Mr. Speaker, I move without notice—

Mr. Speaker, I merely want to state on behalf of the official Opposition that we appreciate it very much that this matter is being referred to a Select Committee before Second Reading. We thank the hon. the Minister for doing this.

Question agreed to.

Mr. Chairman, hon. members will recall that the official Opposition had difficulties with this Bill, particularly with clause 1. Our main objection was based on our fear that somebody who had been arrested and who, in the normal course of events, would have been brought before a court of law within 48 hours, would now, with the extended period for which this clause makes provision, not appear before court within that period of time, owing to illness or other reasons related to his physical condition. We were worried about the question whether a court of law would be able to make a decision in this regard, and we were also worried about how that decision would be made.

I am somewhat disappointed to see that the hon. member for Pretoria West, who opposed our point of view, is not in the House now. Unfortunately, the hon. member for East London North is also not here at the moment He also argued against our point of view, but he did so for different reasons. What worries me about the hon. member for Pretoria West is the fact that he is a trained lawyer, someone with practical court experience. Yet he simply evaded the arguments that were put forward by hon. members on this side of the House. He did not deal with those arguments at all. He tried to create the impression that we in the official Opposition did not have faith in our courts of law. I want to state quite clearly that we do have faith in our courts. We also accept that to err is human. We also accept that there are superior courts, such as appeal courts, and that the legal process should take its normal course. Therefore, for the hon. member for Pretoria West to make such an allegation, is not justified. Furthermore, he based his argument on a premise we did not even raise, that being the ability of the court to make a decision about whether an accused can appear in court or not.

As for the hon. member for East London North, he perhaps does not have all that practical court experience. He merely argued that he could see nothing wrong with the proposed new provision in terms of clause 1. However, he obviously had second thoughts, because he placed an amendment on the Order Paper, in spite of the fact that he had stated earlier that he had no difficulty at all with the clause as printed. According to the amendment he placed on the Order Paper it seems that he, too, is in favour of the decision provided for in clause 1 to be supported by a certificate of a medical practitioner. The nub of the matter is obviously this. We are concerned about two separate matters. Firstly, there is the case in which an arrested person is not brought before a court because of physical illness or some other physical condition. At that stage a decision has already been made. That decision has been made by somebody. In most instances that decision would have been taken by the investigating officer.

The second matter is the one that worries us and that is that when an arrested person appears before a court, the evidence is also placed before the court, and the court then has to decide whether the hearing is to be postponed, and, if so, to what date. The court also has to decide whether the accused is to be remanded in custody or is to be sent to a rehabilitation centre, to a hospital or to some other place of detention. It is as regards that second decision that the hon. member for Pretoria West has missed the boat, as indeed did the hon. member for East London North. What we want to see is that evidence should be placed before the court, evidence which will enable the court to decide upon the physical condition or the physical illness of an accused person. That is why we have said, firstly, that if the accused, notwithstanding his physical condition or illness, wants to go to court, he should go to court. That is the most important thing. The court should then have evidence before it enabling it to decide, in a judicial manner, on his condition. It is all very well for the hon. member for Pretoria West, and other hon. members who spoke, to say that the hands of the police are clean and that we need not worry because the police are not going to be saying or doing just anything they like. We must, however, make provision for extreme cases. When there is no problem, of course, there is no difficulty, but in the latest report of the Department of Police mention is made of 239 cases of police having committed acts of misconduct Just recently we had Press reports about the case involving Beeld and Rapport. These two newspapers were brought before the Press Commission and fined very heavily on the sworn affidavit of a secretary of the department So let us not bluff ourselves.

To meet the situation, Mr. Chairman, I therefore move the amendment printed in my name on the Order Paper, as follows—

This amendment tries to take care of the situation by deleting the words “in which the circumstances relating to the illness or other condition are set out”. I took advantage of the offer made by the hon. the Minister of Justice to place his officials at our disposal and had them draft the amendment. I think the amendment fits the bill up to a point. In terms of the amendment, at least, when an order is—

and that means any medical practitioner—

it can make such an order. What this amendment is therefore doing is to force the issue by making medical evidence a necessary factor. If, according to such medical evidence, the accused quite honestly and frankly has been beaten up by anybody, his condition not being due to natural causes but, in fact, due to such mistreatment, the medical practitioner will be able to report the circumstances to the court. The reasons for the accused’s non-attendance can then be examined.

What I have been saying up to now relates to actual improvements to the Bill itself. The amendment does not, however, go as far as we would like to go because we still think that the existing position, i.e. that the accused, in terms of the existing section 50(1), must be brought to court as soon as possible, in fact within 48 hours of an order to that effect being issued, should stand and that he should be released if he cannot be brought to court within that period of 48 hours. That is our attitude. If, in the light of this argument, the magistrate has to go to the accused and see for himself, that is, in our view, preferable to anything else. Let me therefore state our attitude very simply. We move the amendment because we feel that it will be an improvement on the existing situation and will, we trust, meet the case. In spite of anything that has been said, however, we hope that when an accused person, no matter how ill he is, wants to go to court, he can. That is what is paramount. We must remember that at that stage most of the accused are still undefended. They have no legal representation. It is not very often that when an accused still has to come before the court he has anyone to represent him. Secondly, to get someone to represent him within 48 hours is not something that can usually be arranged either. We must therefore bear in mind that we are dealing mostly with undefended people. So the courts, and therefore justice, should lean over backwards to assist the person who is in that position.

Mr. Chairman, in the absence of the hon. member for East London North I move the amendment printed in his name on the Order Paper, as follows—

supported by a certificate of a medical practitioner.

The matter was fully motivated during the Second Reading debate. We did not go as far as the official Opposition in our opposition to the clause as printed, but we do feel that there is a case to be made out for the amendment of the hon. member for East London North. The hon. the Minister has indicated that he is prepared to accept the amendment. There would appear to me, at first glance, to be a great deal of similarity between the amendment moved by the hon. member for Hillbrow and the amendment of the hon. member for East London North. The hon. the Minister can decide, however, which one he is willing to accept.

Mr. Chairman, I rise to support the amendment moved by the hon. member for Hillbrow. I hope the hon. the Minister will see fit to accept that amendment as during the Second Reading debate he indicated he would. In order to put the hon. member’s case perhaps a little more forcefully, I want to point out that it is not unusual for persons who are arrested to be injured in the course of being arrested. I have figures for the three years 1975, 1976 and 1977 of people who were wounded by the police while attempting to evade arrest Over those three years the number of people so wounded amounted to 927. It is, therefore, not an unusual occurrence at all. I asked the hon. the Minister during the Second Reading debate whether he would tell us what has happened up till now when someone was physically unfit and unable to be brought before court within the stipulated 48 hours according to the normal habeas corpus provision. The hon. the Minister replied that the magistrate would have to go to the hospital. I find it very difficult to believe that in every one of these 927 cases the magistrate went to the hospital. It is, of course, true that not every one of them would not have been fit enough to appear in court, but I should think that a fair number of them would not have been able to appear in court within the 48 hours.

In any event, Sir, the hon. member for Hillbrow has moved an amendment that goes part of the way to meeting our very strong objections to this clause, which we feel represents an incursion into the well-established rule of habeas corpus, the protection of the individual against the State. As the hon. member, however, has indicated, even if the amendment is accepted, as I hope it will be, I trust the hon. the Minister will understand that we nevertheless feel constrained to vote against the clause as amended, because although the hon. member’s amendment improves the clause we now have before us, the provision nevertheless interferes with what we feel was a better position, i.e. the law as it stands at present in our Criminal Procedure Act.

Mr. Chairman, I should very much like to know from the hon. member for Houghton what the position is now. The hon. member for Hillbrow has moved an amendment to the clause. If I accept this amendment, is it still the intention of the hon. member for Houghton to vote against the clause as such?

That is exactly what she said.

Thank you very much. I just wanted certainty on that. I was somewhat surprised, because I agreed with the hon. member for Hillbrow in principle. After he had put a question to me in this regard, I explained to him that there were such cases—and the hon. member for Houghton set out those cases very well. As she stated, cases do arise where the person sustains injuries when he is arrested, as a result of which he cannot appear before the court within 48 hours. The hon. member for Hillbrow argued that under those circumstances a medical certificate should at least be produced and that the court should not be placed in the position where it simply has to accept the word of the police and the prosecutor, whether by way of an affidavit or in any other form. I agreed with that. I then suggested that the hon. member submit his amendment to officials of my department, so that they could phrase it correctly for him. Allow me to say that it was not the task of my department in this regard to tell him what the amendment should entail, but to ask him what he had in mind and then to phrase it for him in a way that would be elegant, juridically correct, etc.

The hon. member for Mooi River moved the amendment printed on the Order Paper in the name of the hon. member for East London North. The hon. member approached me after the Second Reading debate and inquired whether the offer that applied to the hon. member for Hillbrow could be extended to him, enabling him also to make use of my officials to phrase his ideas. I replied in the affirmative.

I now find myself in the position of having to decide between the two amendments. In spite of the fact that the hon. member for Houghton has lent weight to the one with her charm, I must tell her that the amendment moved by the hon. member for Mooi River is to me juridically more elegant. I shall say why I hold this view. The relevant passages of the amendment moved by the hon. member for Hillbrow read—

I find no fault with that. That is precisely what we discussed in this House—

The question that vexes me is: Why should we submit a medical report if, in any case, we first have to convince the court that the person cannot be brought before the court? After all, the very purpose of the medical certificate is to satisfy the court that the person involved cannot appear before the court. The medical certificate serves the purpose, after all, of satisfying the court that the person is ill; a medical officer has examined him and in his certificate he has certified whatever he wishes to certify. That certificate is then placed before the court and then the court can say it can understand why the person involved cannot appear before the court within 48 hours. The court then orders the person involved to be brought before the court at a later date.

In terms of the amendment by the hon. member for Hillbrow, we first have to convince the court, apparently even before the medical certificate has been submitted to it, that the arrested person cannot be brought before the court. Now, why should one have two court sessions? Under the circumstances I am of the opinion that the amendment moved by the hon. member for Mooi River is a better interpretation of the discussion we had in the House. Consequently, and notwithstanding the charm of the hon. member for Houghton and with great respect to her, I prefer the amendment by the hon. member for Mooi River and I shall accept his amendment; not the one by the hon. member for Hillbrow.

Congratulations Bill, you have won, my friend.

Mr. Chairman, I must express my disappointment in the hon. the Minister of Justice. I had hoped that the hon. the Minister would rise to the occasion and rise above a little bit of party politics. Purely for the reason that the hon. member for Houghton had said that we would still record our objection, the hon. the Minister decided to adopt the amendment of the hon. member for Mooi River. Let me tell the hon. the Minister that our intention was merely to record our objection and not to call for a division. Our standpoint is that the existing position is better. The hon. the Minister questioned the hon. member for Houghton to find out exactly what she meant, and if it did not make any difference to him what she meant, he would not have asked her to tell him exactly what she meant. I am sorry to say it, but to administer justice in such a way comes as a great disappointment to me.

There is a great difference in merit between the two amendments. The mere fact that there is a medical certificate—this is what the hon. the Minister is inclined to accept at the moment—does not go far enough. I am sure that if our friends to my left would give this a little thought or if the hon. member for East London North was here, they would agree that ours is the better amendment for the very simple reason that the medical certificate can merely state that the accused is too ill to come to court. The court then has to postpone the matter. That, however, does not meet the difficulty. The court should know what has happened to the accused to prevent him from coming to the court. That is why our amendment reads “…in which particulars of the illness or other condition are set out…”. The hon. the Minister is prepared to accept a mere certificate from a district surgeon or some other doctor, but if the accused had been beaten up to such an extent that he could not come to court, the certificate would give no indication thereof. All the certificate has to say, is that the accused cannot come to court. The amendment which the hon. the Minister is prepared to accept, does not really meet the case. I therefore appeal to the hon. the Minister to rise to the occasion. All that we intended doing was merely to record our objection to the clause as a whole in the hope that the hon. the Minister would accept the amendment as we moved it. I ask the hon. the Minister to reconsider his decision.

Mr. Chairman, I can appreciate that the hon. members of the official Opposition are somewhat disappointed that their amendment has not been acceptable to me, but I think they are doing me an injustice if they argue that I prefer the amendment by the hon. member for Mooi River merely because the hon. members of the PFP have indicated that they are going to vote against the clause. That was of course not my motivation. I did put the question to the hon. member for Houghton, but merely because I found it strange and because it was one of the factors one had to take into account.

Why?

I cannot understand the thinking of the official Opposition. Surely they will agree with me when I say that when a person has been arrested, he has to be brought before a court within 48 hours. They will also agree with me that if a person has been injured, for example, or if, for some other physical reason, he is unable to do so, he cannot appear before a court. The prosecutor should therefore have the right to tell the court that he is not able to bring the person concerned before the court within the statutory period. The court must then indicate what has to be done.

During the Second Reading of the Bill the hon. member for Hillbrow agreed with me on these matters. I told him that I agreed with him and that I should also like a medical certificate to be produced. I think that is a shortcoming in the Bill as formulated at present. I also told him he could draft an amendment if he wished to. He did so, but he added a great many things which I have already debated this afternoon, and in my humble opinion my argument was correct. The hon. member has added certain matters to the question of a medical certificate, matters he did not even mention during the Second Reading debate. In terms of his amendment there now has to be an additional trial to ascertain whether the person concerned can appear before the court or not If the magistrate is satisfied that the person cannot appear before the court, a medical certificate has to be produced to that effect. Surely that is really a ridiculous accumulation of court cases. That is the reason why I do not want to accept the amendment by the hon. member for Hillbrow. What is at issue here is not the difference between the two opposition parties. If one of the other hon. members of the official Opposition had moved the amendment which the hon. member for Mooi River moved, I should have accepted that, too. I regard the amendment moved by the hon. member for Mooi River on merit as a better, more concise and more correct one. For that reason I am accepting his amendment.

Amendment moved by Mr. A. B. Widman negatived (Official Opposition dissenting).

Amendment moved by Mr. W. M. Sutton agreed to.

Clause, as amended, agreed to (Official Opposition dissenting).

Clause 14:

Mr. Chairman, I move the following amendments—

1. (1) On page 12, in lines 28 to 32, to omit paragraph (b);
2. (2) on page 12, in lines 33 to 35, to omit subsection (2).

Section 219 of the Criminal Procedure Act is a very simple one and reads as follows—

Following this there is section 220, which deals with admissions. My amendment purports to do two things. We are now dealing with admissions as opposed to confessions. I think hon. members know full well that a confession is in fact a confession of the entire crime of which a person is accused. It is, as the hon. the Minister knows, tantamount to a plea of guilty. An admission, on the other hand, does not go as far as a confession. An admission is merely an admission of a fact and is then used as evidence. We are dealing here with evidence of admissions which are made extrajudicially. In other words, it is not made to a court or a judge, but extrajudicially to the investigating officer or others. We are, firstly, asking that this provision be brought into line with the provision on confessions to which an amendment was made in 1977 whereby the magistrate to whom the confession is made, does not have to go to court to prove the confession; he merely has to hand it in. However, the interpreter, if an interpreter interpreted that confession, had to go to court. This is now changed. We have no objection to that because we have no objection to the interpreter not having to go to court. However, the principle contained in the proposed sections 219A(l)(b) and 219A(2) goes further. There the principle is incorporated in terms of which the rule of law as it stands, viz. that an admission must be proved to have been made freely and voluntarily, is now removed and the onus is now transferred from the State to the accused. When an admission is therefore made—I am referring to one made extrajudicially as well—it is regarded as prima facie evidence that the admission has been made voluntarily. The onus is now on the accused to rebut it.

