do not live together. The husband must pay for the education of the child but the wife will be able to go to court and enforce her will. The husband must pay but he has no authority. The court will have to decide whether for example the child should be educated in Johannesburg or in Cape Town, or whether it should be educated through the medium of Afrikaans or English, or whether the child should be instructed in this religion or the other. By means of this Bill we are creating a fertile source of quarrels between spouses, for litigation about matters which should never go to court, and we are putting the court in a difficult position in deciding these matters. This measure does not give more rights to the wife than to the husband, but the position in the past was that when there was a difference of opinion the husband had the final authority. The authority the husband had in case of differences, by virtue of the common law, is now taken from him by this Bill, and according to this measure the court may not consider any greater right on the part of the husband or of the wife. The court has nothing to do with that, but it must decide what should be done with the child.

The dangers depicted by the hon. member are all imaginary. They are not actual dangers. Let us ask ourselves how many times the father and the mother do not agree on these points. Almost never. But in exceptional cases, probably one out of 10,000, where they do not agree, it is right that the court should decide. We have confidence in our courts’ decisions in such matters. It is not a case of who has the most colour of right, but it is clearly stipulated in this Bill—I accept that Clause 4 is being amended in accordance with the amendment proposed by the hon. member for Parktown (Mr. Stratford)—that the interests of the child is the first and most important consideration. If you find an unfortunate case where the father and mother do not agree, the interest of the child will be paramount. The hon. member ascribed all kinds of terrible things to the woman. Let us accept that the husband is wrong. We know how strong religious feeling is in our country. The husband may be a Catholic and the wife a Protestant. At present the husband alone has authority and the interests of the child aré not considered. The child must now go to a Catholic school although it lives with the mother. Do we want that? I do not think so. Therefore I say that we have confidence in the courts. Let the courts decide what is in the interest of the child. The father, as the hon. member says, will not have a greater right. Nor should it be so. I would rather give the greater right to the mother, but in any case the welfare and interests of the child should come first. Where the parents cannot agree, the court will decide and the test applied by the court is, as is clearly laid down here, what is in the interest of the child. That is the first and most important consideration, and so it should be. Take the language question to which the hon. member also referred. We have many cases of men who came from overseas and were married in this country. Unfortunately many of them have already returned. What must happen to the children? Does the hon. member wish that the father overseas should be able to determine that the child of the Afrikaans-speaking wife should be educated by medium of English. Give the courts the right. If we accept the amendment of the hon. member that “maintenance” should not include “education”, we will render the Bill practically worthless, in my opinion. The aim of the amendment is practically to make the Bill worthless. I am not in sympathy with. I am in favour of the Bill and will not vote for the amendment.

I am afraid I cannot accept this amendment by the hon. member for Winburg (Mr. Swart). He gave away the major portion of his case when he admitted that of course the whole, question about maintenance for education would not arise in a happy marriage. He is perfectly correct. In a happy marriage these things are settled between the father and the mother, and it may be that he is right that in the vast majority of cases of happy marriages the mother has the final say because she is generally more interested in the child.

Is that why it is a happy marriage?

The whole object of this Bill is to deal with those cases where the marriage is not a happy one but where it is unhappy. There the hon. member for Pietersburg (Mr. Naudé) has made the position clear. It is just in unhappy marriages where the father should not be allowed to dogmatise and the mother must have some kind of appeal from his judgment. We are asking that the mother should have the right to go to the court. The hon. member for Pietersburg has put his finger exactly on the difficulty. He has realised that especially in these cases where the marriages are unhappy the mother must have some kind of right which she has not under our present system. As regards the fear of the hon. member for Winburg that long drawn out litigation in the courts will result, as happens overseas, let me remind him that our existing law reports, under the existing legislation, are full of reports of litigation which began in the Supreme Court and went to the Appellate Division, all about the custody of the child and about who will have the final say over the child. My Bill, so far from opening the door for litigation simply substitutes one small principle and says that where there is a dispute about the child the court shall decide simply on the basis, first and foremost: what is in the best interests of the child, rather than on the basis of the father’s rights. Then it seems to me that we would shorten litigation by substituting this one clear principle for these three conflicting ones, which exist under the present situation. I may point out to the hon. member for Winburg that under our present law it is not only the father who is liable to pay for the maintenance of the child. If the father cannot pay, and the mother can, the mother is equally liable to pay for the maintenance of the child, and therefore, if she is equally to pay for the maintenance, I fail to see why she should not be given the right by this House, she being the person who has to pay, to appeal to the Supreme Court if she is dissatisfied with her husband’s decision. That is all that this Bill asks for, and as to his fear that the courts will fail to decide what is in the best interests of the child, let me remind the hon. member that the courts are doing that every day, in every divorce case where a question of custody arises and in every judicial separation where there are children. The courts can always consider the best interests of the child. Why they should find it more difficult to do so under this Bill than they are finding it at present, I fail to see. He makes a great fuss about the fact that the father may have to pay more than he can afford to. Well, as the hon. member knows full well, the courts always decide, when it is a question of payment, according to the capacity of a man to pay. In my opinion that point also falls away. No, I am afraid I cannot accept the hon. member’s amendment. Circumstances are such that the question of maintenance, including education, is an important feature of the Bill and I cannot accept his amendment.

I am not at all happy about the extended meaning which is given “maintenance” in this definition clause. I am doubtful in the first place as to whether “education” means the type of education which the child will get, or whether it means the cost of the education. Provision is made in the Bill permitting the mother to go to court with an application, either for the guardianship, custody or maintenance of the child, so that the Bill recognises a distinction between guardianship and maintenance. Mr. Chairman, if maintenance includes not the cost of education but the type of education, I cannot see what the difference is, in principle, between guardianship and maintenance. In other words, saying that maintenance includes the type of education is giving it the same meaning, virtually, as guardianship. As I say, Mr. Chairman, there is some point in the reference to education in the definition as not being the type of education but the actual cost of it. I can see some point in that; in fact, it is logical. But I cannot appreciate it if it means the type of education:

In connection with the point raised by the hon. member for Umlazi (Mr. Goldberg), that is exactly one of my objections. “Education” here includes the kind of education, the cost thereof, and everything in connection with education, and the hon. member for Pietersburg (Mr. Naudé), who spoke, and also the proposer of the Bill, admitted that the whole question of education, the kind of education and the cost thereof—religious education and otherwise—is being submitted to the court, which must decide. I now wish to ask hon. members how the courts are going to decide. How is it possible for the courts to investigate this matter? The hon. members admit that I am right in saying that difficulties can arise, that differences can arise between the husband and the wife about the kind of education and the cost thereof. Now the hon. member for Pietersburg says the court must decide That is the whole point. How is the court going to decide what is in the interests of the child? The hon. member quoted the case of a member of the R.A.F. who marries an Afrikaans lady. The one wants the child to be educated through the medium of Afrikaans and the other wishes that the child should be educated through the medium of Englash. How is the court going to decide? Under this Bill the court must now decide whether the child should be sent to this school or the other. What principles must the court follow? What considerations apply? I do not say that the wife is incapable of deciding the matter. She is capable. In fact, the wife is very often more capable of deciding than the husband. But let them settle the matter amicably between the two of them, and not go to court. The hon. member admits that if there are differences between husband and wife the court will have to decide. Hon. members belonging to the legal profession, who are in daily contact with the courts, will know how very difficult it will be for the court to decide whether the child should be educated according to the Protestant, the Jewish or the Catholic religion, and whether that child should be educated through the medium of one language or the other. How will the court decide? Take the language question, for instance. The question of dual-medium schools is a bone of contention today between the Parties. The court must now decide whether the child should be educated through medium of English or through medium of Afrikaans. I say one cannot expect a court to investigate and decide on such a matter. What principle is the court going to apply? In the first place the court will, of course, look to the interests of the child. But must Judges now be asked to act according to their own convictions? One Judge on the Bench may perhaps feel that the child should be educated through the medium of English. Next to him there sits a Judge who feels that the child should be educated through dualmedium. Those Judges must then give a decision according to their political convictions, and not according to any legal principles. There is no legal principle to guide them in connection with such a matter of education. Education is not a matter involving legal principles. It is not a question on which there is any principle to guide the Judge in the court in giving a decision. The court must then apply political principles in order to decide how the child must be educated. That is true as regards language; it is true as regards religion; it is true as regards where the child should be educated. It will now be impossible for the court to decide whether that child should go to a boarding school in Bloemfontein or to one in Grahamstown. How is the court going to decide? The hon. member who proposed this Bill said; It will not be necessary in the case of a happy marriage; it will only be necessary where there is a difference of opinion between husband and wife. She also said that our law reports are full of cases dealing with the custody and guardianship of children, but I in turn reply that this Bill will render many happy marriages unhappy. This Bill will make the law reports still fuller of this type of case. It is not an easy question to discuss. It is a delicate family matter, but the fact remains that the position today is like that; if a difference arises between the husband and wife about these points I have mentioned, the husband will do as he wishes, unless the wife acts obstinately. Today the wife cannot go to court. The grass grows over that difference and the wind blows over it, and there is an end to it. But if you give the wife the right to take her husband to court and she uses that right, then that legal action will immediately be the beginning of a divorce action. It is immediately the commencement of a serious difference between husband and wife, because if once the wife has brought the husband before the court on such a matter, there is estrangement over which grass will not easily grow and the wind not easily blow. Even if she has exercised her rights, what does that mean to her? The legal position is this: If you wish, by means of this Bill, if it becomes law, to give the wife the right to go to court, and she exercises that right, you will immediately break up that marriage, or else it causes such a bad relationship in that family, as the result of the wife exercising her rights under this Act, that the marriage becomes unhappy, because the husband and the wife will not again easily live in harmony when once she has brought her husband before the court about the education of the child. And if she does not exercise her right, this law will not help her. My point, therefore, is that if you are going to allow court cases to be heard about the question of the education of children, and if you allow the wife to claim her rights under the law, you are causing that small escape of water through the wall of the dam which will destroy the wall and will destroy the marriage. We know what happens as soon as summonses are served on the parties to a marriage and as soon as litigation takes place. We know that trouble then starts. We know that both parties then act foolishly and that they can only be brought together to live in harmony again with the greatest difficulty in the world. My objection is that by including education the road will be opened for this sort of thing and the present position will become worse. If the wife exercises this right, a marriage which is happy—and where husband and wife perhaps just have a small difference of opinion on the question of education—will be broken up some time in the future, and that is just what we want to prevent.

This clause and the whole of the definition just prove how difficult it is for a private member to come here to amend the common law. The hon. member for Jeppes (Mrs. Bertha Solomon) is here trying, in this definition, to give a meaning to certain legal principles which exist, and to some which do not exist. Where she includes “education” it shows that she has not properly studied the background of our whole legal system. The hon. member will know that recently the Hon. Mr. Justice van den Heever gave a decision which laid down that there is a difference between “custody” and “guardianship”, that there is a difference between the protection of a child, or the custody of a child, and the guardianship. If we read Clause 2 we see that in line 33 there are these words:

“…. matters affecting the guardianship, custody or maintenance of such child …”. Therefore maintenance and custody go together; maintenance is included in custody. The hon. member must accept this, but why does she now go beyond the old legal system, where we definitely have the two conceptions, the custody of the child, on the one hand, and the guardianship on the other hand? She is forming yet another division in our common law. I wish to quote to the hon. member a passage from what Professor Pont says about this subject and especially about this first clause in the Bill—

If she wishes to have an amendment in order to define what parental power is, she should have defined parental power here, but she did not do that. She deals with the matter piecemeal. She wishes to include maintenance under custody, while under the Roman-Dutch law it falls under guardianship. It affects the material aspect. The money has to be found for the education of the child, and the two things can be separated today in our courts. Now she is mixing it all up together. Professor Pont says—

That is my point. I will read it again. The hon. member for Jeppes is a member of the legal profession and she ought to realise it. She is going to cause our courts to be faced with tremendous difficulties. They will now have to apply entirely new principles. If we accept this amendment, in 20 or 30 years time we will have a long series of law reports explaining what maintenance really means—

Was the hon. member’s attention ever directed to that? He continues—

In view of these remarks by a professor at one of our universities ….

Which university?

It is the University of Pretoria. Professor Pont is a well-known man. He comes from Holland where he studied the Roman-Dutch legal system, and he is also the Professor of Roman-Dutch law at the University of Pretoria. That just shows how careful we should be in this House before making such changes. It is very nice to try to tell the public outside that the wife is in a subordinate position and that she should now receive precisely the same rights as the husband, but when we reduce those ideas to writing we see how difficult it is. I say I am against this clause because the two powers are confused, the parental power and that of guardianship. We must first determine what is included under parental power and then we must decide what falls under guardianship. Then we should also see whether “maintenance” can receive a broader meaning so that it includes education. In Clause 2 we read—

Why is maintenance included? It is already included in “custody”. But now the hon. member has to include under custody also the education of the child, and that should rather fall under guardianship. I must say that the hon. member for Jeppes will be randering a very great service to the legal profession if she continues with this Bill. And I want to tell hon. members in this House that we who today are busy tampering with these things, who think we are going to make it easier in the future to decide these difficulties, will find ourselves in a greater labyrinth of trouble, and the hon. member for Jeppes should rather realise, especially as regards Clause 1, that it is beyond her power to pilot a private Bill through the House without having the background of all the experience of our judges. Let us appoint a Judicial Commission. [Time limit].

I am no lawyer, and I should like to deal with this point merely from a practical point of view. One of our great Afrikaans poets who said on one occasion—

Those words mean a great deal to our Afrikaners. It reveals immediately that great influence and power is exercised by the Afrikaner mother. We appreciate those words. From a practical point of view I want to say my attitude is this: We want to keep the mother on that elevated plane in life, and it is for that reason that I should like to support the amendment of the hon. member for Winburg in these few words. If this clause goes through in its present form, we are going to have divided leadership in the home to begin with, and divided leadership has never produced anything worth while. We shall have unpleasantness if this Clause goes through in its present form. The hon. member for Pietersburg (Mr. Naudé) stated frankly that there may be one case of this nature out of ten thousand cases. If that is really the case, I want to ask the hon. member, since there is only one case in ten thousand, why go to the length of leaving the door open and encouraging these cases and increasing them? After all that is what will happen. By means of this Bill we are giving the mother to understand that she has no rights in the community as against her husband. That is definitely not the case, and we know it. We see the happy side of married life and we also see the unhappy side of married life. The hon. member for Jeppes tells us that the courts daily have to decide cases in regard to guardianship in divorce proceedings. That is quite correct and we know that is the case. But we want to know why, if the courts have to intervene in those extreme cases, legislation should now be called into being which is going to give rise to more difficulties in the parental home. I agree that if the mother is given the right to bring these matters before the court it will lead to difficulties. Once the mother has brought the father before the court, we shall never be able to restore the love and the good spirit which prevailed between husband and wife. That will be destroyed if this Bill goes through. Let us assume that a case of this nature comes before the court. We are going to place our judges in an impossible position. Take the question of religion. What is the judge going to decide? It may be a judge who professes the Roman Catholic faith. After all, there is nothing which is dearer to us than our religion. It is going to be very difficult for the judge to decide to which church the child should go. He can only judge according to his own religious convictions. We are going to place the courts and the judges in an impossible position, and we are going to leave the door open for further difficulties. Where the married woman would formerly never have dreamt of going to court in the event of a dispute in the home, in regard to the faith which the child should profess or the education which the child should receive, she will now go to court since she is given the right to take the matter to court. Today we have the case that a child may be at school for many years before he shows an aptitude in any direction, before he decides what his occupation is going to be. We parents do not discuss this matter with the children while they are young. But if this Bill goes through, the mother may say that her child should become an advocate; the father may say that the child should become a minister. How is the court going to decide a dispute of that nature? It is going to create an impossible situation. I say it is impossible for any judge in the world to decide what is best for the child in the educational or religious sphere. The court cannot possibly decide that. I think we are on dangerous ground here. And for the sake of the wife, in order to keep her on her present plane—and we should like to see her elevated even more—I make an appeal to the hon. member on the other side to accept this amendment. I would rather keep the married woman on that high plane than to drag her into court cases. I am very glad to be able to support the amendment of the hon. member for Winburg in these few words.

I should like to say a few words in connection with a different aspect. In this respect I had amost thirty years’ experience in the Transvaal. I can say that in the course of the thirty years’ experience I gained, I did not come across a single case in which the parents quarrelled in the school in regard to the education of the children. As far as the medium question is concerned, there we take the mother tongue. If there is a dispute in regard to the medium question, the matter is referred to the inspector. If the inspector has any doubt, the matter goes to the Director of Education. This legislation is therefore totally unnecessary in this respect. This Bill will now bring this matter into the courts of law, whereas it is in the hands of educationalists at the moment. It seems to me that this type of legislation which has been introduced here of late—and which was also introduced last year—emanates more and more from the Jewish side only. For example, there is the hon. member for Jeppes (Mrs. Bertha Solomon) who introduced this Bill. There is the hon. member for Pretoria (City) (Mr. Davis) who also introduced a private Bill and it seems to me that the motives …

The hon. member must confine himself to the clause.

I just want to show that this whole Bill, including this clause, is only concerned with the question of education. There are provisions in the Education Act which place educational matters in the hands of the parents; the parents decide, and if the parents are not in a position to decide, the matter is referred to the inspector, and if the inspector cannot decide, it is referred to the Director of Education and it is therefore unnecessary to introduce this legislation.

A number of objections have been raised in regard to this one important point, and we want to know whether hon. members who support this particular provision which I want amended, are of the opinion that the courts of this country are qualified to decide the question of a child’s education. On which principles will the court be able to decide? The hon. member who introduced this Bill cannot tell me on what principles the court will decide the matter. How can the court decide what is in the interests of the child? There are certain principles on which the court can act, but I am not satisfied with the vague provision that the court must take into consideration the interests of the child. I want to know whether the judge must decide according to his political opinion when it comes to the medium question, for example. I want to know whether the judge must decide according to his own religious convictions when it comes to a religious question? Can hon. members tell us what the position is? There are certain principles on which the court can act. The hon. member for Westdene (Mr. Mentz) asked the hon. member for Jeppes (Mrs. Bertha Solomon) to tell us how the judge could decide what is in the interests of the child. Let the hon. member tell us on what principle any court of law can act in deciding this matter? I am not prepared to vote for a clause which provides that the education of the child must be decided by the court, if the hon. member cannot tell me that the court will be guided by this, that or the other principle. Do not tell me that the court will decide what is best in the general interest of the child. When it comes to financial or physical matters, there are certain principles which the court can apply. But where you have to deal with spiritual matters, with invisible things, then I want to know whether there is any single principle which the court can apply in deciding through what medium the child should be educated, when the one parent is Afrikaans-speaking and the other parent is English-speaking, or which religion the child should profess when the one parent belongs to the Protestant Church and the other one to the Roman Catholic Church. What principles can the court apply? The hon. member comes forward with a Bill which relieves Parliament of the onus and places a great onus on the court. The judges will now have to find some principle or other according to their own religious convictions or their political views. I want to ask the hon. member again to tell us what principle the court can apply. I think she owes it to this committee; she owes it to the House. This House cannot evade its responsibility by simply saying that the court must get on as best it can. I can imagine what will happen if the court had to decide this matter. I can imagine the remarks the court would like to make with reference to Parliament if it had the right to do so, when it is called upon to decide something of this nature. I again ask the hon. member what principle the court is to apply when it comes to invisible spirtiual things.

When I sat down I was referring to the difficulty that there will have to be some test or other. In the past when the court entrusted the custody of the child to a parent, the court applied certain principles; the court knew who was going to be responsible for the maintenance of the child and that if the custody was given to the mother, she would have to provide for the needs of the child. His general needs must be taken care of, and as I explained it, education is not included in the existing law. But education is now being included, and it obscures the whole issue. I want to ask the hon. member for Jeppes (Mrs. Bertha Solomon) this. If a case comes before the court, how is the court going to decide this point? In the past the Order of Court was that so many pounds per month be paid for the maintenance of the child, until he reached the age of, say, 18 years. But now the court will have to take another question into consideration in connection with education. The mother will probably make far greater demands in respect of the education of the child than the father can afford. The hon. member knows that that was practically the position in the Cook case. The mother said that she could look after the children of 7 and 8 years much better because her parents in Pretoria had a luxurious home with beautiful playgrounds.

The court decided, however, that the father’s income enabled him to take care of the children. The court took various factors into consideration, but now the hon. member wants education to be taken into consideration as well. That will result in long, drawnout cases, and witnesses will have to be heard in regard to all the circumstances. What is the court going to do in the case of the religious and cultural background of the child, especially when there is a clash between the parents in those spheres? We are going to get a repetition of what happened in the case of Van Wyk vs. the School Committee of Keimoes. The School Committee decided that the child could not be admitted to the school, because the child was not regarded as a European. After there had been a lengthy case to take evidence in regard to the ancestory of the child, the case eventually reached the Appellate Division in 1911, and certain rules were then laid down by the Appellate Division, as the hon. member for Jeppes knows. That will happen in this case too. Education is now being included. What factors will now have to be taken into consideration before the court can grant maintenance? It will go even further. Possibly the parent concerned may have got the custody of the child, but because there is now the additional factor of education, he or she will not get it so easily. We are going to have this position that there will be court case upon court case, until eventually we will get an authoritative judgment from the Appellate Division in which certain principles will be laid down. I ask the hon. member for Jeppes not to press this Bill. I want to ask her to devote her attention to the article by Prof. Pont, in which he says, inter alia—

I also want to ask the hon. member for Parktown (Mr. Stratford) to give his attention to this article by Prof. Pont, and I want to ask the hon. member who introduced this Bill and her supporters not to create the state of affairs which is described in this article. I want to make an appeal to the hon. member for Jeppes to accept the amendment of the hon. member for Winburg (Mr. Swart). In doing so, she will render a service to the family life of our nation. If she persist in her attitude, she may serve the financial interests of legal practitioners. I wonder why she persists in this attitude. Surely she must have read all the findings and the principles which were laid down in the case of Cook. This case is already covered by the law, as I stated previously, and I want to make a final appeal to her not to persist in this attitude and to delete the word “education” from the definition.