The admission has been voluntarily made by that person.

In other words, there is a presumption.

No.

Yes, there is a presumption. The proposed section 219A(1)(b) reads as follows—

Read line 6.

Section 219A(1) reads—

It must be proved.

Who has to prove it, the person or the State?

I want to ask why we should have the proposed paragraph (b) at all. If it has to be proved, is it not mutually contradictory?

No.

It is, because if on the one hand one says that the State has to prove it, why does (b) say: “be presumed, unless the contrary is proved, to have been voluntarily made by such person…”? If the hon. the Minister is right, this clause contains an inherent contradiction and is therefore meaningless in law. I do not think that is his intention.

The onus is on the accused.

The hon. the Minister will see that in the proposed section 219A(1)(b) he has used the same wording as that in section 217(1)(b)(ii), viz.—

Section 217 deals with the admissibility of confessions. The hon. the Minister will know more than I—as I was not here in 1977—about the terrific arguments that took place in this House and the attitudes adopted by hon. members during the debate on the Criminal Procedure Bill. I want to refresh the hon. the Minister’s memory in this regard. I want to refer to Hansard, 25 March 1977, col. 4372, in which Mr. S. A. Pitman, then the hon. member for Durban North, said—

This was supported by Mr. Cadman of the then UP, who said (Hansard, 25 March 1977, col. 4373)—

Thus the official Opposition and the PFP as it was then were both opposed to the principle. But what the hon. Minister is doing here is precisely the same thing. He is now placing this provision in line with the clause on confession and he is also doing the same with regard to admissions. We do not think it is necessary to go so far. We shall support the provision which states that it is not necessary to get an interpreter to come to court to prove that he interpreted the admission that was made. But to now move the whole onus of proof onto the accused, is to bring back the whole argument that was opposed by both Opposition parties in 1977.

Mr. Chairman, I can understand the hon. member being opposed to the clause in principle, but what I cannot understand, is his proposal that subsection (1)(b) and subsection (2) be omitted. I do not know whether it would satisfy the hon. member if I were to delete them, but if it would in fact satisfy him, it would mean that an onus would be placed on the State in respect of admissions, which would greatly outweigh that placed on the State in respect of confessions.

†It means that a greater onus is placed on the State as far as admissions are concerned.

That is all right.

The hon. member says that that is all right. But there is actually an Act which makes it less of an onus on the State as far as confessions are concerned.

Why did you do it last year?

But that is why I am doing it this year. It is because it was not done for admissions. I said that in my Second Reading speech. I said that admissions had been left out. But admissions and confessions are twins, as the hon. member knows.

They are very different.

They may be different, but an admission is as near to a confession as Worcester is to Worcester. The hon. member knows that. The wording is exactly the same way as for confessions. Therefore I cannot see what the complaint is, and if I should accept the amendment, it would certainly truncate the whole law as far as admissions are concerned, whereas it already stands in the Statute Book as far as confessions are concerned. Therefore, for that reason I am not prepared to accept the amendment.

Mr. Chairman, I hate to enter into this argument between two learned members of the legal profession, but the logic of the hon. the Minister’s argument seems to be most peculiar. It seems to be peculiarly male, if I may put it that way. The hon. the Minister is surprised that we are objecting to the change in the law that he is proposing regarding admissions. Our objection, as has been eloquently put by the hon. member for Hillbrow, is because the onus of proof is squarely placed on the shoulders of the accused, if the hon. the Minister’s amendment is accepted. Why is he surprised that we object to it this year when the hon. member for Hillbrow explained it to him very clearly…

I did not object to the fact that you were objecting to the principle of the Bill.

The hon. the Minister said that he understood our objection to the principle of the Bill, but that he could not understand the reasons why we did so.

I could not understand why you wanted to oppose the Bill.

The reason is that we want to leave the law as it is so far as admissions are concerned. We do not want admissions to be brought into line with confessions, as introduced by the hon. the Minister when the Criminal Procedure Act was amended in 1977. We all objected to that change in regard to confessions. Obviously we are therefore not going to be pleased now that the hon. the Minister is making changes which bring admissions into line with confessions, on the same basis that we objected to, two years ago. Of course we should like the hon. the Minister to bring confessions into line with admissions. We should like him to reverse the situation. That is what we said in 1977 and that is what we are saying now. In other words, if the hon. the Minister did a bad thing two years ago, he certainly cannot expect of us to accept and approve of doing a further bad thing to another aspect of our criminal procedure in South Africa…

Two wrongs do not make a right.

Two wrongs do not only not make a right, but I think the first wrong should be corrected. That is what we are really saying this afternoon. This Bill places a big onus on the accused, and the change made to the procedure relating to confessions is very bad indeed in our view. It is more particularly so in the light thereof that it often happens that a person comes straight from detention with a confession and is then sentenced. He could not even change his plea at a later stage when he had legal representation and certain conflicts in law could therefore be shown. We therefore feel that this provision is making the law worse and not better, and that is why the hon. member moved his amendment.

Mr. Chairman, I wish to explain to the hon. member for Houghton that in actual fact this whole clause simply means that when a man makes an admission in writing before a Magistrate, one still has to prove in court that that admission was freely and voluntarily made.

Who has to do that?

The State must prove that the admission was freely and voluntarily made, and the accused can contest it in court that it was freely and voluntarily made. He can for example say that he was bludgeoned, coerced or bluffed into doing it. Hon. members can call it what they like, but the fact remains that the accused can bring that as a defence. The State has to prove that the admission was freely and voluntarily made. Only when the State has proved that the admission was made freely and voluntarily can the document be regarded as a document of admission. The Bill states that that document is then presumed to be the correct admission, unless otherwise proved. In other words, if the accused still wants to contest the document further by saying for example that he did not sign it, the onus is on him to prove it.

You must still prove that it was made voluntarily.

Yes. One still has to prove that it was made voluntarily.

It is a presumption.

Clause 14 states—

I shall read it to the hon. member again—

That is exactly how the law stands at the moment One still has to prove that that admission was freely and voluntarily made. If the accused has put that in writing, all one has to do is to prove that the admission was made free and voluntarily, then present the document to the court, and it goes into the record. It is not necessary to call the magistrate again to go through the whole rigmarole. The hon. member will know that this is shortening of the proceedings. One can now say that the document means what it states, unless someone can prove it to be otherwise. That is all the Bill says.

Mr. Chairman, I want to say, with all respect to the hon. the Minister, that it seems to me as though his interpretation of this clause is incorrect. I should just like to deal with this for a moment to try and analyse it. The first part of the proposed new section 219A(1) provides that it must be possible to prove with regard to any admission made, that it was made voluntarily. The exception is that when it was made to a magistrate, it is accepted that it was made voluntarily. That is how I understand the matter. Consequently we have an objection in principle to the second part of the provision in particular. Admissions generally made extrajudicially are in order, but the proposed amendment also provides that if such an admission is made to a magistrate, it is presumed to be in order and to have been made voluntarily. I do not know whether the hon. the Minister agrees with me in this regard. That, however, is how I see the matter.

Mr. Chairman, with all respect to the hon. member for Johannesburg West, I disagree with him in this regard. The question as to whether an admission was made voluntarily or otherwise can always be disputed, as is the case at present.

Yes, but it is a question of the onus.

The magistrate can present the document and then that document is prima facie evidence of admission, unless the document is disputed. I think we are in agreement on this point after all.

Mr. Chairman, it is clear that we have two different situations. The first is in connection with the extrajudicial admission and the second an admission that serves before the magistrate. Clause 14(a) states—

and clause 14(b)—

There is therefore an assumption. If the hon. the Minister would look at the book The Law of Evidence by Scoble, he will find on page 155 that—

He goes on to say—

He goes on to mention a host of decided cases.

Clearly the law as it stands requires the Crown to prove that it was freely and voluntarily made. We have two kinds of admissions, namely the extrajudicial admission and the one made judicially. Here we are dealing with the judicial one where the presumption is moved as was done with confessions. I think that is perfectly clear.

Mr. Chairman, I think the hon. member for Hillbrow is mistaken. In actual fact the whole of clause 14 deals with the document written by a magistrate.

†The whole proviso deals with it. The first part simply states the law as far as admissions are concerned, i.e. that an admission must be freely and voluntarily made. The Bill now states that if it is made in front of a magistrate and he puts it down in writing, it is presumed, on the mere production of the document, that it was freely and voluntarily made and that this is the admission. However, the accused can always attack the free and voluntary aspect He is always entitled to attack it. The onus is on the State at all times to prove that it was freely and voluntarily made. Even if it is made in front of a person of authority and he can attack it on the grounds that it was not freely and voluntarily made. The hon. member for Hillbrow and I know from practice that in spite of a written confession in front of a magistrate, one still goes to court and says that the accused was forced into the magistrate’s room, was beaten behind closed doors and threatened with words like these: “As jy voor die landdros kom, moet jy mooi praat Sou jy anders sê, sal jy weer ’n pak slae kry.” The confession is then made and written down in front of the magistrate. That then is attached in court The accused comes to court and tells that story. If the judge finds that that story is true, the whole document is thrown out That still applies now. However, if the magistrate has signed that document he need not go to court and go through the whole rigmarole that he usually has to go through. Usually he had to go to court and stand in the witness box to say that the accused was brought before him, that he asked him whether the confession was being freely and voluntarily made, etc. that is the only evidence he gave.

*The only thing we are doing here now, is to provide that the magistrate need not appear to give that evidence. We remove the need for him to do so in order to expedite matters. The accused may still attack a statement on merit if he feels that he has been forced to make the statement. However, if the magistrate has certified that he did make such an admission to him, that document is prima facie evidence that the admission has in fact been so made to the magistrate and that it has at least been made voluntarily to the magistrate. If this is disputed, he has to appear in court and the onus is on him.

Amendments negatived (Official Opposition dissenting).

Clause agreed to.

House Resumed:

Bill reported with an amendment.

Mr. Speaker, we are happy once again to be able to take part in a debate free from instructions from our Whips. We are delighted to be able to express—on the official Opposition side at least—our honest opinions on one of the most important and far-reaching provisions in law ever to come before this House. It is one of the most important provisions to face all legal practitioners, all officers of the court, all husbands, wives and children throughout the entire country.

We are now dealing with the Divorce Bill, a Bill which is the culmination of the work done and the recommendations put forward by a commission of inquiry. This kind of legislation deals with a grave problem. In answer to a question I put to the hon. the Minister last year he replied that, in 1976—the latest figures available—there were 10 850 divorces among the White population, 1 187 among the Coloured population and 292 among the Asian population. The figure for Blacks was not available. In connection with the divorce rate among Blacks, certainly as far as the Witwatersrand area is concerned, I can only assume it must be quite high. In December last year I tried to get a date for a divorce case in the Central Divorce Court, in Johannesburg. I was then informed that the court roll was overflowing and that no date could be fixed until May this year. That means that there was then a five months’ delay in the Witwatersrand Central Divorce Court Division, dealing with Black divorce cases. Meanwhile, we must remember that there are several courts sitting in that division every day.

We are now dealing with legislation which has been operative in South Africa for many years, legislation in terms of which adultery, desertion—both malicious and constructive desertion—one of the parties being declared an habitual criminal, and incurable insanity were accepted as the four grounds on which divorces were granted. Our system has often been criticized on the grounds that although the court might be aware of collusion between the two parties involved, divorces have nevertheless been granted. They were churned out at the rate of about one every two minutes by the divorce courts, with probably 150 divorces being granted in one morning.

I hold the record with a figure of three minutes and forty-six seconds.

I thank the hon. the Minister for giving us that figure.

Almost as fast as the pass law cases.

If both husband and wife are agreeable, i.e. if they have both reached all-round agreement, I think this is one of the easiest countries in the world in which to obtain a divorce under the existing system because everybody closes his eyes to the collusion that takes place. Because the divorce law has been operating for so many years in South Africa, and because such a large body of case law has therefore been built up on court decisions, case law dealing with almost any and every aspect of divorce, practitioners advising their clients have at least always known where they stood.

The commission has now sat, and I should like to pay my compliments to the commission for all the hard work it did, including the great deal of in-depth research into comparative law. Having done so, the commission came up with a brand new concept. In dealing with the Bill, I want to deal with the question of divorce in three distinct categories. Firstly there are the grounds for divorce, secondly the question of the prohibitions to which the Press are subjected and, thirdly, the family courts or the courts which will try divorce cases. I see divorce in terms of those three categories.

As I have said, the first category deals with the grounds for divorce. The Bill introduces the concept of “the irretrievable break-down of a marriage”. All the adulteries and desertions would then fall away as grounds for divorce, because in terms of the Bill it is the court’s job to find out whether a marriage has irretrievably broken down. That aspect is mentioned in clause 4 of the Bill. On page 15 of the commission’s report, mention is also made of the guidelines laid down by the British commission for the determination of “irretrievable break-down”. I do not have the time to quote them all now, however. Clause 4 of the Bill sets out the procedures the court should adopt in granting a divorce, and I think that it could be argued that those guidelines will probably become the premises adopted by the courts in granting divorces.

The first refers to the relevant parties not having lived together as husband and wife, in the same household, for a continuous period of at least one year immediately preceding the court action. I want to highlight certain difficulties I foresee in this connection. I agree with the principle of irretrievable breakdown, but I should like to highlight certain difficulties that practitioners may encounter. Those who have been handling divorce cases for 30-odd years, and are therefore seasoned practitioners, could perhaps also assist this House with certain suggestions.

Let us first consider the concept of a man and wife having not lived together for a year. The established definition of desertion includes the concept of the refusal of marital privileges. That is, in fact, desertion in law. Two people can live in the same house, in fact in the same room, and there can still be desertion if marital privileges are refused. The Bill does not take care of that aspect, because in terms of the Bill the two parties must physically not live in the same house. When the Bill was first published, and this aspect was being discussed, lawyers were saying that things were going to be simplified. They would only have to tell their clients to go and live apart for a year and then come back and get divorced. Surely, however, that is not the intention of the Bill. Surely the Bill does not want to encourage people to live apart for a year so as to qualify for a divorce, because the marriage may have irretrievably broken down before the 12 months have expired.

That is only a guideline.

A further difficulty is that if they do that, how is maintenance to be obtained for any party or for the children? One can only go to court to obtain a maintenance order once one has instituted an action for divorce, and one cannot, in terms of the Bill, institute an action for divorce until one has lived apart from one’s spouse for a period of a year. I therefore see an hiatus as far as the grounds for divorce and the proof of these grounds are concerned.