We are putting these questions to the hon. member because we should like to have information on certain points, but she and her supporters are remaining silent. This is not the way to pilot a measure of this nature through the House. It will certainly not help her, because that attitude can only result in our becoming a little more determined than we are now. We have so repeatedly asked for information on this point, but we have received no reply, that we can only come to one conclusion, and that is that the hon. member for Jeppes and her supporters cannot reply to us on this point. They have no information to give us. They cannot tell us whether they adopt the attitude that the Supreme Court will have to decide these matters which have been raised here. They cannot tell us what principles the court must apply in a case where there is a clash of interests between the husband and wife. They are simply ignoring it, and it is quite unsatisfactory for us in this House to leave the matter there. When the Minister of Justice introduces such a Bill and we put questions of this nature to him, he has the Law Advisers at his disposal to submit the necessary information to the House. This shows once again how undesirable it is that a measure of such a far-reaching nature should be introduced by a private member, without proper investigations having been made and without having all the information before us. It is said that we want to go against the women of the country. That is not the case at all. I said we had certain objections which are based on the attitude that when very important alterations are made in our legal system, those alterations must be properly investigated, so that we can guard against all pitfalls. We are afraid that here we are dealing with matters which are going to lead to difficulties in the family life, and for that reason we are putting all these questions in order to get information from the hon. member. If she went into this matter thoroughly, if she had all the information which we require to put us at ease in connection with these objections, let her get up and give us the information so that we may know what the position is. If evidence had been adduced by the Select Committee on all these points from the wives, from the husbands, from the lawyers and from the Law Advisers of the Government, hon. members could have put these questions to them and obtained the correct information. In that case we would have been able to decide whether we can allow this measure to go through. But as it is we have nothing of that nature before us, and the hon. member who introduced this Bill, cannot give us that information. That strengthens our argument that this matter should be referred back to the Government so that it can be dealt with by the Law Advisers of the Government. Is it true that amendments were suggested by the Law Advisers? We still do not know whether those amendments will be moved. There is a feeling that this matter was not properly examined. We all want to see justice done to the married women, but there are many difficulties attached to such a case, and we cannot allow a measure of this kind, to go through unless all those matters have been gone into. I hope the hon. member for Jeppes and her supporters on the other side who are lawyers, will not persevere with this point, and that they will at least give us the information for which we ask.

Business suspended at 12.45 p.m. and resumed at 2.20 p.m.

Afternoon Sitting.

The hon. member for Winburg (Mr. Swart) and the hon. member for Gordonia (Mr. J. H. Conradie) have spent hours in trying to persuade the hon. member for Jeppes (Mrs. Bertha Solomon) to answer an objection which they have against the Bill. So far they have not been successful. I do hone that now, fortified by a good lunch, the hon. member for Jeppes will get up and reply to them. As far as I am concerned, this is purely a personal appeal which I am making to her.

How many times do you want her to answer?

She has not answered that point at all. As I say, it is a personal appeal I am making because I do not know how to vote with regard to this amendment. Before I go any further with regard to this matter, let me put my case, let me put my own view point to the hon. member for Jeppes. I have always agreed to and I have always believed in equal rights for women. But it seems to me that lately there is a tendency that the women should not only have equal rights but that they should have unequal opportunities. I think it is a movement in the wrong direction. I think the time will come in South Africa when we will have to start a national council for men. If not to fight for the rights of men then at least that the men should be given equal opportunities with the women. But if the women of South Africa and the women of the world are willing to waive their demand for unequal opportunities I am 100 per cent. with them to give them equal rights. I think if you give them equal rights and in that way get them to relieve us of some of our burdens, they will have a pretty tough time, not that I want them to have a tough time, but I think they should be taught a lesson. I do not quite know how to vote with regard to this amendment. I sincerely believe in equal rights for women, but unless the hon. member for Jeppes gets up and answers the objections made by the hon. member for Winburg and the hon. member for Gordonia, I shall not know where I stand. Let me put my case to her quite clearly. I am open to conviction. I have always been a very faithful follower of the hon. member for Winburg, perhaps too faithful. I might even say that I am open to seduction with regard to this matter. In fact, I am willing with regard to this Bill to be seduced from the hon. member for Winburg, but I do not see that everything should come from my side. Let me make this suggestion to her. If the hon. member for Jeppes wants to do her worst or her best, she might be successful or she might not be successful; that depends on her; but I think she should do something, if not to seduce me from the hon. member for Winburg, then at least to convince me that her attitude is right. With the background I have outlined, and my attitude towards the rights of women, I am open to conviction. But there is the hon. member for Winburg and the hon. member for Gordonia who are both legal persons; they are both people with legal training ….

Legal luminaries.

Yes, legal luminaries. And you know these legal luminaries have got a way of getting ordinary laymen like myself tied up in knots. The only way to get out of those knots is to get another legal luminary to untie those knots for me. I hope the hon. member for Jeppes will do it for me.

I have already done so.

No, it is not the same knot.

It is the same knot.

So much the easier. When these things are done more than once it becomes easier and easier.

Even seduction.

And I would suggest that the hon. member should try to untie my kot again, and I am perfectly willing to give her the first opportunity, and if she manages it at all, I will support her. But having heard this matter from the one side only it is very difficult for the ordinary layman to know what to do. It is now for the hon. member for Jeppes to do her best or her worst and on the result of that will depend whether I support the Bill or not.

Question put: That the definition of “maintenance”, proposed to be omitted, stand part of the Clause.

Upon which the Committee divided:

Ayes—57:

Abbott, C. B. M.

Abrahamson, H.

Alexander, M.

Allen, F. B.

Ballinger, V. M. L.

Bawden, W.

Bosman, L. P.

Burnside, D. C.

Butters, W. R.

Christie, J.

Clark, C. W.

Connan, J. M.

Davis, A.

Dolley, G.

Du Toit, A. C.

Eksteen, H. O.

Fame, J. C.

Friedman, B.

Gluckman, H.

Gray, T. P.

Hare W. D.

Hemming, G. K.

Henny, G. E. J.

Heyns, G. C. S.

Hofmeyr, J. H.

Howarth, F. T.

Jackson, D.

Johnson, H. A.

Kentridge, M.

Latimer, A.

Maré, F. J.

McLean, J.

Miles-Cadman, C. F.

Morris, J. W.H.

Mushet, J. W.

Payne, A. C.

Pieterse, E. P.

Pocock, P. V.

Raubenheimer, L. J.

Rood, K.

Russell, J. H.

Shearer, O. L.

Shearer, V. L.

Smuts, J. C.

Solomon, B.

Stratford, J. R. F.

Strauss, J. G. N.

Sullivan, J. R.

Tothill, H. A.

Ueckermann, K.

Van Onselen, W. S.

Wanless, A. T.

Waring, F. W.

Warren, C. M.

Williams, H. J.

Tellers: G. N. Hayward and V. G. F. Solomon.

Noes—21:

Boltman, F. H.

Brink, W D.

Dönges T. E.

Goldberg, A.

Grobler, D. C. S.

Haywood, J. J.

Klopper, H. J.

Le Roux, J. N.

Malan, D. F.

Mentz, F. E.

Potgieter, J. E.

Robertson, R. B.

Stals, A. J.

Steyn, A.

Strydom, J. G.

Swart, C. R.

Van Niekerk, J. G. W.

Vosloo, L. J.

Wessels, C. J. O.

Tellers: J. H. Conradie and P. J. Olivier.

Question accordingly affirmed and the amendment proposed by Mr. Swart negatived.

Clause, as printed, put and agreed to.

On Clause 2,

I want to move the following amendment to this Clause—

When we look at Clause 2, we notice that while two married persons are still living together under the same roof, the mother is entitled to apply to court for the guardianship, custody and maintenance of the child.

I want hon. members to note this clause, which reads as follows—

The application of the mother may have nothing to do with the friction between the parents. They live together under the same roof, and the wife then has the right to go to court and ask for such an order. What are the contents of my amendment? My proposal is that it can only happen if one of two alternatives takes place. The first is that such an application is related to or forms part of a claim for restitution of conjugal rights, judical separation or divorce. If there are difficulties of that nature, the mother can go to court and ask for an order for the guardianship or the maintenance and custody of the children. That is the law today. We go further, however. It may happen that circumstances arise where the mother no longer lives with the father, but where she does not apply for judicial separation or divorce. She lives apart with her children. For that reason I say in my amendment that if the parties live apart for reasons which, in the opinion of the court, are well-founded, the mother can apply for such an order. We meet the hon. member for Jeppes (Mrs. Bertha Solomon) to this extent, that if the circumstances in the home have so degenerated that the mother is compelled to live apart from the husband, and she takes the children with her, she can ask for such an order. Possibly she may not want to go to the length of asking for judicial separation, divorce or restitution of conjugal rights. She may be a Roman Catholic who does not believe in divorce. But the position in the home has degenerated to such an extent that she does not want to live with her husband, and she then lives apart from him. If the court is then of opinion that there are sound reasons why she no longer wants to live with her husband, she can ask the court for such an order, as provided for in this Clause. That is really as far as we can go in this case. The Clause which the hon. member for Jeppes moves, is tantamount to this that while the two parties live under the same roof and there is a difference of opinion between them as to the bringing up of the children, the mother can go to court and institute an action against her husband to get such an order. That will lead to a dislocation of the family life which we cannot allow. I make an appeal to the hon. member for Swartruggens (Mr. Henny) who is a lawyer and a right thinking man. Does he really think that we ought to introduce such far-reaching legislation which may affect the married life of our people in this way? This Bill simply lays down that while the two parties are still living together, the mother can institute an action against her husband. We say that we are prepared to extend our common law to this extent that the mother can institute an action where the two parties live apart, and when the court is of opinion that the mother has good grounds for living apart. I make an appeal to the hon. member for Jeppes to accept this amendment. This is a sound amendment which I moved after careful consideration. There will be hon. members who will say that if this amendment is accepted, we are not altering the common law in any way and that my only object is to restore the common law in all its glory. That is not the case. I do want to take into consideration the circumstances which have led to such degeneration in the married life that the two parties can no longer live together, and give the mother the right in those circumstances to apply for the guardianship, custody and maintenance of the children.

I want to add my appeal to that which has just been made by the hon. member for Gordonia (Mr. J. H. Conradie) to the hon. member for Jeppes (Mrs. Bertha Solomon) to accept this amendment. It would appear that some of the provisions of this Bill are being discussed in a partisan spirit and that should not be the position in a Bill dealing with such important matters as these.

Hear, hear!

The present clause, as I understand it, is meant to rectify a hardship which was disclosed in the Appellate Division decision of Calitz vs. Calitz. In that case, where a woman sued her husband for judicial separation, but failed in her action, it was held that she was not entitled to ask the court for the custody of the children because she had failed in these judicial separation proceedings, and the court in normal cases, only has jurisdiction to give custody to a parent when the marriage has been dissolved by divorce or its consequences have been suspended by a decree of judicial separation.

The court held in that case the husband, although his conduct was not such as to justify an order of judicial separation, nevertheless had acted in a way towards his wife in which he should not have acted, but nevertheless there was no jurisdiction to give custody of the children to the wife. I am prepared to concede at once that that is a circumstance which requires legislation. It may well be that the woman has no grounds, no legal grounds, for an order of judicial separation against the husband, but on human grounds she is justified in living apart from him and she should not then necessarily be deprived of the custody of her children. But this clause, as it now stands, goes very much further. It would enable a woman who has deserted her husband and has no grounds for living apart from him to come to court and ask for custody of the children. If there were young children the court might very well feel compelled to grant her the custody on account of the fact that the husband has to work or something like that. My submission to the hon. member for Jeppes (Mrs. Bertha Solomon) is that the amendment of the hon. member for Gordonia introduces a reasonable compromise in this matter. What that amendment suggests is this, that in no case where the woman and the man are living together, under the same roof, as husband and wife, should one of them be able to approach the court to get an order as to the custody of the children. A relationship which depends essentially on mutual confidence, and where the responsibility for the children rests on two people, will be endangered. This Bill would allow them to come to court to squabble about the custody of the children. That is the situation. I know the hon. member for Jeppes will probably say that we are legislating here for unhappy marriages, and it may be that the woman in such a case would like to leave her husband but for economic reasons cannot do so. I see the force of that contention, but to enable her to come to court to fight about the children in public will not make the marriage any happier, and I hope no hon. member will vote for this clause unless he has a clear understanding of what it proposes to do. The second thing which the hon. member’s amendment proposes is this, that where a woman leaves her husband and then comes to court to ask for the custody of the children, she must at least satisfy the court that there is some justification for her not going back to her husband—not necessarily legal grounds; not necessarily grounds which would entitle her to divorce or judicial separation, but she must satisfy the court, at all events, that there are some grounds on which she can justify the court’s taking the children away from their father. That safeguard, I do feel, should be introduced, and I think that if the amendment of the hon. member for Gordonia is accepted we will have a reasonable state of affairs, but as the clause stands at present the woman may leave her husband knowing that she can apply for the custody of the children if she does so. The amendment of the hon. member for Gordonia does not go to the root of the principle upon which this Bill is founded, but to introduce an amendment of the law as this Clause does, inviting parents who are living together to go to court about the custody of their children is, I suggest, an absolute invitation to unhappiness and I hope this House will not accept it.

I personally feel that the mover of this Bill would be ill-advised to accept this amendment, and I would like to say a word or two in reply to what has just been said by the member for Cape Western (Mr. Molteno). In the first place, I think the amendment proposed by the hon. member for Gordonia (Mr. J. H. Conradie) is quite impracticable and for the very reasons which hon. members on the other side argued for such a long time before luncheon. It will be quite impossible for any court of law to act in terms of the words used in the hon. member’s amendment. This is the purpose of the amendment as I Understand it: The hon. member recognises that as far as possible the wife should be put in a position to come to court and claim the custody of her child, even though she is not divorced or separated from her husband. As the law stands at present, when the parties are in statu matrimonio, that is when no divorce or judicial separation exists, she cannot do so. The hon. member’s amendment seeks to maintain that position, with one proviso, namely that if they are living apart for reasons which the court deems to be good reasons, the mother will be entitled to apply to court. Now I ask: How on earth can the court, not applying the ordinary rules applying to divorce or judicial separation proceedings, adjudicate whether the reasons for these parties living apart from one another are good reasons or not. In the words of the hon. member for Winburg (Mr. Swart) there are no principles or criteria on which the court can judge.

Then you agreed with my argument this morning?

No, but that is my first reason for disagreeing with this amendment. I want to overcome the difficulty raised by the hon. member for Cape Western. He sees grave dangers in permitting a woman who may leave her husband for no reason which will be recognised legally by a court, to come to court on any pretext at any time in order to enter into a battle with her husband in relation to the custody of the children. He says it is an undesirable state of affairs that the woman should be permitted to stir up trouble between herself and her husband. It seems to me that there is a conclusive answer to that argument. If this Bill becomes law and if the courts are approached can one possibly picture a state of affairs in which the mother, having deserted her husband for no good cause, will be able successfully, to claim custody of the children, unless it is really and genuinely in the interests of the children that she should have them? The hon. member for Cape Western completely overlooks the fundamental objects of this Bill. The fundamental purpose of this Bill is to preserve, at all costs, the interests of the children, and I say emphatically that if any woman, deserting a husband for insufficient reasons, comes to court to claim the custody of the children, she will not only be non-suited but she will probably be ordered to pay attorney and client costs, if she comes before court with a trumperty case.

Yes, out of the husband’s pocket.

The court has only one interest and one duty to perform and that is to safeguard the interests of the children. That is overlooked by the hon. member. I have no doubt whatever that if a woman, placed in the circumstances which the hon. member visualises, comes to court and lays before the court the circumstances, amongst which is the fact, that she deserted her husband without good cause, the court is bound to be influenced by that fact The court is bound to take into consideration the character of the person claiming the custody, and if the character of such a person, in the circumstances, is unsatisfactory, the court will take that into account. That is the fundamental point. Under this Bill the interest of the children will be the sole criterion, and if hon. members will only keep that in mind, all these fears about running to court on trivial excuses, should, in my opinion, be allayed.

We again have the position that the hon. member for Jeppes (Mrs. Bertha Solomon) is not condescending to reply to the arguments which have been raised, or to tell us whether or not she accepts this amendment. It is very unsatisfactory when a member who has introduced a Bill in Parliament does not reply to arguments or say whether or not she accepts an amendment, and simply to behave as though we do not exist and as though our arguments carry no weight. The hon. member for Parktown (Mr. Stratford) spoke here of “the sole criterion,” the sole criterion to be applied in such cases, namely the interests of the child. I take second place to no one as far as the interests of my own children are concerned and in giving other people the right to protect the interests of their children. But what of the family? What about the peaceful cohabitation of husband and wife? How can we enact laws which will estrange husband and wife? We cannot only take the interests of the child into consideration. It is psychologically wrong to advance that argument. As I am being reminded, there is one thing which is of the greatest importance to the child, and that is the harmonious and peaceful cohabitation of husband and wife in the home. But here we are dealing with legislation which, while the husband and wife still live together in the house, give them an opportunity to fight each other in court. How can that be in the interests of the child? We cannot only think of the interests of the child and forget the interests of the parents who have to live together in the house. That is an altogether wrong proposition. I maintain that there is one thing which is of the utmost importance to the child and its future and that is that there must be no quarrelling in the family, and more particularly that the child must not be the cause of that quarrelling. The hon. member for Gordonia (Mr. J. H. Conradie) moved an amendment to cover cases where the marriage is an unhappy one, but where the husband and wife do not want to go to the length of divorcing or separating judicially. The husband and wife live apart. The husband may be a drunkard or an undesirable character, and in that case the wife has the right to go to court and claim such an order as is described in this clause. But the hon. member for Jeppes is not satisfied with that. She wants the wife to have the right to go to court while the spouses are still living together. I think the hon. member for Gordonia has put the test to the hon. member for Jeppes. We may have the position in married life that the husband and wife do not get on well with each other, but they still try to live together for the sake of the children. I say we know what happens in practice. There are many marriages where husband and wife may not live together very happily; they have their differences of opinion, but for the sake of the interests of the children, they live together. Now the hon. member wants to give the wife the right to go to court when her husband has annoyed her for some reason or other. We are speaking from experience as lawyers, and we know that there is nothing which brings about greater estrangement between husband and wife than a court case. Nothing causes more serious estrangement than when they summon each other and give evidence against each other before the court. In the privacy of their home they can settle their differences, but once they nave to give evidence in public in an open court, and the wife is obliged to say how rotten the husband is, how he beats her, how he swears and comes home drunk in the evening, what remains of that harmony? They become completely estranged. That is what this Bill is promoting. Today that possibility does not exist except in the event of divorce. Then they can wash their dirty linen in public and the court then says: “Your husband is a rotten husband; we shall give the children to you.” Quite correct. With regard to those cases where they do not live together, where the bonds have already been broken, if not legally then de facto, if the father treats the children badly, the wife can go to court in terms of this Bill. That is what the Bill contemplates and we agree with it. If the father treats the children badly, the mother should have the right to go to court. I specially mention this point because outside this House the women’s associations are given to understand that we object to the Bill because we do not want to help the women to do their duty towards the children. That is not the case. We do not want to do any injustice to the women, but we want to prevent anything being done as a result of which many families which still live together, will be torn asunder. I make an appeal to the hon. member to accept the amendment. We will then take a step forward to give the wife the right to look after the interests of her children. I thought the objection of the women was, in fact, that when the family drifts apart, when the husband and wife live apart, the husband always retains the control of the children under the common law. He may be a person of weak character, a man who does not look after his children properly, but the wife is bound and cannot sue him for the custody of the children. That was the objection, and we regard that as a reasonable danger. We who are opposed to this measure, feel that the objection of the wife is reasonable, and the hon. member for Gordonia wants to give the married women that right. It is a step forward. But do not let us go so far. There is no reason for rushing this measure. Let us accept the amendment. By doing so we will improve the position of the wife as far as her rights in respect of the children are concerned. We will remove the greatest difficulty which is felt by the women of South Africa; but I cannot vote for this Bill as long as it contains this general provision that while the husband and wife still live together, they can fight each other in court. What will happen if the wife wins? Let us assume that husband and wife, neither of them beyond reproach, live together, that they go to court and the wife wins. They live in the same house. But according to this Bill the wife will now have the final say. What will the consequences be? Continual difficulties.

I hesitate to cross swords with the hon. member for Parktown (Mr. Stratford), but I must confess I fail to appreciate the second ground on which he relied in attacking the view of the hon. member for Cape Western (Mr. Molteno). The underlying principle of this Bill is the welfare of the child, and the hon. member for Cape Western raised the point of a case where a woman, without any cause whatsoever, acting therefore in the eyes of the law wrongly, deserted her husband and then made application for the guardianship of her child or children. Now the court is compelled to consider first and foremost the welfare of the child, and if the court comes to the conclusion the child will be better off with the mother, the court would be obliged to grant that woman (who has left her husband without any justification whatsoever) the guardianship of the child. I fail to appreciate how the hon. member can therefore suggest that a woman in those circumstances would be non-suited. The court would be in fact obliged, if the interests of the child would be best served by giving her the guardianship, grant her the guardianship notwithstanding the fact that she had left her husband without just cause.

I don’t dispute that.

In such case my friend agrees the court would give the mother the guardianship. My hon. friend from the Transkei (Mr. Hemming) should not in such case have the guardianship. The purpose of the Act is to enable the mother to deprive the father of the guardianship if he should deserve to lose it by his conduct. It is not intended to enable the mother to deprive the father of guardianship by virtue of a wrongful act of the mother. If the mother has done wrong she can, as the section stands, come to court and deprive the husband of the guardianship of the child. I doubt very much whether that was ever contemplated, but in any event I could not support such a proposal.

I feel that I must say a word or two in regard to some of the remarks which the hon. member for Parktown (Mr. Stratford) made in reply to considerations that I put forward in favour of the amendment of the hon. member for Gordonia (Mr. J. H. Conradie). This clause deals with two conceivable classes of case where the mother is to be given the right to approach the court. One is where the parents of the children are living together under the same roof, and the other where they are not doing so. Take the first case where they are living under the same roof. The hon. member for Parktown appealed to the House to put the interests of the child first. How can it be in the interests of the child when the parents are living under the same roof, to introduce an order of court into the family.

Hear, hear!