I now want to turn to the question of adultery. Hon. members may have watched a certain television programme on this. I was a little upset to hear one of the speakers on that programme say that, as soon as adultery is proved, the court must grant the divorce. That is not what the Bill says. The Bill does not say that, if adultery is proved, the divorce must be granted. On the contrary, even though adultery is committed, the marriage may not have irretrievably broken down. The partner against whom the sin has been committed, the innocent party, may turn around and say: “Oh, he has had a rush of blood to the head and that is why he went off with this young floozy for a weekend. He will get over it I am not breaking up my marriage because of it He will come back to me.” In that event the marriage has not irretrievably broken down.

That is condonation.

However, proof of adultery is today in fact grounds for divorce, whether the other party wants a divorce or not. Now, however, although adultery is committed, it will no longer necessarily mean the divorce will go through. This is so for other reasons as well.

Another difficulty I have relates to the facts required to prove adultery or desertion. Although malicious desertion may be implied, it still has to be proved in court, as I read the Bill. What is then the point of all this if in fact we are back where we were before and have to prove everything? The court will then have to examine and cross-examine in order to decide who the guilty party is. Having decided that, it will have to determine whether the marriage has in fact broken down. However, it does not really have to decide who the guilty party is: It merely has to decide whether the marriage has irretrievably broken down. We find that guilt is no longer the criterion. In paragraph 8.3, page 11, of the report it is stated that—

That seems to be the concept that applies. However, we find that this is contradicted in the Bill. I will deal with that shortly.

The main problem arises with the wording in clause 4 that the court “may” grant the divorce. This is the most important word in the Bill. Whereas in the initial draft it was worded that the court “shall” grant the divorce, it has become “may”. Furthermore, in subsection (4) one reads that the court may take a certain decision if “there is a reasonable possibility…”.In other words, it is left to the discretion of the court. The discretion here is very wide. The parties can then be referred to a marriage counsel, they can be referred for treatment or they can be left time for reflection. Therefore, even if adultery is proved, the plaintiff need not accept that, because the court can then say: “You are too young; go away and reflect on it.” Alternatively, the court can say: “You have been married for too long; go away and reflect on it.” It does not have to grant the divorce. Furthermore, the judge may believe that marriages are made in heaven and that the oath “until death do us part” is holy, he may have moral objections to divorce as such or even religious objections to it—and there are very strong religions in the Western World today which are against divorce—as a result of which, no matter what one is able to prove on the grounds of desertion or adultery, one will have no certainty that one will obtain a divorce. How does one then advise one’s client? How does one prevent the needless expenditure of a large amount of money? How do one’s clients know where they stand if they are going to be subject to a loose decision, if I can put it that way, on the part of the court? This is supported by the commission’s findings. I refer members to paragraph 10.2 on page 17 where it is indicated that England’s Law Commission recommended—

The court will now have the power to do just that That is where the word “may” comes in. Furthermore, there will be no consistency in that…

What are you reading from?

I am reading from paragraph 10.2 of the Law Commission’s report. I want to say that it is left too much to the discretion of the court. The whole problem, however, can be solved if the word “may” is changed back to “shall”. I am strongly in favour of that. I think it would very much improve the Bill. There is an amendment to that effect on the Order Paper. If that amendment is accepted, legal practitioners and litigants will know exactly where they stand.

On page 35, paragraph 18.3, the commission said that it could not agree with the view that a divorce court should, notwithstanding an irretrievable break-down, still have the discretion to refuse a decree of divorce on the grounds that it could result in exceptional hardships for the dependants. While the British commission said that they could not grant a divorce if such divorce would result in exceptional hardship, we say that we shall not refuse a divorce on the grounds of exceptional hardship, but if we retain the word “may”, it will be possible for us to refuse a divorce on those grounds. To prevent such a contradiction, the word “may” ought to be substituted with “shall”.

The same principle applies to clause 5 which deals with mental illness. This is so, not because of the new requirements relating to two years’ detention in an institution and to two psychiatrists, but because even if those two requirements are met, the court is still not obliged to grant a divorce unless we substitute the word “may” with “shall”. I see a serious conflict between these views and the views expressed on the draft legislation. These remarks also apply to the provisions regarding physical disorder and a state of continuous unconsciousness. Whilst the doctors cannot even determine conclusively the state of the patient when it comes to the question of euthanasia, how can we expect the court to make a finding whether the continuous unconsciousness of a person is of such a nature that a divorce should be granted?

Clause 5(3) refers to legal practitioners. Normally a legal practitioner is a member of the side-bar, an attorney. These provisions require clarification because how can the clause provide that the court may appoint a legal practitioner to represent the defendant at the proceedings when such a case is heard in the Supreme Court and only advocates can appear before the Supreme Court? Whilst one welcomes this concept, the rules of the Supreme Court do not permit an attorney to appear before such a court.

Clause 4 (2) provides that the court may, in so far as it may appear to be necessary, inquire into the circumstances of the alleged disintegration of the marriage relationship. When will such inquiry be necessary? Will it still be necessary for the court to make such an inquiry after an agreement between the parties has been filed in terms of clause 7? We all know the usual preambles to such agreements. If such a preamble should read “Whereas the parties have reached an agreement that the marriage has irretrievably broken down, we now ask the court to make an order as follows…” why can the court not accept it? Why is it still necessary for the court to inquire further into the circumstances? I am saying that there are no better judges than the husband and wife to decide whether their marriage has broken down.

Alex, do you agree with that?

Yes.

After all, they are the ones who will have to live together, they are the ones who will have to suffer and they are the ones who have to decide. My submission therefore is that if they come to an agreement and submit an agreement along the lines I have suggested, the court should grant a divorce. I do not think that that decree of divorce should be deferred for moral, religious or any other reason. I think such a husband and wife are entitled to a divorce and I think they should get it. Quite frankly, this business of their being separated for one year makes a farce of the law itself.

Why can the agreement referred to in clause 7 not also provide for the custody of the minor children and their maintenance? In the Committee Stage I shall move an amendment with a view to making it possible for such an agreement to be accepted.

The word “circumstances” in clause 4(2) should clearly only refer to contested divorce cases and should be applied only when it comes to those cases. We should accept the principle that parties can reach an agreement between themselves. In fact, if one refers to paragraph 13.4, page 26, of the commission’s report, one notes that they refer to the commission in Great Britain along the lines that that commission finds that in England a divorce action which is undefended can in most cases be disposed of on affidavit and without the need to bring further evidence. They want to go further. Even where minor children are involved, they are prepared to grant a divorce based purely on the affidavits of the parties.

In clause 7(2) there is a reference to the conduct of the parties “in so far as it may be relevant to the break-down of the marriage”. This brings us back to the issue of guilt. I do not believe that it is intended for the court to canvass the whole question of guilt, but when one comes to clause 9 which provides for the division of the patrimonial benefits of the marriage between the parties, one is then back on square one, because when it has to be decided what assets the parties are to get, the “circumstances which gave rise to the breakdown” and “any substantial misconduct” have to be examined. It will now have to be proved who the guilty party is. If one has to go back, not to the irretrievable break-down but to the guilt of the parties, to decide who is to get what out of the assets, one is back on square one. I think that very serious thought should be given to this. I maintain that divorces by agreement should be granted with the minimum amount of pain, the minimum delay and the minimum cost. The defended ones, I am afraid, will have to take their course in law as far as this is concerned.

I am happy that restitution orders, which were a farce, are being abolished. They were just a waste of time. I am happy that separation is being abolished. I think the initial idea of separation was good. The Americans have a word for it, viz. a “cooling-off period”, but it never really worked. The problem now, however, arises of what the position is of people who have been separated, either notarily by underhand agreement or by a judicial separation before court. What is their position at present? Will they be able to go to court, say that they have been living apart for 20 years and get a divorce? Has the marriage irretrievably broken down because they agreed to live apart in terms of a judicial separation? I think this matter needs some attention.

I now want to turn my attention to clause 12, which puts a limitation on the publication of particulars of a divorce action. I do not agree with the provisions of this clause. I am in favour of the free publication by newspapers of particulars of a divorce action. With regard to this clause, I want to strongly support the argument of the Saan group. I think they have a very good argument They have shown that out of the 10 850 divorce cases between 25 April 1977 and 17 May 1978—a period of just over a year—reports on only 147 South African divorce cases and 25 overseas divorce cases were published in the following seven newspapers: The Sunday Times, the Sunday Express, the Rand Daily Mail, The Star, Die Transvaler, Die Vaderland and Beeld.

What was the figure with regard to contested cases? Are they not only quoting the figures for uncontested cases?

No, Sir, not as far as I know. I have the Saan report with me and to the best of my knowledge they make no reference to this. They say—

I have the report and can show it to the hon. the Minister. Furthermore, I strongly support the arguments that were raised by the newspaper group. The first was that this clause places a restriction on the Press in conflict with the code of conduct and constitution under which the S.A. Press Council operates and is also far in excess of the provisions of the Publications Act. Secondly, they say that divorces are in a class of their own and, if this is so, how can they be distinguished from claims for defamation, claims for damages, claims for breaches of promise or for breaches of contract—why can reports on such matters be published and not reports on divorce cases? Thirdly, they claim that this clause opens the door to mischief-making in that it will now be possible for people listening to the proceedings in court to spread rumours. Fourthly, it will provide considerable scope for blackmailers who may obtain information and use that information for the purposes of blackmail.

They have a very strong argument to the effect that publication acts as a deterrent to married men becoming promiscuous and forming illicit relations. It is also acts as a deterrent to men who are bullies, who bully their wives and will be afraid of this coming out in court The only deterrent is the fact that this will be published and the only weapon the poor little woman has is to say to her husband that his bullying methods will be published in the Press. [Interjections.] Sir, I am on the hon. member for Houghton’s side. In addition, either or both of the parties involved may hold public office. Here we have a very powerful submission.

But surely she can lay a charge of assault?

Yes, that is perfectly correct. My experience is, however, that as soon as she has laid a charge and has gone back home, she gets it in the neck twice as bad. [Interjections.] Another strong deterrent is that, as far as people holding public office are concerned, it must reflect their fitness to hold such office. A person’s behaviour at home can be a guide to his standard of morality in public life. I think that is a very important factor. For those reasons I am not happy with the compromise contained in the addendum to the report. I do not think that the mere fact that one can publish the agreement or the order of the court, goes far enough. The only argument against this is the question whether this can act against the interests of the children. In this regard I am prepared to rely on the discretion of the judge, of the court. If the publication of the case can harm the children, the court has the power in terms of the law as it is now to restrict such publication. I am happy to rely on that I therefore want to leave it to the discretion of the court and to the newspapers, whose discretion I also trust in this matter as to what to publish or not to publish. It should also be left to the discretion of the parents to decide whether to embark upon a case, knowing full well that all the dirty washing will be hung out on the line if they go ahead.

I now want to refer to the question of the family courts. Although the Finer Committee recommended the institution of family courts—this is referred to on page 26 of the Commission’s report—we see that, in paragraph 13.9 on page 28, the commission rejects that. I believe there is a great deal to be said for a special court for divorces. I am prepared to accept that, because the children’s court, the adoption court and the maintenance court are held in magistrates’ courts, the magistrates’ courts are probably the best place for divorce cases to be heard. We have just increased the jurisdiction of regional courts enabling them to impose fines of up to R10 000. I have previously praised, as I do now, the standard of regional courts. I now want to ask the hon. the Minister to consider amending or introducing legislation to enable divorce cases to be heard in regional courts that can be set up especially for that purpose. Attorneys are well versed in this matter. They appear in central divorce courts and therefore they know the procedure. They prepare the summons and the statements in Supreme Courts and then simply hand them to counsel, resulting in duplication and a complete waste of costs. They can easily handle it themselves. In this way we can do away with the argument going on between the Bar and the Side Bar. I believe that a special divorce court should be established in each magistrate’s court. I want to point out that those who would be concerned, are well versed in this matter and can handle it.

I want to say that, funnily enough, I had written this speech before I read the excellent report of the Secretary for Justice. In this report he is really crystallizing what I have been trying to say in respect of regional courts. On page 5, in paragraph 1.14, the Secretary says as follows—

And then he actually goes on to say—

I think that, as a first measure, we must extend the regional courts to handle cases in which the patrimonial assets which are to be divided do not exceed R10 000. We might even consider raising this amount. Cases involving more than R10 000 can be referred to the Supreme Court. Let us start off on that basis. I for one strongly supports the intermediary court idea with regional judges and the idea that they cannot only deal with certain criminal cases and civil proceedings, but can also function especially as a divorce court and handle the divorces which come before them on this basis. I think this will reduce costs, it will make the courts accessible to the man in the street and to the many people who cannot afford the higher litigation costs and it will go a long way to meet the problem that is facing South Africa, namely the rising number of divorces, the break up of marriages, the separation of the parties, the division of the assets and the custody and maintenance of the children.

Mr. Speaker, the hon. member for Hillbrow touched on several matters that could in fact be dealt with more appropriately during the Committee Stage when all these amendments and ideas will be considered individually. At this stage I do not want to become involved in the dispute that could arise in respect of the Bar and the Side Bar, except perhaps just to point out to the hon. member what the practice is as regards the appointment of curators ad litem for example, which is already standard practice and where members of the Bar are principally appointed for this purpose.

The hon. member also referred to the possibility of a family court being established and he wants to equate this, inter alia, to the increased jurisdiction of the regional courts and magistrates’ courts so that they can then deal with these matters. Of course, this aspect was thoroughly considered by the Judicial Commission, and I am referring specifically to page 36 of the S.A. Law Commission report which stated, inter alia —

It went on to state on page 37—

It is only in that case that one would really be able to have a family court such as that which was requested by the hon. member for Hillbrow. They went on to state, on page 37—

The hon. member for Hillbrow also reacted to the real grounds for divorce and referred, inter alia, to desertion, where parties do not necessarily have to be estranged from each other in the sense that they have to live apart, and said that one would indeed in these circumstances have a break-down of the marriage. There is no fault to find with this, because naturally if the break-down is there de facto, it will serve as evidence before the court which will return a verdict based on such evidence.

Mention was also made of the words “may” and ‘shall” which, I take it, will be debated in the Committee Stage. But even here, too, once the court is convinced that the facts do indeed prove that the marriage has disintegrated, the court will issue such an order, unless there is another reason for it to believe that if it were to afford the parties an opportunity of becoming reconciled, there could be some chance of success.

As far as my personal contribution to this debate is concerned, I should like to try to elucidate another aspect of divorce. In divorce we primarily consider the husband and wife, and sometimes overlook the children involved. This year is the International Year of the Child and for that reason I think it important in this discussion of the Bill to allow the emphasis to fall on the proposed provisions regulating the position of the minor children of a broken marriage. Here we are dealing mainly with clauses 6 and 16 of the Bill. Throughout the point of departure is that the Supreme Court is the principal custodian of all minor children. The divorce is pre-eminently the occasion where the court really fulfils this role.

After the parties in a divorce action have reached the naked realization that the marriage can no longer continue and after a great deal of time has sometimes been spent in arguing about the material assets of the marriage, of which a long list including pots and pans is sometimes drawn up, the major question manifests itself to these people whose marriage was blessed with children: What is to become of the children? Naturally various possibilities present themselves. In the first place we find that the joy of the expected freedom prevails and not one of the parents wants the children, because they would ostensibly be a burden. In the second place, in other cases they do not mind who is given supervision and control over the children. In the third place we find that neither of them is prepared to part with the supervision and control of the children in favour of the other party, for some reason or other.

However, everyone agrees that the welfare of the affected child has to be accorded top priority. This was the opinion before and of the Law Commission and this approach has in fact been embodied in clause 6 of the Bill. Clause 6(1) provides in particular that before a decree of divorce is granted, the court must be satisfied that provision is being contemplated or has been made for the welfare of the affected child and that such provision is satisfactory, or has to be the best that can be effected in the circumstances.

This of course links up with the idea which the hon. member for Hillbrow raised with regard to clause 7(1). Clause 7(1) principally concerns a deed of settlement which can be incorporated in a court order. In the nature of things there need be no problem in this regard, because such a maintenance order could be so incorporated, and indeed it is so incorporated in practice. Clause 7(1) makes provision for that, and therefore it need not be specifically mentioned in the clause.

Except as far as specific reference is made to them in the Bill other existing laws and the principles of our common law concerning the position of the children of divorced parents are left untouched, and one is grateful for that.

In order to emphasize the importance of the child, certain parties that testified before the commission, felt that welfare reports should in any case be submitted to the court beforehand. In this regard the commission felt that the court’s discretion should not be curtailed by making welfare reports compulsory. In this regard I think it is also necessary for us to note that our courts have always treated this aspect with the greatest circumspection against the background of the special responsibility with which our courts are charged. Where necessary, they have never hesitated to call in the assistance of welfare workers. This practice has now been established in clause 6(2) of the Bill and in certain respects the clause is even wider.

Besides welfare workers, other people and experts in other fields may appear before the court and assist the court in investigating the matter properly. Welfare reports are usually obtained free of charge from the Department of Social Welfare and Pensions. As soon as other professional assistance has been called in, costs are involved and the court may order that one or both parties shall pay the costs. This court order is not coupled with success or guilt.

There were also proposals before the commission that in the case of contested divorces or in cases where the parties could not reach an agreement, the child should be represented separately. The crux of this proposal was embodied in clause 6(4) which provides that the court may appoint a legal practitioner to represent the child in the proceedings. I realize that while the Bill refers here to a legal practitioner, the hon. member for Hillbrow possibly experienced the same problem as in the cases where mental illness is involved. In this regard, too, it is left to the discretion of the court to judge whether it is desirable or not in the case in question, because in reality it will concern those cases where the court is not satisfied with the requirements of clause 6(1) have been met, with or without the assistance which is provided in clause 6(2). Even in this regard expenses will not prevent the best interests of the child from being protected, because one or both of the parties may be instructed to pay the costs involved, and once again without guilt or success playing a part. To determine what is in the best interests of the child, the courts have already been moving away over the years from the situation under the old law where the emphasis fell on guilt and the child was then almost automatically awarded to the so-called innocent parent. The emphasis has shifted to an objective test of what would be in the best interests of the child. For this purpose various factors are examined, inter alia, the sex of the child, age, facilities which each of the parents could offer the child, religion, educational background of the parents, mental state and temperament, the standard of living, the attitude of the parents to the children and, if the child is old enough, even the child’s own preference. It is therefore clear that progress in this field has been made in leaps and bounds and, therefore, the major issue now is the child’s feeling of security.

In the French case of 1971 Mr. Justice Fritz Steyn said: “The child must feel that it is welcome, wanted and loved.” The question which the court therefore has to ask itself is: Which parent will be able to take best care of his child’s physical condition as well as his religious, moral and cultural requirements and development? On the basis of a whole series of decisions Hahlo said on page 461 in his South African Law of Husband and Wife —

In this regard I want to point out a recent Australian decision in which Mr. Justice Glass had the following to say in the case of Epperson v. Dampney in 1976—

Fortunately this standpoint was criticized and rejected in the same year in In the Marriage of Raby. Prof. Ellison Kahn said the following in the South African Law Journal of July 1978 (Volume 95, Part II, p. 249)—

Illuminating in this regard is another article in the same journal, written by Rhona Rosen on the basis of her doctoral thesis. She said the following, after she had referred to certain investigations in the Cape Town area which she had carried out into both Afrikaans- and English-speaking children over the past five years—

These quotations indicate the seriousness with which the position of the children is constantly examined. In terms of clause 6, the court may now, if necessary, examine the position of the minor or dependent child in even greater depth.

With regard to interests which have to be protected, there are the provisions of clause 6(3). In terms of clause 6(3) the court which grants the decree of divorce may make certain other orders as well.

The first of these is the maintenance order with regard to such affected children. This order will be based on the circumstances which applied at the time of the divorce. If these circumstances were to change in any way, however, this order could be rescinded, varied or suspended in terms of clause 8(1). Other laws relating to maintenance, and the powers of the maintenance court on magistrate’s court level are not affected by this legislation. In accordance with this, the minor child, while his parents are not divorced, may receive maintenance in terms of the Maintenance Act, 1963. This aspect is important in those cases in which the trial court postpones the divorce action with a view to reconciliation, and where the parties live apart, because, in terms of clause 6(3) of the Bill, the maintenance order may be given by the court that issued the decree of divorce. In other words, in terms of the provisions of the legislation under discussion, the maintenance order may at the earliest be granted in conjunction with the decree of divorce by the court in question.

After the decree of divorce has been granted, it appears that the court may always subsequently be approached to vary the maintenance section of the order. Supervision and control, or rather the custody of an affected child, is another aspect on which the trial court may make an order. Once more this order is at the earliest made in conjunction with a decree of divorce and may at a later stage, at request, and if the circumstances justify it, be rescinded or varied in terms of clause 8(1) and (2).

In cases where supervision and control are at issue, where the parents are in the process of getting divorced and are living apart, the solution appears to be an interim order in terms of rule 43 of the Supreme Court Rules, in which case the existing norms will apply, for although clause 1 (1)(ii) by definition defines a divorce action, and includes an application pendente lite concerning interim custody, clause 6 is expressly concerned with a decree of divorce, i.e. a finalized action. Clause 16 is concerned with exclusive custody and guardianship. Clause 16 seeks to amend section 5 of the Matrimonial Affairs Act, 1953. Hence the amendment appearing in my name on the Order Paper, therefore, an amendment which seeks to make section 5 of the Matrimonial Affairs Act identical to the relevant provisions contained in clause 6(3) of the Bill.

In addition clause 6(3) makes provision for an access order to a minor child. Here, too, the provisions of clause 8 may be applied to effect a desirable variation or rescission. Temporary assistance is then obtained in terms of rule 43. In the case of a custody or access order, it is necessary for this to be read in conjunction with section 1 of the General Laws Further Amendment Act, (Act No. 93 of 1962), which is concerned with the failure to comply with a court order pertaining to access to children, and the imposition of a penalty for such omission.

An important order the trial court may also issue, is an order with regard to guardianship. Representations were submitted to the commission requesting that guardianship of the child concerned be awarded to the same parent who obtained supervision and control over his child. This would then, it was argued, eliminate many practical problems, particularly where permission is required from the guardian to supplement the legal capacity of the minor, in cases where the law requires it In my opinion the members of the commission adopted the correct attitude, since they felt that the father should not be deprived of his guardianship of the child without good reason. Clause 6(3) provides that if the court considers it to be in the interests of the child, exclusive guardianship over the child may be awarded to either of the parents. This includes the capacity to agree to the child’s marriage. At the death of the exclusive guardian, the court may appoint another person as guardian together with, or to the exclusion of, the surviving parent.

It is also necessary to examine clause 16 which amends section 5 of the Matrimonial Affairs Act, 1953. Where the parties have already been divorced, or are living apart, the court may make an order which awards sole guardianship or sole custody to one parent. However, this provision deals with the sole custody or guardianship besides what is known as or could have been called “normal” and sole guardianship and custody which is dealt with in clause 6 of the Bill. I think that where the parties are living apart, whether in anticipation of the divorce or not, the same order ought to be obtained as that envisaged in clause 6(3).

Clause 16 also amends section 5(3) of the 1953 Act and provides that a parent, who has been granted the sole guardianship or custody of a minor in terms of certain laws, may appoint anyone, by testamentary disposition, as the sole guardian or as claimant to the sole custody. It goes on to provide that the father to whom such powers were granted in certain circumstances is also entitled to appoint a person by testamentary disposition, but then only to act jointly with the mother in the execution of such duties. This regulation seems to be reasonable and serves the best interests of the child. It is for this reason that I can support this Bill without hesitation.

Mr. Speaker, the hon. member for East London North speaks from long experience, because he is a member of the Bar and he knows, as we heard here today, what he is talking about. I agree with much of what he said, especially with what he said about the role of the courts with regard to the children. In that regard we can find no argument with him.

I can understand perfectly well why hon. members are so loquacious about divorce. When I look around me, I realize anew that there is one type of divorce in South Africa which it is not difficult to get, and that is political divorce. Political engagements take place regularly, but sometimes the parties break off the engagement before the wedding day or even on the wedding day itself. This, of course, avoids the trouble of getting a divorce.

There is, of course, adultery as well.

There are many hon. members who still have to participate in this debate, but it seems to me as though hon. members are already tired. Consequently I shall try to make my speech as brief as possible.

†In the first place one wants to compliment the S.A. Law Commission and the Department of Justice on the drawing up of this legislation. The Law Commission dealt with the matter exhaustively, its investigations being carried out in South Africa and also extending beyond South Africa’s borders. The commission gave a very clear review of what the issues were and what the Bill would be all about since the Bill flowed from the report.

The more difficult the divorce laws are, of course, the less parties are encouraged to marry. I believe, however, that this Bill puts the matter in the right perspective in providing for irretrievable breakdown as a ground for divorce. When divorces are contested at present one has a mud-slinging match, the parties driving each other and their legal representatives up the wall. I am not saying that this state of affairs will be eliminated, but as proof of guilt is not a vital element, the new approach should make settlement between the parties far easier. The problem with disputed divorce is often that either the children are adversely affected or hard-earned savings are dissipated because the parties want to fight each other to the finish. Children should always be the prime consideration but often, because of emotional traumas, they become the prime targets even though both parents would like to avoid hurting the children. In 1975 the chance of divorce was calculated at one for every 3,2 marriages.

It is obvious that our divorce rate is far too high. It is often said in jest that one marries in haste and thereafter repents at leisure. On a more serious note, however, the fixing of the period of one year for the parties not to have lived together in the same household as evidence of irretrievable break-down, worries me. It worries me because, invariably, before one party moves out of the house permanently, there have been a series of break-downs and a series of reconciliations. During a period of break-down one of the parties may move out of the house for a few days or a few weeks. It is obvious that on the strength of a temporary move such as that one should not consider a divorce, as the sanctity of marriage should be preserved and a decision should not be taken irrationally. However, if, after the marriage has broken down in all respects and everything has been tried, one party moves out of the house and stays out of the house for, say, six months, the break-down would seem to be irretrievable. The 12 months’ period is very unsettling for the children as well as for the parents. I would say the court should be allowed the discretion to consider each case on its merits and not be tied down to a fixed period of time.

That is a guideline.

I do not think a period of time should be laid down. I think the courts should use their discretion. They have had a lot of experience in these matters and I do not think there is any need to tie them down to a 12 months’ period. Stability must be brought into the lives of all concerned as soon as possible. If the breakdown is irretrievable and reconciliation is impossible, the court should be allowed to use its discretion. I can do no better than to quote a finding of the Law Commission in England—

Once a party has gone as far as litigation and instituting an action, that party does not easily withdraw, although on occasions such parties do withdraw. The attorney who is consulted must establish beyond any doubt that there is no possibility of a reconciliation before proceedings are instituted—and attorneys do just that.

Partners hold each other up to ransom either in regard to the children or in regard to the material aspects. In some cases the one party jockeys the other into judicial separation. This Bill goes a long way towards eliminating that situation. We welcome the fact that judicial separation is done away with. I think that, if the parties are completely irreconcilable, they are entitled to be granted a divorce without either holding the other to ransom or subjecting the other to harassment. I believe that the Bill to a certain extent alleviates that situation.

There is a problem on which I should like the hon. the Minister to enlighten me. This concerns the case where parties, after having been married for many years, are divorced and the husband has built up a substantial pension fund. If the husband thereafter does not remarry and subsequently dies, what is the position of the ex-wife in regard to the pension benefits? I wonder if the hon. the Minister could enlighten me on that particular point?

Is that after the divorce?

Yes, after the divorce. Another point I should like to raise is that the creditors are often placed in a very difficult position, for example where a woman has been running up accounts for many years and suddenly obtains a divorce. The financial position of the parties often changes vastly after the divorce. Naturally, in many instances the creditors are not aware of the divorce. That is why publication of the names and perhaps the addresses of the parties makes very good sense to me. That is one way in which the creditors can see who is getting divorced. They may want to change the credit rating of the parties involved in the divorce.

A further matter I should like to raise is that the courts have always looked most carefully at the situation in relation to the children. The further safeguards that are built into this particular Bill are welcome to us.

Lastly, in regard to the question of publication generally, as far as we are concerned we would leave it to the discretion of the courts to decide what they will allow to be public. They realize that there is a human element involved and I think they would use their discretion wisely. We in the SAP will not oppose this Bill.

Mr. Speaker, the hon. member for Walmer made a neat speech. I do not want to enter into a quarrel with him about it, but I did infer that he was under the impression that divorce could only be granted by the courts in terms of the provisions of the Bill if the parties had already been separated a year. He is misreading the Bill and I therefore urge him to take another look at it.

I should like to exchange a few thoughts with the hon. members for Hillbrow and Houghton. The hon. member for Hillbrow made a statement by which he probably did not wish to create the impression which he did in fact create, namely that our courts are aware that there is collusion to obtain a divorce and they do nothing about it and simply carry on from day to day. The impression the hon. member created was that the judge hearing the case is aware of the fact but is unable or unwilling to do anything about it.

That is not so.

I hope that it was not his intention.

That is so.

At least, fortunately, the hon. member for Johannesburg North said that it was not so. In this regard I stand foursquare behind the hon. member for Johannesburg North. It is indeed true that if the court is aware of collusion then this immediately stands as a defence against the divorce itself.

A second matter I want to raise with the hon. member for Hillbrow is his view that the guidelines laid down in clause 4 will become grounds for divorce. He went on to argue that this did not mean that people living in the same house who subsequently divorced, would not be able to do so in terms of the provisions of the new legislation. His inference is wrong and I think he should take up this matter, too, with the hon. member for Johannesburg North.

The hon. member also expressed reservations about the concept that a court “may” grant a divorce, as is provided in clause 4; in other words that the court is given a discretion. The hon. member for Houghton also raised this matter and I am sorry that she is not at present in the House. It is true that I have not been a member of this House for long, but I think the speech she made was the best I have ever heard her make in this House. It was a good speech. I do not wish to intimate thereby that she was correct in all respects. Indeed, she made a few serious mistakes, but she did at least acknowledge that she relied on her “legal luminaries”, and I infer from that that she was referring to the hon. member for Hillbrow. She went on to say that she was losing confidence in her legal luminaries every day.