An order of court which orders a person to do a thing that can only be enforced in one way, and that is by a decree of civil imprisonment. How can it be in the interests of the child when one of the parents living under the same roof asks for an order of civil imprisonment againt the other? I cannot conceive of anything less in the interests of the child. When two parties are living together as man and wife under the same roof, the responsibility for the children is joint and should not be shifted to the court, and the court should not be called upon to take that responsibility. That is my answer to the first consideration put forward by the hon. member for Parktown. The second is where the wife has wrongly left her husband. The hon. member says there may be cases where the wife cannot bring an action for judicial separation or divorce against her husband, but nevertheless where the court should have discretion to give her custody of the child, if it had sympathy with the reasons for which she had left her husband. The amendment, however, only deprives the court of that discretion where she has left him for uterly indefensible reasons. The answer of the hon. member for Parktown on that is that the court would not give the custody of the child to the mother in those circumstances. Then why give the court the power to do it? Why put that responsibility on the court if it is never supposed to exercise it? My view is, and here I agree with the hon. member for Umlazi (Mr. Goldberg) there may be circumstances in which the court is compelled to exercise that jurisdiction in favour of—in this case—the guilty mother. The husband may be a poor man. He may be out at work all day. He may not have the means to look after the child as well as the mother. In those circumstances the court would be compelled to deprive the father of the custody of the child when he had done nothing wrong. On the one hand, he has not deserted his wife; on the other hand, in the interests of the children, he is not prepared to bring judicial proceedings against the wife. The amendment of the hon. member for Gordonia meets the real hardship of the present situation, but it does not allow the swing in the other direction which would cause far more hardship, far more unhappiness than the evil which is aimed at by this clause.

I have not thought it necessary to add very much to the able reply of the hon. member for Parktown (Mr. Stratford). It would appear, however, that hon. members, particularly the hon. member for Winburg (Mr. Swart) is desirous of hearing my voice ….

It is a compliment to you.

And therefore though I am anxious to get this Bill through I am anxious to get it through in a form which will help the womenfolk of this country. I am afraid that if I accept the amendment of the hon. member for Gordonia (Mr. J. H. Conradie) in this clause, it will destroy the whole purpose of the Bill. Because if hon. members will look at the Bill they will see that Clause 2 gives the wife the right to appear which she has not got at present unless the appearance is in connection with matrimonial proceedings. She always has the right to appear in connection with matrimonial proceedings, and the only new right given to her is to appear in other than matrimonial proceedings. If you take out the words “therefore or not” and substitute the hon. member’s “if” you are not altering the present position at all. In other words, you are retaining the present position. That is why I cannot accept it. I give the hon. member opposite the credit for realising the difficulties in Calitz’ case, and he proposes to add these words at the end—

Now what reasons can there be which in the opinion of the court are well-founded, unless they are legal reasons? The only reasons a court is concerned with are legal reasons, not moral or personal reasons, and therefore if the court can anly be concerned with the legal reasons, the only legal reasons the court can accept are the legal reasons which would justify a divorce or judicial separation. So the addition of the words of this proviso do not help the woman at all, or meet the difficulties in Calitz’ case. I would like to have met the hon. member. I am anxious to have the Bill go through, but I am convinced that the addition of his proviso does not alter the present position, and in the circumstances I am regretfully debarred from accepting his amendment.

I cannot understand the hon. member. She argues that the proviso in my amendment means nothing because the court will not be able to act on it, because the court can only act on legal grounds. The hon. member knows that numerous cases come before the court where the court is given the discretion to judge according to the circumstances. Does the hon. member want to deny that the court has discretion in numerous cases, especially in such cases as we are dealing with now? The court exercises its discretion and decides on the circumstances. The speech of the hon. member for Jeppes (Mrs. Bertha Solomon) does not take us any further at all. I have tried to meet her, and I want to emphasize that the second proviso of my amendment will help the wives whom she wants to help because the court has the discretion, according to this provision, to decide on the circumstances, i.e. the general circumstances under which the wife lives.

The hon. member knows that if the wife goes to court and asks for a divorce, for example, there are certain legal grounds on which she can get it. In the case of malicious desertion there are certain grounds on which she can get a divorce. If it is a case of judicial separation, there are legal grounds on which she can get it. But it may happen that the circumstances in the home become unbearable for the wife and she is sometimes forced to live apart from her husband. If she wants the guardianship of her children she has the right to put the full circumstances before the court and the court will then be able to exercise its discretion, but what surprises me are the arguments of the hon. member for Parktown (Mr. Stratford). After the speeches of the hon. member for Umlazi (Mr. Goldberg) and the hon. member for Cape Western (Mr. Molteno) there is not much to say for his standpoint. He says this Bill only seeks to protect the welfare of the child, but what about the welfare of the family? Must not that be taken into consideration? Is the community not built up on families? He says it will be impossible for a judge to decide, if all things are to be taken into consideration. Why then did he vote this morning for Clause 1 where there is just as much vagueness and even more? But now he says—and I say it with all respect to him as a lawyer of high standing—that the court will not be able to use its discretion if it has to take into consideration all the circumstances. Is the court not the upper guardian of children under our common law? I may say that since the cases of Cook and Calitz, Mr. Justice Davis, inter alia, said in the local court that in these cases the interests of the child will always be paramount. Why then bring about the change? And after Mr. Justice Van den Heever of the Free State had gone into the intricacies of the legal problem, he said that the tendency was to place the interests of the child first. That was also laid down by Mr. Justice Feetham in a recent case, which has not yet been reported, and in our local court it was also laid down recently that he interests of the child come first. Does the hon. member for Jeppes want to upset the family life? If this proposal of hers is accepted, it will conflict with the public interest. I am supported in my remarks by Prof. Pont. The husband’s say is equal to that of the wife. It is only in relation to third parties that he has the greater say. But as far as the children themselves are concerned, the parental authority of the mother and of the father is equal. But where action is taken outside the family circle in the interests of the child, the father has the greater say. Will the hon. member deny that that is the case in terms of our common law? Prof. Pont says—

I should like the Committee to note the words, “the remedy is worse than the ailment”: The hon. member for Jeppes always likes to tell us what is done in England and in other countries, and she wants to make us believe that our legal system is not adapted to modern circumstances, that we have still got a barbaric legal system. That is not so. She knows that in the Pearl Insurance case the Privy Council said that our common law was a living law which has under all circumstances adapted itself to modern conditions. The hon. member is always attempting, however, to make us believe that we are still saddled with a backward legal system. The hon. member is altogether wrong. I just want to quote a further passage to show what Prof. Pont says in connection with other countries—

That is just what the hon. member for Cape Western emphasised. Does the hon. member for Jeppes want to suggest that when such an application is made to court where the mother asks for the custody of the child, it will all be done in an amicable spirit? If the mother is given the right to go to an attorney and to have a number of sworn statements served on her husband and to make application to court, and the husband goes to his attorney and has a number of sworn statements served on his wife, and they then come before the court, does she think that everything will be settled amicably? That is not the case, and that is the reason why we are opposed to this Bill as long as it includes that danger. [Time limit].

The hon. member for Gordonia (Mr. J. H. Conradie) made an appeal to me to explain my position with reference to his amendment to this clause. My difficulty is that if the amendment is accepted and the mother has to apply to court, she is practically forced to make two applications. If she is in the unfortunate position that she is living apart from her husband, then according to his amendment, as I understand it, she has to make two applications. The hon. member is drawing a distinction here between various sections of women. Women who are divorced can appear in court, and women who do not live with their husbands can also appear in court, but in the latter case, she must first prove in court that she deserted her husband for sound and proper reasons. Her position is therefore that she must first prove to the court ….

No.

…. she must first prove to the court that she deserted her husband for sound and proper reasons; then only when her suitability has been proved, she can apply. This is a matter which causes me some difficulty. I listened very carefully to what I can only call the subtleness and hair splitting on the part of the advocates. I am speaking as an ordinary attorney. My work is usually not to explain the law, but to apply it. If the amendment of the hon. member for Gordonia is accepted, the position will be that if the wife still lives with her husband, she cannot apply, however great the difference between her and her husband, but if she deserts her husband, she can apply.

If they live together, do you want her to be able to bring a court case against her husband?

There may be cases where the husband and wife have a dispute in regard to the education or the school of the child, or a dispute of some other nature, and if they want to settle the dispute, then according to the amendment of the hon. member for Gordonia, they will be compelled to leave each other so that the wife may have the right to bring a case before the court.

In respect of those difficulties, I think we should in this case apply the wider interpretation. There is a great deal in the argument of the hon. member for Gordonia and other members, and I was almost persuaded to accept the amendment, but I feel that although there are objections, we should accept the clause in its present form because the amendment will cause even greater difficulties.

I have listened carefully to the lawyers who took part in this debate. Most of them are against the Bill itself, apart from the particular clause under discussion, because certain people will be given access to the courts, and that is wrong because those people are women. They surely will not suggest, as a final argument, that there is anything wrong with the courts, because we all believe—and if we cease to believe it we shall be in despair—that in the courts, in our ultimate difficulty, we can always get a fair verdict. Now, if we, as members of this House, allow that under this screen of legal wisdom and solicitude, there will be allowed to function that mentality that looks at women with jaundiced eyes and which says in fact that if a woman is wicked she is more wicked than a man is when he is wicked, we shall be taking a retrogressive step. That is what is behind the opposition to this clause. It cannot be understood by some male minds that women should achieve equality with men. We have heard the Minister state that he wished a comprehensive measure could be brought to the House, but a really comprehensive measure has not been brought before the House which would set aside at one stroke all the disabilities of women and which could finally solve the position. But this is certain: if that total contribution is attempted to be made we can be quite sure that the same opposition will be entertained to it which is entertained to this clause now, which, we all know, is a short step in the right direction. Again I wish to say that the legal argument, or shall I say, the criticism of the lawyers in the matter, is not founded in wisdom or in any sense of justice, or sense of consideration for children or for the family. It is founded only in the prejudice that some males have towards the place that women should occupy. I, as a layman, strongly appeal to this House that it should not see danger in granting women equality with men, and therefore it should not attempt to destroy the purpose of this Bill by arguing and voting against it.

The hon. member who has just sat down has failed to grasp the whole argument. I do not know whether he cannot understand what we said here. He pretends that we are against this clause just because we do not want to give the woman her rights. We said very clearly that that is not in the least the position. We wish to give the woman her rights as the hon. member for Gordonia (Mr. J. H. Conradie) suggested here. But what we do not wish to do is to break up family life in this way. In her zeal to remedy something which is wrong the hon. member for Jeppes (Mrs. Bertha Solomon) went too far in the opposite direction. She reminds us of the Scotchman who was teased all the time about wearing a kilt instead of trousers, with the result that instead of putting on decent trousers he wore Oxford bags which were much too wide. She wants to rectify an evil, but as the hon. member for Cape Western (Mr. Molteno) said, she goes much too far and creates a new danger. There are two principles we must keep in view in connection with this Bill. The first is the principle also considered by the hon. member for Jeppes, namely that when a wife is in that position where her husband has deteriorated, where he has deserted her, she should be entitled to go to court. But the second principle is that when we rectify that matter we should hot break up family life. That is what this Clause 2 does, as it is worded in the Bill. The hon. member goes too far in the opposite direction. I come now to another difficulty, namely the question of costs. The spouses are married in community of property. They live together and everything goes well except when they have a quarrel about something in connection with the children. The wife then institutes action against the husband. Whether the husband wins or loses the case he has to pay costs, because he is financially responsible. That is wrong. Instead of them using their money properly it is wasted in litigation. It may be a lengthy case and the husband may eventually win, but still he has to pay the costs. He and his children will suffer. Now the hon. member for Germiston (Mr. Payne) endorses our point of view that this important question should not be treated piecemeal. We plead with the Minister of Justice that his legal advisers should be employed to draw up a comprehensive Bill in connection with the whole legal position of the wife. We object to the two members on the opposite side proposing piecemeal legislation containing many dangers and many things of all kinds which should not be there. In this case the second error will be worse than the first. We will create more difficulties. What also struck me is that the hon. member for Jeppes and the hon. member for Parktown (Mr. Stratford) are now, when it suits them, using the same argument we strongly pressed the whole morning. I argued here this morning that we cannot expect the court to give a decision on vague principles like the education of a child. I said over and over again that we should give the court a principle on which to decide, but those hon. members could not assist us. This afternoon, however, they say that this amendment will demand that the court should decide something without a firm principle being given to the court on which to decide. They say that we cannot expect the court to decide whether there is a good reason for a husband and a wife to live apart. How can they use that argument, apart from the fact that they themselves this morning denied the validity of the argument? Is the court not called upon daily to decide whether or not a judicial separation order should be granted as between husband and wife? The wife tells the court that she can no longer live with her husband, and the court has to decide whether there is a reasonable ground for an order of separation a mensa et thora. The court has to judge, and we know that a whole series of principles have been laid down according to which the court decides. That is done in the courts daily, and that argument simply does not hold water. The hon. member for Gordonia’s amendment is quite clear, that when the court thinks that the wife has reasonable grounds for living apart from her husband, she will be entitled to apply, as provided in art. 2. As I say, the court almost daily decides cases of judicial separation, and we cannot say that that is something which is too vague for the courts to determine. The hon. member for Swartruggens (Mr. Henny) also had that difficulty. But it is something often done in the courts and a whole series of principles have been accepted as being grounds for granting an order of judicial separation. The hon. members who proposed and supported the Bill quoted many cases of husbands who drink and do wrong. Well, those are matters which are often accepted as sufficient reason for granting orders of judicial separation, and in such cases the wife will be able to apply to court. But why did those hon. members not reply to our arguments and questions?