I want to react to a few of her ideas in respect of which, in my opinion, she adopts an incorrect view. Then I want to refer to two aspects in regard to which she advanced what were in my opinion very sound arguments. She said that the information she had obtained from her law advisers indicated that if grounds for divorce were prescribed, they could in practice become the only grounds for a divorce. Perhaps she should communicate with the hon. member for Johannesburg North again so that she can have a real law adviser and not just any little law adviser. I concede that in practice it could and probably will happen that these guidelines will indeed become grounds for divorce. This is a very strong possibility, but one should not read into this that they will become the only grounds. Surely the intention has been very clearly spelt out.

Like the hon. member for Hillbrow, she went on to express grave misgivings as to the question whether the discretion may or must be exercised. There is probably no fault to be found with the idea of stating expressly that discretion must be exercised, but at the same time there is no fault to be found with the idea that the discretion may be exercised. If a discretion is left to a court, the court is obliged to exercise that discretion and to exercise it judicially. I cannot imagine any problem being encountered in practice with regard to the wording as it stands, and in my opinion the hon. member’s envisaged amendment is basically unnecessary. The hon. member raised another very interesting aspect, viz. the issue of divorce by consensus instead of the irretrievable break-down of the marriage, as grounds for divorce. She also pointed out that in practice, divorces by consensus were the custom because in practice people colluded to obtain divorces.

She added that the best evidence that the marriage had broken down irretrievably, was the mere fact that the parties no longer wished to stay together. There may be sense in that but I think she was a little unreasonable when she referred to the pious hypocrisy of the commission. We must bear in mind that we now have to adopt legislation which meets the requirements of the community and which is in accordance with the views of the community. The view, or at least that of this side of the House, is that since we are living in a Christian community we must make laws for such a community. Marriage is, after all, still a holy institution as far as our people are concerned. I share that conception. One sometimes wonders, however—and this is a debatable point—whether it is really the function of the State to prescribe precisely in a regimented way how those religious convictions are to be expressed.

The other aspect concerning which I wish to express strong agreement with her is that a court must be empowered to grant maintenance to one of the parties, not only at the time of dissolution, but subsequently as well. I shall motivate that. I do not think it is advisable to introduce an amendment on this matter now, but I do think that the hon. the Minister of Justice would do well to refer this section of the speech by the hon. member for Houghton to the Law Commission to enable them to give attention to the matter with a view to a future amendment.

In terms of clause 7(2) the parties are basically tested against the circumstances and their conduct For the purpose of this argument I wish to leave the issue of conduct aside for the time being. If the court finds that conduct is not at issue, it looks purely at the physical resources and needs of the parties and then issues an order that the one party has a duty to maintain the other party. However, soon afterwards, the parties’ circumstances can change in such a way that the party who is obliged to pay maintenance would be in fact have been entitled to maintenance at the time of the dissolution of the marriage. In other words, if one of the parties can derive a positive advantage from the maintenance order, the converse must also be true. I think this is something which we should do well to take note of. What this amounts to in practice is that the dissolution of the marriage always, in fact, entails the duty of maintenance, but I wish to argue that at present, this concept is also largely in agreement with the views of the community.

I must congratulate the hon. member for Houghton once again on the very sound arguments she used in her speech. It is true that she entered the House while I was discussing the good things, but I do want her to go and read my Hansard to see where she was wrong. That could also be of use to her.

I want to air a few ideas about the element of guilt and also the shortcomings involved. Basically, therefore, I wish to discuss the grounds for divorce that exist at present and the grounds for divorce in terms of this legislation. On page 34 of its report, Divorce, Volume III, the Commission of Inquiry into Family Life has the following to say—

In the light of the existing legal system this statement is not quite correct because there are cases of marriage that have de facto ceased to exist but in regard to which, because there were no grounds for divorce in terms of the existing law, no order could be issued for the dissolution of such marriages. On the other hand, it is also true that although in terms of the existing law, the marriage may not have suffered an irretrievable breakdown, the court is obliged to grant a divorce when grounds for divorce have been proved. Under the present circumstances it has no discretion. At present we have the four grounds for divorce: Adultery, malicious desertion in one or more of its forms, insanity and habitual criminality. If one of these grounds is present, then the court must grant a divorce, and if not one of these grounds is present, the court cannot grant a divorce. The problem is that on the one hand it is too difficult to divorce and on the other it is too easy. I want to give an example of this. The parties agree to divorce. They decide who the claimant will be who must sue for restitution of conjugal rights on the basis of malicious desertion. In terms of the agreement the defendant does not dispute the claim. The case is then placed on the roll and the claimant appears on the day of trial and tells the court that her husband has maliciously deserted her and that he has intimated that he has no wish to continue with the marriage. Her evidence is not contradicted and the court is obliged to grant an order for the restitution of conjugal rights. On the return day the defendant, still according to agreement, has not reacted and the court is consequently obliged finally to dissolve the marriage. Mr. Justice limes—probably one of our best-known judges—referred to this aspect as far back as 1906 in the case of Krantz v. Krantz and appealed for a reform in this regard.

I also wish to give an example of the contrary happening, where it is difficult to divorce. The classic example is perhaps the Viljoen case, Appeal Court, 1968. Mr. Justice Trengrove, in an article in De Rebus Procuratoriis in 1975, on page 260 under the title “The Role of the Courts in Divorces”, refers to this same case as the case of the brawling wife of whom Solom said that it was better to dwell in a comer of the housetop than with a brawling woman in a wide house. In this case the man left the house because he could no longer stand the brawling of his wife.

Is that not perhaps a house in Houghton?

He then claimed restitution of conjugal rights. The women submitted a defence and counterclaimed on the basis of malicious desertion. Both claim and counterclaim were rejected because the court found that the intention to terminate marriage, the animus desiderendi, was not present. The defendant won on appeal when the court found by a majority of three to two—only just—that the man did in fact have the intention of terminating the marriage by leaving the common home.

I think it is incorrect to say that the position with regard to divorces in South Africa would improve if we made it more difficult to divorce, that in other words it would result in a lower divorce rate or give rise to stability in married life. Indeed, I think such a statement would be false. The available figures show in any event that there is a trend which has remained unchanged since the 17th century. It is true that the law can prevent divorce but not separation. Cohabitation cannot be imposed by law. In a very good article “Fighting the Dragon Divorce” in The S.A. Law Journal of 1963, Prof. Hahlo of Wits refers to this matter. He states that there was no restriction on divorce in the Roman Law. A man could leave his wife at any time. It is true that he was obliged to pay heavy fines—equivalent to the maintenance of today. But there was no basis on which a divorce could be refused.

Only under the influence of the church and the canonical law, in accordance with which divorces were forbidden, did a new trend come to the fore. There were no divorces, but what was striking was that there were several so-called annulments of the marriage, and the figures for annulments of marriage suddenly rocketed. This principle of lapse or disintegration which we too are introducing here has been accepted since the ’fifties and ’sixties in many East European countries. It has applied in England since 1971 and in the Netherlands since shortly after that. In Switzerland it has applied since 1874 and in the Scandinavian countries since the 1920s. In Australia it has applied since 1959 and in Canada since 1968. A number of the States of the USA, too, have adopted this point of departure in their law of divorce. Against this background the Law Commission decided on two points of departure.

In the first place they decided that the law could contribute little towards the security and stability of the marriage and that in point of fact it was also unable to prevent disintegration of marriage. The law’s only function was to identify the disintegrated marriage and then to dissolve it with as little inconvenience as possible in the interests of the parties and of the community. On the other hand, the law must not place any stumbling blocks in the way of a recovery or reconciliation in the marriage. The second point of departure is that the community does in fact have an interest in the maintenance of marriage and also in the dissolving of a marriage that has broken down irretrievably. Accordingly the principle of guilt, which has certain defects, is being set aside.

In paragraph 6 of the report the Law Commission goes into this in detail and I just want to refer to it briefly. The point of departure of the guilt principle is that one party is guilty and the other innocent. In fact this is not the case, and everyone knows it. Accordingly this results in man and wife colluding to mislead the court in order to obtain a divorce, it causes the relationship between parties to deteriorate and causes bitterness, particularly where children are involved. In general this is harmful. In the second place, the guilt principle conflicts with any process of reconciliation. If for example the grounds for a divorce are adultery, an effort to bring about a reconciliation would amount to a condoning of the grounds for divorce. In the third place it results in the so-called innocent party being able to keep the other in bondage, and the marriage bond can become a punishment for such a person. The words of Oscar Wilde in this regard are interesting. He said on occasion: “It is he who has broken the bond of marriage, not I. I only break its bondage.” In the fourth place, the existing law is inflexible because it affords the courts no discretion. If there is a ground for divorce the court must grant the divorce and if there are no grounds, the court has no power to issue an order of divorce in spite of the fact that the marriage has disintegrated. In the fifth place, the principle of guilt has an unfortunate effect with regard to the patrimonial position of the spouses. For example, the court must grant an order to forfeiture to the successful party if he applies for it.

The Law Commission therefore deemed irretrievable disintegration to be wide enough to be comprehensive. Irretrievable disintegration has to do with cases where the continuance of the normal marriage relationship is made impossible by the conduct of the spouses themselves. The grounds of mental illness and unconsciousness can be compared with the case where the normal marriage relationship has become impossible, while the concept of disintegration has to do with making it impossible, the contributions of the parties by their own actions and by the exercise of their own wills.

The Bill before the House in my opinion represents an effort to place the law of divorce on a sound basis and I believe that we are succeeding in this aim to a great extent. In any event we shall have to keep a careful eye on it in practice. When I say that, I am not trying to imply that all problems have been eliminated. On the contrary, in the final instance there is, perhaps, no good solution to the problem. Perhaps the only solution is for us to do away with divorce and legalize murder!

Mr. Speaker, the hon. member for Randburg made a number of remarks with which I agree, particularly his favourable references to the hon. member for Houghton. To my regret, however, I must now intimate that in some respects I do not agree with the ideas of the hon. member for Houghton with regard to this legislation. I want to cut my speech very short because I am sure that hon. members and the hon. the Minister in particular are eventually going to become tired of these long speeches.

Mr. Speaker, with your permission I address my remarks chiefly to clauses 4 and 5 which in fact concern the essence of divorce itself. The first remark I wish to make concerns the issue of the words “may” and “shall”. In clauses 3, 4 and 5(1) and (2) the word “may” is used where in the normal course one would expect the word “shall”. To be specific, when there are certain findings of fact and other situations, the court has to reach a specific decision and issue a judgment. I agree with the hon. member for Randburg that when a court is given a discretion to be exercised on certain grounds, it has to give judgment It has no choice when those grounds are present; it has to give judgment.

However I must say that there is doubt on the part of the public—that includes the hon. member for Houghton—and certain lawyers as to whether this is a really good and sound interpretation of the Bill. It might eliminate a great deal of heartbreak, concern and uncertainty if the hon. the Minister were to see his way clear to replacing the word “can” in all these instances because it is clear that this is the intention. One cannot do away with grounds for divorce which have existed for years and put something else in their place but leave it to the court to decide whether it is going to grant a divorce order when those grounds are present or not. Perhaps that would be an improvement.

However let me say at once that the Law Commission has done an exceptionally good job in this regard, has carried out a very thorough study and has considered the matter in depth. There is very little fault to be found with its factual findings. My criticism is aimed more at how the Bill is worded to give effect to the findings of the Law Commission. For example, I would say that clause 4(1) is quite correctly formulated with the possible exception of the proposed alteration of “may” to “shall”. This reflects the precision the task which the court must execute in order either to dissolve or not to dissolve a marriage, because the grounds for doing so are absolutely clearly stated, namely an irretrievable break-down in the marriage relationship or a reasonable probability that this is the case.

However I have reservations about clause 4(2). This subsection provides that the court can institute an investigation into the circumstances leading to the alleged disintegration of the marriage relationship, the attitude of the parties, etc. This represents a deviation from the ordinary rule which applies in a civil case to the effect that the plaintiff is the dominus litus and sets the tone and designates the course of investigation. Here it is being transferred to the court itself. I take it that it is the assumption that the court may call witnesses to prove a specific allegation of disintegration of marriage made on either side. The first question is whether, in the normal course of circumstances, one ought to grant the right to that discretion. It seems to me that this is an unsound principle for two reasons: In the first place because in a civil hearing the judge should not be quick to enter into a debate on the pros and cons of the claim, and secondly, because additional costs will inevitably be incurred in this regard. For example, in an undefended divorce case the judge says that he would like to call witnesses A, B, C and D. Who is going to pay their costs, and who is going to determine whether they are in fact necessary, because it is clear that the judge is not as well informed as the advocate acting for the plaintiff. Who is going to examine those witnesses? Who is going to determine, by way of examination and cross-examination, whether what the witnesses say in the witness-box is acceptable and reliable information? In my opinion this is an incorrect principle. I want to recommend strongly to the hon. the Minister that he should rather delete clause 4(2). Section 4(3) also caused many problems. The standpoint of the hon. the Minister is that the provisions of clause 4(3) only indicate guidelines, that they are only indications to the court with regard to the circumstances to be taken into account in considering the question whether there has been a final breakdown in the marriage.

Are they not merely factual findings?

Mr. Speaker, the hon. the Minister asks whether those are not merely factual findings.

A presumption of facts.

Presumption of facts? They are presumptions or, if I may put it that way, a partial satisfying of a burden of proof which may exist. However, two tendencies occur here. In the first place, it shows a tendency to become absolute. When a court is told to do a certain thing, for example in instances A, B and C, it seldom happens that a court also takes instances D, E and F into account. This is natural. It is human. It is merely common practice.

Mr. Speaker, I believe there are few members who really grasp what a divorce court consists of nowadays. The court begins sitting at 10 o’clock in the morning and the sitting lasts until 4 o’clock or 4.30 in the afternoon. Like a sausage machine one divorce case after the other is brought before the court and dealt with, with evidence given by various people. A judge has to deal with 80, 85 or up to 90 hearings in one day. This is a terrible task which the judge has to perform; really a terribly unpleasant task. After all, he knows that what he is dealing with is the weal and woe of married people, on what one could almost call a race-track, people whose lives and whose children’s future lives as well, are affected by the findings issued by the judge. The hon. the Minister said that it was a question of one or two minutes. In any event it is only a few minutes. Such a hearing takes four minutes or even less. Now the court is expected to go even further and think of other possibilities apart from those three so-called guidelines being indicated here, the three presumptions of facts. In the normal course of circumstances this would not occur. Being human, the court would simply accept these three guidelines as the true standardized presumptions of facts because Parliament had approved them as such.

In my opinion clause 4(3) as a whole should be deleted.

I agree.

Yes, I do too.

Clause 4(3)(a) entails the further difficulty of “the same household”. I do not know what this really means. Say for example a man and wife live apart—for perhaps a year—because the man works at one place and the woman at another place and they are simply unable to live together in the same house. Does that constitute grounds for a divorce? In clause 4(3)(c) we have the case of an habitual criminal. Why should an habitual criminal be singled out? Say for example a husband or wife is sentenced to 25 years imprisonment. Is it fair, is it right, is it socially healthy that the other spouse should continue to be bound to that marriage? That cannot be. Nor is it necessarily so that, on analogy with clause 4(3)(c), the court would also accept a long term of imprisonment as a reason or cause for the irretrievable disintegration of the marriage. In my opinion cases of this nature, sets of grounds and facts of this nature, required before the court can issue a final finding, can safely be left to the courts themselves. The practice, the precedents, the customs that have developed over the years will themselves eventually determine what is acceptable, what sets of facts are acceptable for the creation of a presumption of facts and what are not acceptable. Clearly, there is nothing in any law stating what has to be taken into account under the present system of law to determine when malicious desertion occurs and when not. Nevertheless the courts have worked out very satisfactorily what is required. However, there is a far more important point than that. When one determines part of one’s grounds and leaves part on a discretionary or indeterminate basis, one creates insecurity of justice. Rather leave everything open and leave it entirely to the discretion of the court. The court will very soon be able to say what is acceptable and what is not.

Clause 4(4), too, gives me a lot of trouble. In clause 4(4) it is left to the discretion of the court to delay a divorce action from month to month and from year to year. In the first place, who pays the costs and, in the second place, could this not be used as a pretext for certain judges to give expression to their personal convictions? For obvious reasons I do not wish to tread on the corns of the judiciary but there may be judges who, for religious reasons, are opposed to the principle of divorce. I do not know whether there are judges who are opposed to the principle of divorce but there are many people in South Africa who are simply totally opposed to any divorce in principle. Therefore a judge may be under the influence of such a point of view. He may say that the Supreme Being must be allowed to reconcile the parties because the marriage must be maintained. If he were to do that, however, he would be acting in conflict with the spirit of this legislation and in conflict with what is socially healthy. In my opinion it would be better if we were rather to delete clause 4(4) as well. I am in favour of our retaining only clause 4(1) and, for the rest, leaving matters entirely in the discretion of the courts.

In conclusion, I just want to raise a few other minor points. I have already said that clause 5(1) and clause 5(2) can and must be amended. This brings me to the question of consensus divorces. I am told that the hon. member for Houghton discussed consensus divorces and that the hon. member for Randburg referred to them as well. Experience has taught me that there are people who marry and then land up in the divorce courts within three months. That kind of divorce must be discouraged in some way, because irresponsible people who marry in an irresponsible way and then want to divorce irresponsibly must be discouraged because in fact this frustrates the whole idea of the permanence and holiness of marriage.

It is those marriages that should not be encouraged, not so?

The hon. member for Houghton states that that kind of marriage should not have taken place in the first place and should have been discouraged. That is quite right, but whereas we lawyers are concerned with the end of the marriage, we can do nothing about that. Consequently measures must not be interpreted to mean that irresponsible divorce—if one may use that term—is permitted.

Give them a minimum sentence, Kowie.

That is why I, like the Law Commission, am totally opposed to consensus divorces. The final decision must be made by responsible courts and judges.

This brings me to the remarks by the hon. member for Hillbrow as to which court should have jurisdiction. I am sorry that I must say here and now that I differ from him totally. I cannot concede for a moment that any court apart from a Supreme Court should be able to judge and settle an issue of status, and in marriage the issue is a very important one of status. Therefore we cannot permit any court apart from the Supreme Court to handle or decide such a case.

What about a special division of the Supreme Court?

The hon. member for Houghton asks what about a special division of the Supreme Court I do not wish to be facetious, but if any hon. member could show me a judge in South Africa who would be prepared to handle only divorces for the rest of his life, I would fall flat on my back.

Erasmus.

As I said at the outset, it is not a pleasant task. Indeed, it is in all respects a highly unpleasant task. It is highly unlikely that anyone could persuade a judge to do that kind of work exclusively. I am therefore opposed to our thinking in terms of family courts. The case must still be handled in the Supreme Court. Subsequently, when it comes to the issue of the care of and supervision of children and other results of the divorce such as the patrimonial rights, other arrangements can be made.

However, as far as the first step is concerned, the dissolution of a marriage, viz. the divorce order, I do not believe that we should accede to the opinions of the hon. member for Hillbrow or the learned Secretary for Justice, because something else is involved. When a question of status is not dealt with by the highest court in the land, international recognition of that status decision will not readily be granted; in other words, serious contradictions could arise and difficulties be encountered if divorce orders, as was the case years ago in certain States of the USA, were not recognized elsewhere. This could then give rise to a very high degree of uncertainty.

The hon. member for Randburg discussed the question of guilt. It is of course a very good idea that in divorce trials, the element of guilt should not be taken into account and that the court should confine itself to the issue of the real state of affairs in a marriage at the time when it comes before the court. Whether the element of guilt would be taken into account at a later stage in a different court or under other circumstances in patrimonial decisions and decisions on the care of and supervision of children, is a different matter. However, this is most desirable and is a very sound principle which the Law Commission has introduced here. Personally I believe that the Law Commission and the department of the hon. the Minister must be congratulated and thanked for a very sound, honest and well-thought-out effort to place this matter on a sounder basis.

Mr. Speaker, with respect, the best part of the speech made by the hon. member for Johannesburg North was its last few sentences, where he said that this was a very well-considered Bill. I believe the hon. member contradicted himself in his remarks on what the hon. member for Hillbrow said. In fact, I want to support the hon. member for Hillbrow later in my speech in his representations with regard to inferior courts.

The hon. member for Johannesburg North said earlier in his speech that divorces were handled by the Supreme Court like sausages by a sausage machine. Later in his speech, however, he said that the divorces had to be handled by the Supreme Court, but he has a problem with clause 4(2), concerning the inquiry into the break-down of a marriage and the fact that this will be time-consuming for the court. I shall refer to clause 4(2) again later in my speech and then reply further to what the hon. member said in this connection.

The hon. member for Johannesburg North wants clause 4(2), (3) and (4) to be deleted. The provisions of clause 4(3) in particular provide guidelines to the court, but do not dictate to the court the only grounds to be considered in granting a divorce. I believe that if we had to leave the matter open, we would really be creating uncertainty in law, because in that case there would not be any specific guidelines when this legislation eventually came into operation. After all, these are not the only grounds. Nor does it mean that if these grounds exist, the court has to grant a divorce on the basis of that. In fact, in terms of clause 4(4), the court has the opportunity of enabling the parties to make an attempt at reconciliation. In my opinion, clause 4(4) is associated with clause 4(2), and I think it would be difficult to conceive of the one without the other.

I should like to say that on the occasion of discussions such as this one on divorce law in South Africa, one has pleasant memories of one’s practical experiences. One finds that if one has represented a woman in a divorce case, for example, one afterwards becomes her attorney and the person who advises her permanently. One actually becomes her adviser who acts for her almost pro amico and who handles her other affairs with regard to her daily requirements until she remarries. However, an attorney naturally has limited rights.

One often has very interesting experiences, especially in dealing with divorce law, and I should like to associate the one I want to mention now with one of the existing grounds for divorce. Many years ago, a rather corpulent woman—she has since passed away—rushed to my office and very indignantly showed me a letter she had intercepted. This letter had been written to my client’s husband by another woman, whom I shall call the loose woman. It was addressed to my client’s husband at his home address, but on the envelope was written: “Personal and very strictly private.” Of course, these words were what led the woman to open the letter in the first place. I do not want to quote the letter in full. In it, my client read, among other things, what was said about her. Apart from the longing which was expressed in the letter, it also contained the following words—

I am pointing out one of the basic causes which gave rise to the break-down of a marriage. I also want to point out the planning which goes into such a situation. The letter went on—

In other words, they had actually hoped that my client would not come back from hospital. Here there was very big trouble. Hon. members will realize this.

In practice I have often had to carry out divorce orders. I even had to go with one of my partners to remove children from one parent and take them to the other one in terms of a court order. I remember one occasion when my good friend and partner, Pine Kritzinger, and I had to go and fetch one-year-old twins from their father. My partner carried the twins in his arms and I carried the dummies, the nappies and the bottles, etc. It is a peculiar situation to find oneself in. I honestly admit that in such a situation, one feels rather anxious when one is confronted by a threatening father.

It is a peculiar situation, and this confirms what was said by the hon. member for East London City. He said that the whole question of the children involved in a divorce case was creating a major problem for South Africa and its people. For that reason I also find it gratifying that this Bill attaches particular importance to the care and welfare of the children.

In my opinion, this Bill approaches the matter very realistically. In practice it is often impossible to give any one party the greater part of the blame. One finds this when one asks someone what has been the cause of the estrangement or the break-down and one hears that the parties either drifted apart and then suddenly realized that there was no bond left between them, or that they shared the blame. This is probably the most realistic cause and fact, and I believe that it is what this Bill wants to give effect to. According to figures I have been able to obtain, the average number of marriages between Whites every year for the period 1973 to 1976 was in the region of 40 500. In 1973, for example, there were 40 602 marriages, in which 10 031 children were involved. In the same year there were 8 890 divorces. In 1975, 41 333 marriages were solomnized, in which 12 386 children were involved. The divorce figure was 10 730. In 1976, there were 40 483 marriages, 13 815 children and 10 850 divorces. I believe this figure is too high for us in South Africa. The situation should have been better. We had an almost constant number of marriages over this period, but the divorces increased by 25% during the same period, and the number of children involved over the same period increased by 38%.

One of the factors which can serve as an indication of irretrievable break-down to the court is when evidence is placed before the court that the parties have not lived together as husband and wife in the same household for a continuous period of at least one year immediately prior to the divorce action. The hon. member for Johannesburg North referred to this, as did the hon. member for Hillbrow, who said the provision was completely wrong. When I consider the divorce figures, I say that under these circumstances, the parties have a period for reflection while they are apart, and that they should make use of it to be reconciled and not to grow more hardhearted towards each other. This applies in particular to younger people who often grow afraid of each other at the first quarrel and for trifling reasons and then go back to their parents. I believe that everyone should devote himself to his marriage and that South Africa cannot afford this high divorce rate.

My view of the Bill is that it attaches great importance to the behaviour and attitude of the parties. Clause 4(4), for example, to which the hon. member for Johannesburg North also referred, provides that if it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings from time to time in order that the parties may attempt a reconciliation. This is particularly relevant to the position of young people, and I am thinking especially of young people who have to do national service in the interests of our country. There are some of them who have been married for a very short time. In fact, there are many of them. They are away from home for long periods, perhaps longer than a year. It is only right that these people should have peace of mind while they are performing their duties, and this places a greater responsibility on the communities in our country to look after the newly-wed wives of such young men. We must reject illegitimate relationships much more strongly through our own conduct in our respective communities. The young men who have to make enormous adjustments in every respect on their return also deserve the assurance from our side that their marriages will be protected against intrusion as far as possible. When such a man finds on his return that his marriage has broken down, his community and his people around him must enable him, through understanding and responsible behaviour, to adapt himself. They should also try to bring about a possible reconciliation instead of making this impossible by way of gossip and other allegations. Reconciliation ultimately means that each party has to become a little more modest, that they must face each other squarely and decide together to make a success of their marriage in the interests of their children as well.

The first question one often puts to prospective candidates for divorce is: Have you spoken to your clergyman or have you seen a pastoral psychologist? The reply to this is very often: “I do not know who he is” or “I have not been to church for such a long time that I am too ashamed to see him.” I am convinced that many more reconciliations would take place if the parties were to consult their clergyman, pastoral psychologists or qualified marriage counsellors. In this connection I have noticed that Prof. Anna Steyn, a member of the department of sociology at R.A.U., pleads that the parties should make an attempt at reconciliation during the period of a year.

I have just indicated how many children are involved in divorce. This Bill prohibits the granting of a divorce unless the court is satisfied that the provisions made with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances. The Bill therefore places a very high premium on the protection of the interests of dependent and minor children, and I believe it to be important that under such circumstances, children should always have the maximum possible security and lead a life which is as normal as possible.

An important ruling in this connection was made, I believe, in a court case which took place last year. It is interesting to note that the question of collision was also referred to in this connection. In the case Grobler v. Grobler of 1978, volume 3 of the South African Law Reports, on page 578, it was ruled that where a husband and wife reach a settlement agreement in a divorce case before a summons has been issued in the case, such settlement agreement does not constitute proof of collusion. Furthermore, it was ruled that after the cause of action had arisen, the parties were free to enter into a settlement agreement.

However, what I want to quote in this connection with regard to children is that the court ruled that it is desirable that the court should qualify the reasonable access where the reasonable access is specified so that the father who has the access can take the child with him for a weekend every month. It was proposed by the court that the qualification should be to the effect that reasonable access should be exercised in such a way that it will not interfere in an unreasonable way with the minor child’s scholastic, religious and social activities. The court emphasized that it is desirable that a qualification of this kind should always be added in the future where reasonable access was defined. I should very much like to endorse this standpoint.

In connection with the question of reasonable access, I also wish to refer to the provisions of section 1(1) of the General Law Further Amendment Act, No. 93 of 1962, which provides—and I am speaking under correction—that it constitutes an offence when one party who has exclusive custody of and control over minor and dependent children refuses reasonable access without reasonable cause. Such a party can then be sentenced to a fine of R200 or one year’s imprisonment. In practice, it happens that a complaint is lodged and then a policeman has to be sent out to investigate, and also to judge whether there were reasonable grounds for the complaint or not. Often young children are involved in such matters where parents confront each other. The police have to find out what is going on and they must also question the children to find out how they feel about the matter and whether they want to go with their father or their mother. In my opinion, this creates almost a life-long problem, or one which remains with these children for a very long time. I do not believe either that it is right towards our policemen that they should have to investigate this type of case. I therefore believe that the court ruling to which I have referred remains very important with regard to the access of one party to the children, as it is qualified.

I am also convinced that everything possible should be done to ensure that the right feelings towards every parent are fostered in the children, no matter under whose control and in whose custody they are. Therefore I believe that this aspect should form part of a settlement agreement and a court order between the parties, and I say this with reference, inter alia, to the case of Grobler v. Grobler. It should always be a part of the divorce order. It can be stated in such an order that one party, especially the party in whose custody the children are, undertakes and will be obliged to foster an attitude of goodwill and affection, and not one of estrangement, on the part of the children towards the other party at all times. I belive that this stipulation may be applicable to both parties, and I think it would contribute to greater understanding and a solution to the problems which arise when the other party has access to the children. It may even be desirable to see whether disputes between husband and wife with regard to access to children cannot be rapidly investigated in civil proceedings in the magistrate’s court, as in the case of maintenance, a new order being issued on the basis of the latest circumstances, in order to make the best possible arrangements for the question of access to and custody of the children.

While I am referring to the magistrate’s court, I should also like to refer to what was said by the hon. members for Hillbrow and Johannesburg North. Jurisdiction in this Bill rests with the Supreme Court, apart from the jurisdiction which the divorce court has in terms of the Blacks Administration Act. It is well known—the hon. member for Johannesburg North confirmed it again this afternoon—that in general, our Supreme Courts are actually overburdened with work. The rate at which divorce cases are disposed of is enormously high, as the hon. member for Johannesburg North said. I regard this Bill as a much more practical and realistic approach to the question of divorce action. In fact, the whole divorce action basically requires only purely factual findings. I believe, however, that in order to comply with the requirements of this legislation in general, it will probably be necessary to make more time available to investigate thoroughly the position of the parties—I think this is what the hon. member for Johannesburg North also suggested—and also to investigate the possibilities of the restoration of the marriage as well as the interests of the children. In this connection I am referring to clause 4(2), in terms of which the court has to investigate the circumstances of the breakdown of the marriage; to clause 4(4), which concerns the possibility of a reconciliation which must be investigated by the court; to clause 6, which deals with the protection of the interests of dependent and minor children; and to clause 7, which deals with the division of assets of the parties.