We have already replied twice.

Only after we directed repeated appeals to them. When an amendment is proposed the proposer of the Bill should rise at once to say whether he or she accepts the amendment or not, and must give reasons. But we had to plead repeatedly before our arguments were replied to. The hon. member ought to be thankful to us for trying to improve the Bill. Our whole argument is founded on the fact that this measure is honeycombed with difficulties and weak spots, and that it will cause a tremendous amount of difficulty in the courts. We are trying to save the position as far as possible, and to rectify the Bill as far as possible, in case it is passed. The hon. member should be thankful for the amendments proposed by us. We are trying to make something of the Bill and to rectify what is wrong, without doing harm to family life in South Africa. [Time limit.]

The hon. member for Swartruggens (Mr. Henny) and also the hon. member for Jeppes (Mrs. Bertha Solomon) said that if Clause 2 were amended the pith would be removed from the Bill. That is not so. The pith of the Bill lies in Clause 4 and not in Clause 2. The principles according to which judgment was given in the past are altered in Clause 4. But the right which is given to the parties to go to court is contained in Clause 2. Clause 2 says in the first place that in the case of an action for divorce, restitution of conjugal rights or a judicial separation, the wife can go to court.

She has that right now.

Yes, she has that right now, but according to this Bill the interests of the child can be put first. My amendment also gives the mother the right to go to court if it is impossible for her to live with her husband, and the court in its discretion is of opinion that there is reasonable grounds for her living apart from her husband. She can then go to court and the court will firstly consider the interests of the child. The hon. members cannot argue that Clause 2 is the soul of the Bill. Apart from that I just want to tell this Committee that we should have regard to the fact that a great jurist outside is also opposed to this Bill. In his article Prof. Pont continues to say the following—

I will revert to this point later—

Then we hear that the hon. member for Parktown (Mr. Stratford) and other hon. members on the other side say that the most important aim we must keep in view is the interests of the child. But what about the interests of the whole family?

He said that that was the object of the Bill.

court. It simply meant that the mother tongue of the child was given the preference in this case. Whether his home tongue was English, Afrikaans or a native language it was not a question for the court. Consequently, I want to support strongly the amendment of the hon. member for Gordonia (Mr. J. H. Conradie). I have had considerable experience of such quarrels, and it is unnecessary to make it possible for these quarrels to be taken to the court. The court will only cause greater friction, while the matter can easily be settled between the parents, when it is explained to them.

Can the hon. member inform me what this has to do with the clause?

There is surely no country in the world where women are more highly respected than in South Africa. We know that even when small differences arise between husband and wife, the fathers and mothers bear in mind the interests of the children, and we sometimes find that the church intervenes and solves these difficulties. It is a strange development for Afrikaners to want to go to court for such differences to be disposed of.

The hon. member may not now discuss the principles of the Bill.

I only want to say this, that in the event of such differences arising if the interests of the children receive first consideration the difficulties will be solved. Full provision has already been made for difficulties to be settled by the court. We do not want measures such as this to be introduced to disturb home life and to aggravate the difficulties.

I am as a matter of fact opposed to this provision of the Bill, because the hon. member for Jeppes (Mrs. Bertha Solomon) as well as the hon. member for Pretoria (City). (Mr. Davis) showed us the other day that they had drafted the Bill in this form because they consider that it forms a portion of what they describe as the emancipation of women. Their view is that the woman has a sort of back seat. That is the motive behind the Bill.

No.

To a great extent that is the case. She has posed here as the champion of the women in our country. She has intimated that she wants to restore something that the woman has the right to ask, and what is the motive behind it?

We have already explained that at the Second Reading.

As regards this provision, I am entitled to draw the attention of the hon. member who introduced this Bill to the fact that she stated that this provision will provide something to which the woman has not the right. On the previous occasion I pointed out that this legislation is liberal legislation. They took exception to that. The test here should not be whether it will contribute to the emancipation of women. I think that by this time the principle is generally admitted of equality between man and woman. But here the introducer of the Bill is meddling with the deeper relationship between man and woman, and I want to draw the hon. member’s attention to this point: Why is it that hon. members are so anxious to pilot this special amendment through, and I want to make an appeal to the hon. member. What is their motive? I shall tell you. It is because we feel that this provision will not contribute to a healthy home life. To our minds that is axoimatic and we want to make an appeal to the hon. member who hag introduced this measure to act very cautiously here. The argument that they employ is that these Bills are very conservative, but that it is a very good thing if you can at least anchor your family life in this conservatism as far as these Bills are concerned, because thereby there will be a sort of anchor to preserve family life. Family life means a great deal to us. Why does it mean so much to us? Because family life is the smallest organised unit in society. Unless you have the Christian and moral family, unless you ensure that the pulse of your home life is healthy and active, all your efforts towards the upliftment of society will end in failure. I am certain that the woman is not going to ask: What is the benefit that the Bill gives me in so far as it signifies to me the emancipation of women? No, what the woman will ask here is this: Will this Bill contribute towards the strengthening to a certain extent of that home life which is sacred to me as a woman. That is what we assuredly have against this Bill in this respect. I want to read to the House what Ina Boudier-Bakker has to say about the emancipation of women—and she is acquainted with this sort of legislation—

and then she says—

We desire that you should have a fine appreciation of the deeper relationship between man and woman. The matter of importance is womanliness, but not mock manliness. It is not a question of domination on the part of the man over the woman. It is only a natural division of functions, to which the woman is born in the one case, and which on the other side, is the vocation of the man.

There is another amendment that I want to propose in the Afrikaans version which does not appear in the English version. Throughout the Bill use is made of the terms “guardianship”, “care of children,” and “maintenance of children”. It is my intention, if the amendment is accepted, to propose that alterations should be made elsewhere as well. This also applies to the title of the Bill. One wants to preserve the legal terms in their purity. The word “guardianship” is used—it is not an unknown word—and in English and Afrikaans there is often a difference in the legal terms. For instance, in the long title reference is made to “the law with regard to guardianship”. The Afrikaans text reads “Om die wet betreffende voogdyskap te wysig”. But no Bill is being amended here. The common law is being altered. “Common law” is also “law” in English. In Afrikaans the term is “gemenereg”, not “gemenewet”. The same applies to “guardianship”. There are two terms “voogdy” and “voogdyskap”. One must decide which of the two is going to be used. The two words have not the identical meaning. We have only one translation of legal terms in English and Afrikaans, and that is Van Zyl, Steyn and Beyer’s English-Afrikaans dictionary. In that “guardian” is translated as “voog” and “guardianship” as “voogdy”. In English one talks about the “guardian’s fund”. In Afrikaans we have the “voogdyfonds”. You do not talk about “voogdyskap”. In this Bill the word “voogdyskap” is used. I have studied the matter in order to discover which is the correct word. I have consulted Van Dale’s big dictionary, the sixth edition. The matter is dealt, with there. A difference is drawn there between the words “voogdy” and “voogdyskap”. Van Dale says that “voogdy” is the capacity or power of the guardian. Then we come to “voogdyskap”. That means the position and status of a guardian. It is a general term that is used in connection with the whole conception of guardianship. It will be seen that “voogdy” signifies the authority or capacity of the guardian. “Voogdyskap” is the position and status of the “voog”. Consequently, in this measure if we wish to be correct, we should not refer to “voogdskap” which is the broader and more general term. The position and status of the guardian is not intended here. What is intended is his authority or capacity as guardian. Accordingly, I believe that we ought to use the word “voogdy” in the Bill.

At 4.10 p.m. the Chairman stated that, in accordance with the Sessional Order adopted on the 25th January, 1945, and Standing Order No. 26 (1), he would report progress and ask leave to sit again.

House Resumed :

The House thereupon proceeded to the consideration of Government business.

I move—

I second.

I want to appeal to the hon. the Minister to make it ten sittings instead of five. In this case it is a serious matter. Rights are being taken away, and I think it is no more than just that the people concerned should have a reasonable period. Consequently, I want to ask the Minister to make it ten sitting days.

It is usually only five days, but I am prepared to make it ten.

Motion, as amended, put and agreed to.

As the Minister of the Interior is unable to be present owing to indisposition, I want to move, as an unopposed motion—

I second.

Agreed to.

I move—

This is a Bill for the amendment of the Anatomy Act which is a cog in the wheel in our system of medical education. The study of anatomy, which involves the dissection of the human body, is fundamental in medical training, and it is therefore necessary for the State in a country where provision is made for medical training to set up arrangements so as to ensure that bodies will be available for dissection under proper conditions and subject to proper safeguards. In this country we passed our Anatomy Act in 1911, when the first medical school was established in connection with what was then the South African College and is now the University of Cape Town. In the Anatomy Act, which has been amended in certain minor respects since 1911, the necessary provision is made for safeguards in regard to this matter, and apart from the conditions laid down in the law itself, the law provides that in regard to any school of anatomy proclaimed as such by the Minister, there functions an inspector of anatomy appointed by the Minister, an inspector who is entirely independent of the school and who is there to see that the law is carried out and that everything is done properly. One does not lightly change the Anatomy Act. Almost two years ago one of the inspectors of anatomy drew our attention to the fact that certain amendments appeared to be necessary. The whole matter since then has received the very fullest consideration. We have consulted the Law Advisors, the Department of Public Health and various inspectors of anatomy, the various medical institutions providing for the training of doctors and have also obtained information as to the procedure overseas, and as a result of that this Bill is now presented to the House. The House has before it a memorandum which explains in detail the provisions of the Bill, clause by clause. On that account it is only necessary for me to summarise what this Bill will effect. There are three main changes that we are setting out to achieve in this Bill. In the first place we want to provide that a school of anatomy may make available anatomical specimens to hospitals for use in the training of nurses. I think hon. members will appreciate that it is necessary that such specimens should be available for that purpose. At the present moment no anatomical specimen may be passed out of a school of anatomy. Of course, we have always had to use such specimens, but hitherto they have been obtained by inportation from overseas. Recently that has been impossible, and so it seems appropriate that we should allow our own schools of anatomy to provide specimens for that purpose. The necessary provision for that is laid down in the latter part of sub-section (1) (a) of this Bill, and it will be seen that any such action is in each individual case subject to the Minister’s approval. Then in the second place we seek to make it possible for a medical school to retain parts of bodies as demonstration specimens. That is essential for teaching and for research, and is part of the procedure, I should think, in every medical school in the world. It has been carried out in South Africa in the past, but some doubt has been raised as to whether it does fall strictly within the terms of the present law. In this Bill we seek to make it quite clear (the relevant clause is Clause 3) that such specimens may be retained by a medical school. I may say that in regard to all these points that I have mentioned, what we are proposing here is fully in accord with oversea practice. Then, Sir, there is a third new provision in this Bill, and that is to be found in sub-section (1) (c). It sometimes happens that people bequeath their bodies after death for use in medical schools. Our Anatomy Act, as at present drafted, does not cover that particular procedure, and it is necessary to make provision to do so. So this clause is proposed here for insertion, it being laid down that in such cases the inspector of anatomy will be empowered to control the use of bodies bequeathed in that way. That is done, as I have said in (1) (c), and (1) (b) and Section 4 is consequential. Those are really the three things that this Bill sets out to do. There are one or two minor clarificatory amendments in the first part of subjection (1) (a) and also in Section 2, but as the explanatory memorandum covers these points, I do not think I need delay the House by referring to them.