I want to suggest that serious consideration be given to granting jurisdiction to handle divorce actions to regional courts which possess civil jurisdiction. I want to motivate this very briefly. In the first place, we have the children’s court, an inferior court which at present makes its findings with regard to the welfare of the children after an investigation. This has been the case for years, and I have never heard any complaints about it. In fact, children can even be removed from parents and placed in the care of others. A magistrate’s court has long been empowered to revise maintenance orders of the Supreme Court and to amend them or to give new orders. Every ruling remains subject to appeal in any case. The opportunity is there—this is not meant as criticism of the Supreme Court—to examine the position of the child more carefully. The children are much more readily available to talk to. The courts sit locally and it is easier to reach them. The cost aspect is important, as the hon. member for Johannesburg North also indicated repeatedly. We have the situation that magistrates may marry people. I have often wondered whether, if a magistrate can marry people, he should not also be able to dissolve a marriage.

The regional courts already have criminal jurisdiction for imposing a fine of R10 000 or 10 years’ imprisonment, so they can hear complicated cases. However, our magistrates are competent, able and properly trained to handle and hear such cases. I found it interesting to read the other day of a woman who appeared without legal assistance in a divorce case and received a restoration order within 72 seconds. She made so sure of her facts that she even pointed out to the judge that she had not been sworn in. The judge then asked the clerk to do what was necessary, she read out her defence and got her order. I could elaborate on the advantages it would have if these courts were to be given this jurisdiction. However, I want to emphasize that it is not the idea to make divorce matters easier. In fact, one really wants them to be more closely scrutinized. I am convinced that this Bill, with its positive approach, is placing the whole question of divorce on a very sound and realistic basis compared to what has existed up to now.

Mr. Speaker, right at the outset I want to make it very clear that the amendments printed on the Order Paper in the name of the hon. member for East London North will be motivated by him specifically and in detail when he returns to the House.

We have had a quite interesting discussion here in the House regarding the new Divorce Bill. I am sure that most hon. members have also received petitions and have been visited by interested parties giving them the benefit of their prejudices in this particular case. However, one of the most interesting phenomena we have experienced in this House for some time, and again in this debate, is the question of what happens to consensus in the PFP. [Interjections.] I think it is extremely relevant to the discussion on this particular Bill, because the answer with which they have come up whenever they fail to reach consensus is to have a free vote. What strikes me is that there is a parallel here to the question of an irreparable break-down between parties to an ill-conceived marriage. [Interjections.]

I also believe that some of the arguments put forward by some hon. members of the PFP, if they were not correct, were certainly ingenious, quite interesting and novel. For instance, I contend that the hon. member for Hillbrow was in fact advocating a sort of do-it-yourself divorce kit, or a sort of press-button type of divorce procedure. My reason for saying this I base on the concept contained in the amendment moved by the hon. member for Houghton, an amendment which is supported by some of her hon. colleagues, not many of whom disagreed with her, that the word “may” should be replaced by the word “shall”. The grammatical difference between “may” and “shall” is very clear indeed. If one includes the word “shall” and the point is proven to the satisfaction of the court, there is no alternative but for the judicial officer to grant a divorce. That suggests that if the prerequisites on which the granting of a divorce depends, are clearly stated in the Bill, it is then purely a mechanical process through which the parties have to go before a judge “shall’ grant them a divorce.

I believe what the hon. member for Hillbrow and the hon. member for Houghton are actually advocating here, is that the whole process of divorce must be broken down and converted to a purely mechanical push-button type of operation.

You are talking absolute rubbish now.

If I am talking rubbish, I am quoting rubbish. In that respect I will agree with the hon. member for Hillbrow.

You do not understand what you are talking about.

When one quotes this kind of novel solution suggested by the hon. member for Hillbrow… [Interjections.]

Order!

The hon. member for Hillbrow obviously lives in an extremely dangerous and hazardous part of the world. That is probably why he has so much experience of mechanical divorce and marriage. However, I am also quite interested to learn from the hon. member for Johannesburg North about the three monthly wonder. He spoke about people who had only been married for three months when they came to the court for a separation. In fact, the hon. member was advocating a cure for this by punishing these people to further marriage. I find that an interesting concept of marriage that people who find that they are not compatible, that they have made a mistake, should now be punished to—I think it was suggested—seven years’ punishment of further marriage. The hon. member for Johannesburg North suggested that. I again find that, coming from the PFP, a most interesting concept I am therefore not surprised to find that those hon. members have resorted to the free-vote mechanism to reconcile such irreconcilable ideas.

We are not one bit interested in your views.

There is a well-known adage that one says one should not cast pearls before certain mammals. So if the cap fits, I think the hon. member for Hillbrow should wear it.

When you are in tow I do not want to listen to you.

I should now like to come to another argument of the hon. member for Hillbrow. With specific reference to the Bill, he said that if parties committed adultery, that would automatically be grounds for a divorce action and that the divorce would be granted.

You cannot even understand what I say. I did not even say that.

I should like to refer the hon. member to the Bill which states that adultery only gives grounds for divorce if one of the parties finds it objectionable. I must admit, however, while we are on the subject, that I have had some difficulty understanding what the hon. member has been saying. He is quite right there.

He said under present law.

I now want to develop my argument a little further.

Ah, go back to the mines.

If the hon. member would give me a chance, perhaps he would hear what I have to say.

Well, base what you are saying on the right premises. Do not make up stories and just talk at random.

Let me then leave the hon. member for Hillbrow there because I am afraid that with his constant interjections he is not going to be able to avail himself of the pearls I am placing before him here.

I should like to go a little further and associate myself with the comments made by the hon. member for East London City and the hon. member for Walmer who spoke about the dilemma of minors and dependants affected by divorce actions. The hon. member for Klerksdorp did give us figures illustrating the tragic circumstances of minors, the children affected by divorces. I would like to say quite categorically that this is one of the aspects we considered most carefully before deciding to lend our support, in particular, to clause 6(1), because perhaps a case could have been made out for extending the relevant clauses by bringing in provisions for further deliberation by the courts before divorces are granted.

That’s Malcomess’ speech, not your speech.

Mr. Speaker, it is quite interesting…

It is not even your speech. You do not know what you are talking about.

… to refer to the statistics. The hon. member for Hillbrow has a certain problem here at the moment. Perhaps after the sitting he can come and see me and then we can see what his difficulty is.

Oh, thank you very much! Perhaps we can talk to Mr. Malcomess who gave you the speech.

Looking at the provisions of the Bill, and judging by comments made by many hon. members, one realizes that divorce is a problem in South Africa. On page 30 of the publication South Africa 78, under the heading “Population data”, certain very interesting figures are given. In 1930, for example, the marriage rate was 9,2 and the divorce rate 0,54. By 1974, 44 years later, the marriage rate had increased to 9,9—not a significantly greater figure—but the divorce rate had increased to 2,38. That means, in arithmetical terms, that in 1978 between one out of three and one out of four marriages were ending up in the divorce courts. Whether one agrees with divorce from a Christian or moral point of view is not the issue here today. What is very evident, however, is that the institution of marriage and the values of society have changed quite considerably. It is well-known amongst the legal fraternity that the law as it stands at the moment is open to manipulation and distortion and can, in fact, be utilized to the detriment of one or other of the parties so if society’s values, patterns and norms have changed, I believe that it is encumbent upon the legislature to adapt our legislation in such a way that it does meet the requirements of the day. Whether one agrees or disagrees with divorce is not a material issue here today.

Another interesting fact about this Bill is that the grounds for divorce are reasonably well spelt out, yet the court retains the discretion to decide whether certain guidelines will be used for the granting of a divorce. This new Bill also regulates to a very large extent the financial relationship between the parties. Marriage is, of course, to a very large extent a contractual arrangement and I believe that the provisions in the new Bill regarding the granting of maintenance, the rights of the dependants, the minors, and, of course, the division of assets are all-important.

Thirdly, this Bill deals with that most important aspect, the protection of the children, who I think are really the victims of these many divorce cases. It is interesting that in clause 4(4) of the Bill it is suggested that—

The hon. member for Johannesburg North, who is not in the House at the moment, did feel that this could become a cul-de-sac into which many of the judicial officers would move cases, because they did not have the time to deal with them. I certainly hope that our judicial officers do not see the provisions of this clause as providing them with a sort of “wegbêrekamer” for a case until such time as they are able to consider it.

An interesting concept which has been mooted by a number of hon. members is that the courts could possibly be used as a counselling mechanism to prevent the dissolution of a marriage. I want to state quite categorically that I believe that we cannot use the court as a counselling, clinical or therapeutic type of institution. I do not believe that this is the function of the court and I do not think it is going to work. The petitions we received, and particularly one from a certain women’s institute, insisting that a proposed domestic court be established with social workers in attendance and counselling by psychologists, do not really offer a solution that will fit into our judicial system. If there is need for counselling, it should be done outside the judicial system.

It is interesting that clause 4 has been included in this Bill because, if there is the faintest possibility that there could be a reconciliation, judges, who are people with a lot of insight and experience in life, could possibly see such factors leading to a reconciliation. The hon. member for Johannesburg North said earlier that judges deal with divorce cases as quickly as races are run at a racetrack. They see hundreds of them. With the experience built up by these judicial officers, I believe it is essential, firstly, that we should retain the word “may”—the discretion of the judge is all-important here—and, secondly, that he should also have the discretion that, if he detects factors which can result in a reconciliation, he need not necessarily grant a divorce immediately.

The one question which gave us considerable difficulty was the question concerning the publication of the details of divorce court proceedings. I fully support the amendment standing in the name of the member for East London North, because we believe the names of the contesting parties and the judgment given by the judicial officer should be made public. The hon. member for East London North will motivate his amendment himself, but I would like to add my particular opinion on this. There can be a prejudice to the innocent party unless some information is made public. The extent to which the provisions of clause 12 deal with Press censorship is, of course, all-important. It may be another one of those blows which drives the wedge in deeper and, therefore, we in Parliament could stand accused of aiding and abetting Press censorship. In this respect it is interesting to see what Randolph Churchill had to say, as referred to in a book entitled The Press and the Public, by George Murray. I want to quote from page 89 what Randolph Churchill replied to a question put to him by the magazine Spectator regarding his attitude towards Press censorship—this was in 1955. He said—

In that spirit I would certainly have no difficulty in supporting this particular clause with the amendment which stands in the name of the hon. member for East London North. The question which must be asked before we approve this clause is what right we have to interfere with the freedom of the Press. We shall be extremely happy if the hon. the Minister will accept such an amendment if it is moved in the Committee Stage, because we believe, in the interests of the parties concerned, that there should be protection from the Press as well. All salacious details which are so often published are not in the public interest, but only in the interest of circulation figures. At the same time, however, I believe that this particular clause goes too far in not giving protection by publicity to the innocent parties concerned. However, as I have said, the hon. member for East London North, will motivate that further. In regard to this Bill I also want to say that the concept of a domestic court which has been mooted does not seem to me to be a practical possibility. This was well-motivated by the hon. member for Johannesburg North. Although it would provide expertise and perhaps a less painful and more practical solution for dealing with the many details involved in marriages after they have been nullified by the Supreme Court, I cannot see the courts actually becoming counselling institutions, and therefore that concept does not enjoy my support.

It is interesting that the attitude of society to marriage reminds one very much of what happens in many board-rooms of companies throughout the country. They take four days to deliberate on buying a truck for R100 000. It takes four days of very valuable executive time, but the minute the truck is brought on the premises, they put an unskilled and untrained driver into the driving seat of this asset. It strikes me that in many people’s opinion, marriage in South Africa is becoming exactly like this. I believe that the counselling of the prospective marriage partners on the effects of divorce, particularly on the children, should be undertaken before they get married. That is when the counselling should take place. If the people are aware of the real consequences of divorce, these horrific divorce figures in South Africa may be reduced.

Finally, I want to say that, subject to the amendments which will be moved by my hon. colleague, we have pleasure in supporting this Bill and to congratulate the Law Commission on an excellent report. We also appreciate the attitude of the hon. the Minister of Justice by the way he has handled this Bill.

Mr. Speaker, I do not want to be drawn into the interminable divorce action between the NRP and the official Opposition. It has now become evident again in the speech made by the hon. member for Durban North. I do not greatly disagree with what he said. I especially like his idea that the most important stage at which the marriage can be saved is probably the stage before the marriage is solemnized. There was no secret agreement between the hon. member for Klerksdorp and myself, but it so happens that I have to echo to a large extent the ideas which he expressed about the custody and care of children. However, I want to go a little further than he did. It is fit that we should pay specific attention to the interests of the child in this year, the Year of the Child. Unfortunately, the child is really the injured party in the divorce action, and he is actively involved in a dispute in which he has no real part. Very often, he cannot quite understand it. Because of divided loyalties and divided love, he becomes quite unsure of himself, and eventually he is maladjusted. It is very tragic that this should be so, the more so when the parties involved in the action continue their dispute even after the divorce has already been granted, very often using the child for this purpose. But fortunately, it is generally accepted that the interests of the child should be protected as far as possible. For that reason, clause 6 should enjoy the unqualified support of us all. I do want to suggest that the Bill does not go far enough, perhaps, in this connection. I believe, with respect, that it can be argued that the arrangement of the child’s interests upon the issuing of an order can be taken much further. Naturally, a divorce order is made with a view to the future, to regulate the future relations between the parents and the child, but unfortunately, it has appeared in practice that the order in itself, no matter how comprehensive, is not sufficient to ensure that the parties will conduct themselves properly towards one another after the divorce. For that reason, I feel that consideration should be given to making a more specific and comprehensive arrangement to define the relationship between the parent who has custody, whom I shall henceforth call the mother, and the other parent, whom I shall henceforth call the father. This relationship, I think, should perhaps be more fully defined. Parents may enter into a deed of settlement with each other, in which they set out the rights of the respective parents, and this deed can then be made an order of the court. However, it frequently happens that there is no deed of settlement or that when there is a deed of settlement, it is not complete, perhaps because of the ignorance of the parties, or whatever the circumstances may be. Also, such a deed of settlement may drastically curtail the rights of one of the parents, especially in an undefended divorce case where an agreement has been entered into. When there is no deed of settlement, the position with regard to access, as well as the rights of both parents, is regulated by common law. However, the extent of the common law rights have nowhere been fully defined, and this often causes uncertainty. It is true that there have been certain court rulings from time to time which have under particular circumstances given a specific content to common law in respect of the rights of the father and the mother. But because it is not complete, because it has nowhere been described in an easily accessible form, it may happen, and it often does happen, that there is uncertainty about the mutual rights of the parties. Fortunately, when there is no agreement between the parties, the matter is regulated by the concept of reasonableness. The father has a right of reasonable access. It is one of the admirable qualities of our law that we depend in several respects on the concept of reasonableness. Therefore it is not necessary to describe the position in full in all legal relationships. If there are problems when we want to determine what the specific position should be in the future, the parties can go to court, which will use reasonableness as a criterion in the circumstances of a specific case. Unfortunately, the problem here is that as a result of this, there may often be uncertainty in law about a particular aspect.