As I read the Bill, its intention is merely to make lawful the use of human bodies for the requirements of medical education as well as the education of nurses. As far as this is concerned, we have advanced to such an extent since legislation was previously adopted, that it must be clear to everyone that requirements have developed to such an extent that we should have suitable corresponding legislation. Especially in regard to the study of anatomy, I think it is highly necessary that for the training of our doctors and our nurses an adequate supply of material should be available, whether it is in the dissecting room or in the pathological section or in the training school for nurses. In every section portions of the human body are required, and unfortunately the legislation prevented us from making adequate provision. Consequently I believe that no objection can be raised against this legislation, and we on this side of the House do not offer any objection to it. We are grateful that the Minister has introduced the Bill in order to make available sufficient material for the training of our young folk.

Motion put and agreed to.

Bill read a second time; House to go into Committee on the Bill now.

House in Committee:

Can the Minister inform us whether an adequate supply of bodies are being made available for the different training schools. For instance, provision is made here that bodies can be bequeathed under wills. Can the Minister tell us whether sufficient bodies are available.

I understand that they are getting an adequate number, though sometimes there is a little difficulty. But on the whole they obtain their requirements.

Clause put and agreed to.

Remaining Clauses and Title of the Bill put and agreed to.

House Resumed:

The CHAIRMAN reported the Bill without amendment.

Bill read a third time.

I move—

This little Bill, Mr. Speaker, is intended to remove a difficulty which has arisen in connection with our prisoners-of-war. Our men our volunteers who went to the war, were attested on two separate systems of attestation. There was first the attestation for service anywhere in Africa, and that attestation was limited to the war period. They attested to do service anywhere in Africa during the war. Then there was a subsequent form of attestation for service anywhere, but that covered not only the period of the war but also six months thereafter. No difficulty arises on the second form of attestation, but in regard to the first, namely, service in Africa for the duration of the war, this difficulty has now arisen, that quite a considerable number of our men have been captured and are prisoners-of-war, and have been removed from beyond Africa and are now on the European Continent as prisoners-of-war. Most of them are still in detention. Some have escaped and are in Switzerland. A small number have gone through to England. The position of these people is this, that when the war is over their connection with the Defence Department and with our whole defence system will be broken. They will be either prisoners-of-war still in the hands of the Germans, or they will be in other countries; they will be liberated and will be in other countries. The war will be over, and they will be free men, but there will be no responsibility any more as far as the Defence Department is concerned, in regard to them.

Except to bring them back to South Africa.

Yes. We naturally will do our best, but there will be no control in regard to them, so that we can bring them back properly as part of our Defence Force. So this is a difficulty that was not anticipated, but has arisen here, and what is proposed in this Bill is this: that in regard to the first class of men, the men who attested on the Africa Oath and whose service will end at the end of the war, that their service will be continued for six months thereafter on condition that in the meantime they shall not, without their free will, serve in any combant capacity, but they will remain on service and will be under the military discipline established under the Defence Act, and will therefore come back to South Africa as part of the regular Defence Force. It will give us a control over them whilst they are in Europe as free men liberated after the war, and it will give us time to bring them back with our other men in due course in the six months after the war, during which we think it will be possible to bring them back. The whole idea of the Bill is in the interests of these men; it is to look after them properly, and although they will be technically free and will no longer be part of our Defence Force, to treat them just as we are going to treat the rest of our men, to look after them and to bring them back, the condition being that while they are technically in the Defence Force there will be no compulsion of service by them as combatants. The object is to maintain proper discipline over them and to give them the same treatment as is given to our other men. That is the object of the Bill.

There is more than that in the Bill.

Nothing more is intended. That is all that is intended, to protect the interests of these men and not to let them run loose and wild without any responsibility on our part for them any more. That is the only intention of the Bill.

If the Bill were as innocent as the Prime Minister makes out, this House would certainly have no difficulty in accepting it. I think he will forgive us if we read into the Bill a little more than he has stated. The Bill will, in the first instance, place those troops who have been taken prisoner and who are now free, under discipline. There can be no objection to that. But, unfortunately, the Bill suggests that those persons who were prisoners of war and are now free, have already been in such military service for a considerable period. The hon. Minister of Defence is accordingly making this Bill retrospective from the 1st June, 1944. I believe that more or less covers the period of Tobruk. Therefore the Bill does not merely apply to a handful of South Africans, but it applies to thousands who fought amongst other places at Tobruk. What does the Rt. Hon. Minister ask this House to do? In the first place that the territorial boundaries should be extended. The larger proportion of these persons, with few exceptions, have taken the red oath. They signed on to fight as far as the borders of Africa and no further. When they were captured they were taken outside this territorial area. The Bill asks in the first instance that this territorial area should be extended for them. Those who took the red oath were asked to sign the blue oath voluntarily, and then they could be employed outside Africa. But those persons, many of whom signed the red oath only, are now outside Africa. I Understand that a number of them are already in London. Under the Bill, they are being placed in the position of people who have signed the blue oath? The voluntary principle disappears entirely. This is an important matter that the Prime Minister is asking us to approve. Here in South Africa the Prime Minister has always emphasised that this war would be fought with volunteers. If you look over the debates in this House in which the Prime Minister has taken part, you will find that he has continually emphasised that this war will be waged by volunteers. I do not propose to take up the time of the House to show how the Prime Minister, ever since 1939, has continually emphasised that the war carried on by South Africa would be fought by volunteers, and that no compulsion would be used. Now he asks us to accept this Bill, that makes for these people who took the red oath being put in the position of people who took the blue oath. If the Bill has another implication I would like to hear it. They are red oath people who would not have gone further than the boundaries of Africa. Under this Bill we are converting them into people who have signed the blue oath. That is the first point to which we raise serious objection. The second is the provision that the period of service for which they sign, their contract, is now being extended. The question is, what are all the other countries doing in connection with their people who are volunteers. What ought to be done? As the Hon. the Leader of the Opposition remarked by way of interjection: Bring them back to South Africa. These are not men who have taken the blue oath. Bring them back. Perhaps the answer to that may be, there is no shipping accommodation. My retort is that shipping accommodation can be made available. During the past few years hundreds of R.A.F. have been brought here to be trained, and a plan can also be made to bring South Africans home who are now on the other side. A few days ago the Prime Minister, in reply to a question by me, gave the numbers of persons who have already been discharged from the army, and I assume that a considerable number of them have returned from overseas.

Many of them are back on leave.

There are means of bringing these people back. Quite apart from the R.A.F., many troops are being transported hither and thither, and I cannot believe that since June, 1944, there has not been shipping accommodation to bring back a number of these soldiers. I should like to quote how the Prime Minister has continuously emphasised that the war would be fought with volunteers. Now we have in this Bill a curious provision—

That is to say, that amongst others the Tobruk men who took the red oath can be asked to take part in the war in a combatant capacity if they intimate their readiness to do so. Now I want to ask, whether serious misuse cannot be made of that provision?

What is the position? The Prime Minister has these people in his power. South Africa must look after them. He has not said where these people are, in what camps they are being kept and how they are living there. For reasons of his own he has not said that. But in any case they are there, and we must look after them. Now my fear is that measures may be taken to make the lives of these people so disagreeable that they will eventually elect to sign the blue oath. We can see with what difficulties these South Africans may be confronted. On the one side the Prime Minister is not bringing them back to South Africa. That is the least he can do in reference to men who undertook to serve within the limits of Africa. Now they are faced with this difficulty. They cannot return to South Africa because the Prime Minister is not bringing them back, and on the other hand they have only the choice of voluntary signing to do service again in a combatant capacity in any part of the world. I can understand that life can be made so unpleasant for them that they will be quite willing to drop their volunteering and simply sign the blue oath. We recall the circumstances of South Africa and the sort of compulsion that was exercised on people to take the blue oath. I should like to know from the Prime Minister how many of these people have voluntarily asked since June, 1944, to resume combatant military service. It would be interesting to know how many of them have taken the blue oath. I hope that the Prime Minister will take the House into his confidence and provide this information. But I can visualise circumstances under which these men would say that they would prefer to go and fight. They may have even to “peel potatoes” as hard work and humiliating work is often described in the army. I can well understand that when they are enabled to return the circumstances are made so difficult for them that out of despair they would rather take the blue oath. Knowing the feeling that exists in South Africa, the Prime Minister ought not to come with a Bill of this nature. There are different measures that he could take to maintain discipline. If that is all that he contemplates, there are other and safer methods that may be followed. He does not need to introduce a Bill in these terms to safeguard discipline. The Prime Minister knows the feeling in South Africa; he knows that that feeling is much stronger here than in other countries. He has seen what happened in Canada, where many people are almost as imperialistic as our Prime Minister, where you do not have the strong dominating republican feeling that you have in South Africa, where you have not that strong feeling for separation from Great Britain such as you have in South Africa. Even in Canada, however, there is at the moment a big difference of opinion on this point. So strong is the feeling that the Minister of Defence lost his seat, and the Prime Minister there, as I understand it, is on the point of going to the country on that question. If this happens in Canada how much more should the Prime Minister here not keep his eyes on South African soil and take into consideration the feeling in our country. We were and are opposed to participation in the war. The Prime Minister then said: Then I am going to carry on the war with volunteers. He placed little reliance on that. He did not emphasise very much that our country was obliged to pay for volunteers. No, there are other measures that he can devise to preserve discipline. It is not necessary to make things difficult for these people so that eventually they will have to sign the blue oath. I understand there is already a large number of them, and I can imagine that when they are sitting there month after month and we refuse to bring them back (although it is our moral obligation to do so seeing that they only took the red oath) later they will feel compelled to take part in the war again in a combatant capacity. This Bill incorporates a measure of compulsion to go and fight. It is not only a few people who are affected by it, but thousands and thousands of South Africans are involved. I should like to bring up some amendment to the Bill in the Committee stage, but in connection with the passing of the Bill I find that if you want to bring amendments it is necessary to knock the whole bottom out of the Bill. If expression is to be given in the Bill to our point of view, it cannot be put right by way of amendment. Accordingly I move—

That is in the Bill.

It is not. Our opinion is that provision can be made for discipline in another manner. The Minister says that our proposal is contained in this Bill, but if he will read our amendment again he will find that that is not the case. Under disciplinary provisions that the Prime Minister proposes, the men must do military service. That is why he has made it of retrospective effect, for some of them have performed such service since June, 1944, and he now wants to have that confirmed. We want to lay down that they should only do military service in conformity with their original oath, and not military service of any other sort. In other words, we feel that they must be brought back to South Africa. If our motion is accepted and a Bill drawn up accordingly, then these people will have to be brought back as quickly as possible. We shall assist the Prime Minister in the Select Committee to make provisions to establish that discipline that he wants, but which shall apply to the people outside military service. Those are the few points that we want to make in connection with this Bill. In the first place, the Bill is enforcing something that does not appear in these people’s contracts. He practically makes them take the blue oath, but they have signed the red oath for service in Africa. In the second place, the Bill prolongs their contract of service for six months after the war. That means that this Bill is violating their contract that they made by prolonging it. In the third place, the Prime Minister wants, through this Bill, to place these people in the position that morally they will feel compelled to join again in a combatant capacity, something that perhaps they never previously intended to do. I move.

I second the amendment On the declaration of war the Prime Minister gave us the assurance that he was going to carry on the war with volunteers. At the beginning there was an influx into the army. We will accept that those persons joined up out of their own convictions, but at the same time it happened that we found that certain measures were employed to influence persons indirectly to go into the army. We have experience of pressure having been exercised on the men. Where men were employed in business certain employers who were exceptionally loyal made it impossible for physically fit men and compelled them to join the army. With these facts before us, the general public are disturbed about this measure. The words “combatant units” appear here. We should like to have the assurance and the public would also like to have it, that these persons will not be employed to fight, possibly against Japan. The experience is also there that those who signed the red oath were detained up North after Africa was cleared of the enemy. Pressure has even been exercised to induce them to sign the blue oath. They were unable to obtain leave, though those who had signed the blue oath were granted leave and could go home before they were taken overseas. Bearing in mind those facts we are nervous about this measure, because the word “combatant” appears in the Bill, and we have not the assurance that those persons who have not taken the blue oath will not be placed under indirect pressure or given such forms of work that it will be virtually made impossible for them to refrain from taking that oath. The hon. member for Moorreesburg (Mr. F. C. Erasmus) has quite rightly quoted what has happened in America. I here want to say that in South Africa a different situation exists. Here we have had the republics that were conquered, and it is not everyone that feels enthusiastic about the war. Even amongst those young men who are serving in the army there are some who are there just for one big reason, namely, it is starvation that brought them there. We know of measures which have made it impossible for them to follow any other course.

What percentage is that?

I can speak from experience. I went to Pretoria with young men to find employment for them, and what was the question that was put to them? “Where is your certificate?” And if the young fellow did not have a certificate, he was simply told to go and join up. No further opportunity was given him to earn his daily bread. It is because we have had that experience and because we have no assurance regarding what is intened to be done with those men who will be taken up in combatant military service that we are uneasy over the men—of whom a great proportion are prisoners-of-war from Tobruk—who have only signed the red oath. They are overseas, and they are now being treated on the same basis as men who signed the blue oath. No distinction is being drawn between them. They are being dealt with on the same footing, and they have refused to sign the blue oath. Thousands of them have refused. For that reason I am seconding the amendment of the hon. member.

If the Bill envisages what the Prime Minister has informed us by way of reply to interjection—and I accept that as far as the Prime Minister is concerned that is his intention—there would have been no objection to the Bill. If the soldiers are in Europe and their period of service has expired, we cannot just leave these people there. They must remain under military discipline until they are brought back to South Africa. We have not the slightest objection to that. If the Bill had only made provision for this, then we on this side of the House would have offered no objection. But the Rt. Hon. the Prime Minister must give attention to the matter as it has been aired by the two members on this side of the House, because it is clear that the Billl is capable of another construction and that it can be used for an entirely different purpose. I do not want to repeat the arguments that have already been used. I only want to focus the Minister’s attention to the last paragraph on Clause 2—

In this Bill no definition is furnished of “military” service. What does it embrace? Let us assume that combatant service signifies service when one is carrying arms. Then it means that these men cannot be obliged to perform military service when that involves carrying firearms, but they can still be obliged to do many other things that are regarded as military service. They can, for instance, be employed to dig trenches. What happened in the case of our non-European soldiers who were recruited as members of the army? The Prime Minister gave this side of the House the solemn assurance that non-European soldiers would not be employed in a combatant capacity. What happened subsequently? We are given to understand that not only coloured men but even natives were used as gunners. The hon. member for Springs (Mr. Sutter) who is sitting over there knows all about it, because he trained them. Those natives went into the fighting line to carry shells and to serve the guns. In every respect they were alongside the combatant soldiers in the front line, except that they did not actually carry rifles. What is the difference now whether they go into the front line to serve a gun or carry a rifle? The natives did not carry any rifles, but they performed military service, which boils down to this, that they took part in the fight because they had to carry shells into the front line. The people who refused to take the blue oath are largely comprised of men who were taken prisoners of war at Tobruk. I think the Prime Minister will agree that these people deserve to be allowed to come back to South Africa, and under this Bill they may be obliged to go into the front line, except that they cannot be compelled to carry arms, and they will have to face the same dangers as the combatant soldiers. That is possible under this Bill. Now the Prime Minister ought not to tell us that this is a bogy that we are producing, because this sort of thing has already happened in connection with our non-European soldiers. They are still serving in that sense in a combatant capacity, notwithstanding the solemn promises that have been made here. Consequently I hope that the Prime Minister will realise that the argument employed by the hon. member for Moorreesburg (Mr. F. C. Erasmus) is reasonable. We shall assist him to place a Bill on the Statute Book so that he can maintain control over the people who were captured at Tobruk, or wherever it may have been and who, if this Bill is not passed, will literally not be under any control. We realise the necessity for this. But there should not be any provisions in such a Bill that will expose them to the possibility of again being sent into the front line if they do not go there of their own free will, and that is made a possibility under this Bill. Then I would just say this.

Even when regarded from the viewpoint of the Prime Minister, if there are men who have earned the right to return to South Africa, it is those men who were captured at Tobruk. Although they did not share our feelings about the war, they went to fight for their convictions, and I say that those people who were captured at Tobruk are people who as a matter of fact, went through hell during the war. If the Prime Minister is grateful for what those men have done for him in this war effort, then it is his duty to bring them back to South Africa without delay. This Bill provides that he is not required to bring them back until six months after peace, and that he can oblige them to do military service for six months after peace has been concluded. In other words, pressure can in the meantime be exercised on them to make them take the blue oath, and the Prime Minister will be able to keep them in Europe in a fighting capacity until six months after the war. Is that fair? Is it not possible to bring back these few thousand men to South Africa? I accept the fact that a large percentage of these men are already at large in Italy. The only people still remaining are those who have been sent to Germany. The Prime Minister will be able to tell us how many thousand they are. I understand that there are not more than a few thousand in France, England and Germany who are affected by this Bill. Why cannot they be brought back here immediately, and why should they have to remain there, if necessary until six months after the war? The Prime Minister will forgive me when I say that we know what has happened with a large number of Union soldiers in North Africa who would not take the blue oath to go and fight outside Africa.

The period for which they joined up, whether it was three years or four years had not expired; my information was that those men who declined to take the blue oath were in the main held back in the desert, and that in that way pressure was exercised on them until, in despair, they took the blue oath. The Government had refused to bring them back to South Africa at a time when the blue oath men were coming back here on leave. Those who refused, however, were kept back in the heat of the desert.

Who told you that story?

The hon. member for Pretoria (East) (Mr. Clark) throws doubt on what I am saying. I do not hold it against him that he does not know about this, because the soldiers have learned from experience that when they have difficulties they should not go to the supporters of the Government. It does not help them at all to communicate their complaints to those members, because they do nothing about them. The hon. member for Pretoria (East) would naturally rather detain these men in the North, even if the war is over. He would also do everything in his power to victimise them, should they refuse to take the blue oath. I do not think badly of him for not knowing these things. I mention them here as facts, and if the hon. member will take the trouble to make enquiry he will discover that life was made unbearable for those people, so unbearable that they eventually took the blue oath.

My son was there.

Did he take the blue oath?

Yes.

Then he does not fall within the class on whom pressure was exercised.

He was on duty with the other fellows.

Then he could not have been with those who refused.

Since when have you become so concerned about our soldiers?

From the very commencement we have stated that we were opposed to the war, but we have always respected those men who went to fight for their convictions.

You call them hanskakies.

Nevertheless we did not call them skunks in khaki.

The hon. member for Klip River (Mr. Friend) did not go and fight, though even now he is strong enough to go and fight. He sits there beaming and blooming with good health, and if the Prime Minister who is already 75 years of age still smells an opportunity to go and fight then the hon. member for Klip River, who is sitting there florid, fat and overfed is surely not too weak to have gone and done his bit.

No, he has no excuse. It will be advisable for him rather to hold his peace on these matters. We are prepared to assist the Prime Minister in achieving, through this Bill, the object that he has actually in mind, but then we must be certain that the Bill is so drafted that it cannot be so interpreted that pressure may be exercised on these people and they are being victimised. There can be no objection to the acceptance of the amendment moved by the hon. member for Moorreesburg (Mr. F. C. Erasmus). The Bill can be referred to a Select Committee and within a week the Prime Minister can again have it before the House, and then we can adopt it with suitable wording.

I can see what the intention of hon. members opposite is, and I also realise the difficulty that they feel over the phrasing of the proviso, namely, that it will be possible to exercise a certain degree of indirect pressure on prisoners-of-war to make them do further service. There is not the slightest intention on my part in that direction, and I do not believe that the Defence Department have the least intention of doing that. Our only object is to help these people by allowing them to remain under military discipline in order that we may bring them back here properly and as quickly as possible. I notice that another interpretation may be given to the proviso. Both the hon. members who spoke on this matter have stated that they do not object to discipline under the Defence Act being made applicable to the men concerned, so that we can get them back in a regular manner. But they ought not to be exposed to possible dangers; they should not be compelled to perform any military service of any danger; and I am quite prepared to alter the proviso in that sense and to draft it to that effect. If the hon. member for Moorreesburg (Mr. F. C. Erasmus) will follow me, I shall give him an indication of how we can draw up the proviso. I shall not give the prisoners of war the choice, because the hon. members say that pressure may be exercised if they get the choice. We can frame it in this way—

That takes away the choice.

I shall accept that.

Instead of “non-combatant service” the reference is here to “no military service of any sort.” That is what we had in mind. The legal draftsman thought of putting it in this way, but that might be open to the other interpretation.

Will you place it on the Order Paper in that form if the Second Reading is agreed to?

Yes, if the Second Reading is agreed to I shall give notice of such an amendment for thé Committee Stage.

In view of what the Rt. Hon. the Prime Minister has now stated, I beg for leave, with the permission of the House and of my seconder, to withdraw the amendment.

With leave of the House, the amendment was withdrawn.

The motion for the Second Reading of the Bill was put and agreed to.

Bill read a Second Time: House to go into Committee on the Bill on 12th February.