If the legal position concerning the right of the father and the mother is uncertain, unfortunately, it tends to cause problems, unreasonable conduct, friction, discord between the parents—all to the detriment of the child. Therefore I believe that the legislator should consider laying down minimum provisions which should then be regarded as the content and extent of the rights of the father—or the parent who does not have custody—as far as access to his child is concerned. The principle of laying down certain guidelines is already to be found in clause 4 of the Bill, although it occurs there in a different context I do not want to say very much in this debate about the content of those minimum provisions, but for the sake of my argument, I should like to refer to a few of them. It may be laid down, inter alia, that the father should be entitled to have his child spend every second holiday with him, that he should be entitled to speak to his child on the telephone once a day and that he should also be entitled to communicate with his child by letter. It should be clear that these are minimum provisions and that it can never be the intention that they should be regarded as comprehensive provisions. The advantage of such provisions is that the parties will at least know in considerably more detail what is meant by the loose term of “access”. I suppose that a good many objections could be raised to this. It could be said that the tendency could arise for the courts to keep to these minimum provisions and that they would then become the total rights of access. The hon. member for Hillbrow also used this argument with regard to possible grounds for divorces. However, I do not believe this will happen, because in my opinion, our judges, our magistrates and our law are flexible enough to ensure that this problem will not arise. If its definition by the legislator should come to be regarded by all as a really effective and sufficiently comprehensive provision, no objection could be raised to it In the light of given circumstances, the minimum provisions may be unreasonable, but there will be no reason why the court should not be able to replace the minimum rules or some of them with others in any particular case. However, I do not believe that the arguments I have now advanced against the principle are strong enough for the principle to be rejected out of hand. I believe that it would at least bring about greater certainty in law. This would lead to fewer problems between parents and fewer legal actions and all the disadvantages that these entail. In particular it would help to prevent the frustration of the father’s rights by the mother.

I have referred specifically to the rights of the father and to the rights of the mother, but it actually goes further than that. I believe that we should bear in mind that we are not concerned here only with the rights of the father with regard to the child, but in fact also with the rights of that child with regard to its father. The right of the child to maintain contact with both his parents, even after a divorce, is an essential and a vital right which cannot simply be set aside. It may happen that the mother may frustrate the father’s right, and therefore the child’s right as well, because she wants to punish the father. In the process, the child can be harmed. The position should not arise that because the child has been deprived of his right, there are further tensions and court actions between the parents which may harm the child even further. The mother sometimes refuses permission for the child to speak to the father on the telephone or she refuses at the last moment to let the child go to the father for a holiday, as has been arranged, even if it is provided in the deed of settlement that the father has this right. My submission, therefore, is that a fuller definition of the minimum requirements may remedy this situation. I accept that more fully describing the rights of the father will not necessarily mean that the moth will no longer be able to frustrate the rights of the father. But I am still convinced that when the father’s rights in this connection are clearer and when they have been specifically laid down in a law, it will be less easy for the mother to frustrate the rights of the father and thereby the rights of the child as well. Fortunately, the public still has more respect for what is contained in legislation than for the provisions of common law, which are very often a closed book to them.

I know that when the mother tries to frustrate the father’s rights, there are civil actions which the father can institute to help him. However, this is expensive, and there is not always time to remedy the matter. It can cause many more problems. I am also aware of the provisions of section 1 of Act 99 of 1962, to which the hon. member for Klerksdorp referred. That Act was specifically introduced in an attempt to prevent frustration of a court order. I do want to argue again that I believe that it will facilitate the implementation of this legislation if minimum provisions are laid down to define the extent of the father’s rights. The problem with the Act to which I have just referred is that the police have to implement it They are not always inclined, perhaps also for the reasons mentioned by the hon. member for Klerksdorp, to give effect to it. Very often they adopt the attitude of telling the parties that their case is a civil one and that they have to resolve the matter in a different way. I expect, however, that if the Act is not properly implemented, the fault does not lie with the Act, but with its implementation, and this can be rectified. However, I do believe that this particular section of the Act to which I am referring can be better defined, precisely with a view to solving the problems more easily. I also want to submit that this provision belongs in and should be incorporated into the divorce laws, so that all the relevant provisions will be collected together and no one will not have to go and look for a General Law Amendment Act I suspect that many of my colleagues are just unaware of this as I was for a long time.

A further aspect which has a bearing on this is that I believe we should consider placing the onus on the parent who has custody in such cases if he/she does not obey the court order or the minimum rules. This parent should then furnish proof that there were reasonable grounds for the failure to obey the court order. The parent is in control of the situation and is in possession of specific personal knowledge, and it is easier for a mother to prove that there were reasonable grounds for failing to obey the court order than for the State to prove that there were not.

I also believe that the penalty provision should be extended to other persons. It frequently happens that the wife’s next husband is the very person who frustrates the observance or exercise of the rights of the father and child. I may mention a simple example. The stepfather, the second husband, may be the very person who prevents the child from speaking to his natural father on the telephone. He may be the person who intercepts the child’s letters and does not give him the natural father’s letters. The mother can also hide behind the stepfather, with his active collaboration, in frustrating the rights of the natural father and his child.

I foresee that many people may seriously disagree with me. If the ideas I have put forward are at least considered—even if they are then rejected—I shall have achieved my purpose.

I just want to touch on a final aspect The hon. member for Randburg referred to the maintenance aspect and indicated that it could perhaps be referred back to the Law Commission for further investigation. If this is done, I respectfully want to submit that the Law Commission should then try to ascertain at the same time whether there is any certainty in law with regard to the question of whether, when there has been a divorce and maintenance order in favour of the wife and the husband dies, the wife may enforce that order against his estate or claim payment from his estate. My researches have indicated that there is some uncertainty about this important legal aspect, and if there is in fact uncertainty, it should perhaps be removed by a further amendment to this Act.

With those few thoughts I may say that I gladly support the Bill in its entirety, with the drastic changes which it involves.

Mr. Speaker, the hon. member for Albany will pardon me if I do not react to his speech. I want to deal, however, with a somewhat different aspect of the Bill.

Allow me to say right at the beginning that I want to associate myself with hon. members who have paid tribute to the Law Commission. I also want to thank the hon. the Minister for introducing this particular piece of legislation, because the whole question of the reform of matrimonial law in South Africa has been in the melting-pot for very many years. To my mind it takes some degree of courage to bring it forward because of the conflicting interests and interest groups that exist Even though there is not unanimity about everything contained in this Bill, I believe, it does represent a piece of legislation which has had a remarkably smooth passage, bearing in mind the somewhat delicate nature of the legislation we are dealing with, the religious, emotional, human and social aspects of it. Therefore, I believe that in introducing this legislation the hon. the Minister has in fact done a service to the whole concept of the reform of matrimonial law in South Africa, something which has been long overdue. I, for one, would prefer that there would not have to be such things like divorce laws at all. However, human nature being what it is, it is an essential. Whatever approach one has to this, I believe, the basic concept should be to try to preserve family life in a happy form for as long as possible in each and every marriage that exists. Together with that, family life, as the hon. member for Albany stressed at some length, includes the whole concept of husband, wife and children to comprise one unit and, as such a unit, make their contributions to the State.

Allow me to deal with a particular aspect of the Bill, an aspect which interests me particularly. That is the question of jurisdiction and the question of the recognition of the decrees of divorce which are granted. Clause 2 of the Bill actually comprises a substantial re-enactment of a similar provision contained in the present divorce legislation. As such it does not represent any departure therefrom. However, I should like to ask the hon. the Minister whether he does not think that the time is right for this whole question of jurisdiction and—as I shall indicate in a moment—the whole question of recognition of decrees of divorce to be referred for particular study by the Law Commission, especially in the light of international considerations at this particular time. The Law Commission did not in particular direct its attention to this aspect of the matter. However, if we look at the jurisdictions elsewhere in the world it is quite clear that the concept of domicile, such as we know it in South Africa, and the same concept, such as it was recognized in the United Kingdom and is still recognized in the USA, has, in those two countries, been very substantially changed by legislation.

In the continental countries the concept of domicile such as we know it in South African law has virtually been thrown overboard. The word has quite a different meaning there. I wonder whether the time has not come for us in South Africa to allow our courts to exercise jurisdiction in respect of matrimonial matters, such jurisdiction being based either upon the principle of habitual residence or on the principle of residence defined in terms of a particular period of time, or—in the third instance—based upon the continental concept of the term “domicile” rather than our concept, which creates many problems regarding interpretation, and also creates many problems in other respects. In terms of our legal concept of domicile one can be domiciled in a country in which he has never set foot in his life. One has a situation where, for example, one acquires a domicile of choice, and when one gives up that domicile of choice without acquiring a new domicile of choice, one reverts to a domicile of origin to which one has no intention of returning ever.

To my mind these, among other anomalies that exist and which are not in accordance with modern concepts, need being studied. I also want to draw attention to the fact that we still pursue the concept that husband and wife must have the same domicile whereas, for example, in the United Kingdom it has been enacted that a husband and wife can have separate domiciles if they so choose. Again it seems to be in accordance with modern trends regarding the independence of women that a wife should be entitled to acquire a domicile of her own choice and not be tied to the domicile of her husband.

I do not propose to move amendments to this clause, because I believe it is a part of our legislation which needs to be studied. However, there are lots of examples all over the world of countries in which this modern trend exists. Therefore, I believe the hon. the Minister should see to it that this be studied and that the necessary amendments in this regard be introduced into our legislation in due course.

The same applies to the recognition of foreign decrees of divorce. We still adhere fundamentally to the concept that in order to recognize a decree of divorce, it should be granted in a country where the parties were domiciled. There are certain limited exceptions which are set out, and those give the discretion to the State President to designate the countries. The problem which arises is that we are relatively unique in the world in the recognition of decrees of divorce based on domicile. Therefore we should rather fit in with world trends in regard to this matter. There was a convention held in the Hague in terms of which countries agreed to amend their laws in order to fall in with the concept of that convention. This has been accepted and is adopted in most of the Western countries. In terms of this convention one can actually recognize a divorce decree where there is domicile in accordance with the definition of domicile of that particular country, but it can also be recognized on other grounds such as habitual residence. The basic concept of now having a law in South Africa which is unique, is to my mind not one which is to the advantage of either people who are here, people who come here or people who leave here. I want to give an example of this. One may get a situation in which a man is quite legitimately divorced in the country in which he happened to be living at that time, in accordance with the concepts laid down by the Hague convention, but when he comes to South Africa and remarries here, in accordance with our law, he may well be committing bigamy. That is obviously a very undesirable situation, because nobody would want something like that to happen. There are many other examples I can quote which affect the whole concept of the recognition of divorces. I do not propose to move any amendments to clause 13, but I do ask the hon. the Minister to refer this matter to the Law Commission for study, because I think we should get into the mainstream of international law in regard to these particular aspects. I believe it is in the interests of everybody in South Africa, including immigrants who come to South Africa.

I shall leave that particular aspect with the hon. the Minister and very briefly, if I may, touch on the concept of no-fault divorce. I support that concept. I do not propose to enlarge on it, but I do agree with the concept as put forward, except that I think that the word “may” needs to be explained by the hon. the Minister. We need to deal with that, but the broad concept that one can have a no-fault divorce is one which I think is in accordance with modern trends.

I have the same problem which other hon. members have indicated they also have, and that is that if, with the concept of a no-fault divorce, one still has to go through the whole long, wearisome litigation process in order to deal with other matters such as property and maintenance, the purpose of the no-fault divorce is, to some extent, frustrated.

I want to deal specifically with the property position and the situation as set out in clause 9 of the Bill. In my view the concept as put forward by the Law Commission, and as contained in the draft Bill relating to the new property regime, is in principle a very sound one. The concept is that the basic matrimonial regime should be that when two parties get married they retain what they own, but what they create during the marriage in assets, property and gain, should be for their mutual benefit. In other words, it is not a concept of community of property as at the time of the marriage, but a concept of community of profit and loss as one goes along. That concept is accepted in many jurisdictions in the world. I believe it is a concept which is fair, just and realistic—certainly vis-a-vis the woman. It is far more realistic than the matrimonial régime we have at the moment. I am not sure whether—even though there should be freedom of contract—there should be some incentive in due course to have that as the matrimonial regime which people should accept generally. However, what happens when one is divorced? The régimes as they exist in many other Western countries demonstrate very simply that what one brings into a marriage, one takes out of it again, and that what both partners have achieved during the marriage, they share. Should that not also be the position when a marriage is dissolved? Clause 9(1) provides—

I believe that a court should take into account not only these three circumstances, but all the material circumstances, including these three. In particular, it should also take into account what contribution either of the parties have made to the community either at the time of the marriage or during the marriage, because if, for example, a wife inherits a vast sum of money during the marriage, it seems illogical that upon a divorce the husband should then share in the benefit of that inheritance which really was never intended him in the first place. This unfortunately does not appear to be covered in this provision. I should like to submit that we should broaden this whole concept to bring it into line with what eventually is likely to be the normal matrimonial regime in South Africa which will be in line with what happens in most of the jurisdictions throughout the world and which will, to my mind, create an equitable situation.

I should also like to briefly touch upon what is a sensitive matter, namely the publication of divorce proceedings. I must tell hon. members that I am not exactly one who is not prepared to speak up for the freedom of the Press. However, I think the hon. member for Durban North, in quoting Randolph Churchill—perhaps not in the way I would have quoted him while dealing with the same subject—touched upon a very important thing. There is such a thing as the freedom of the Press, but there is also such a thing as the right to privacy. I personally believe—I am not speaking for my party, this is an open matter—that what goes on between husband and wife behind their bedroom door or in their house, has nothing to do with the rest of the world. It is a private matter. I do not believe it should be published. In my view there is no justification for it why every scandal-monger should want to read on a Sunday morning about the matrimonial affairs of other people. I do not believe that having that view has anything to do with encroaching upon the freedom of the Press. We are concerned with purely the basic right of the individual and of the family to privacy. That is something we must also respect, apart from respecting the right of people to publish matters which are in the public interest. I do not believe that the private affairs of husband and wife are in the public interest I want to suggest to the hon. the Minister that in some respects he might even go a little further. I want to point out an analogy in this respect. We have income tax legislation and it is an established fact in terms of that legislation that when one goes to the special courts or to other courts, one does not have one’s private business affairs ventilated around for the whole world to poke their noses into. If one looks at the law reports of the income tax cases, one sees that they do not even mention the names of the parties and that they do not identify the people involved unless they want to be identified. What is more private: the matrimonial relationship between husband and wife or the income tax affairs of the individual businessman? I think the income tax affairs of the individual businessman should be respected. But in exactly the same way I believe that the right to privacy of husband and wife should be equally respected. The hon. the Minister will know, after he has read his law reports, that he cannot identify the individuals who are in fact involved in the income tax legislation, and therefore, I do not believe that they should be identified in the other way either.

Then the question arises whether, if one is going to prevent publication in the Press of the matrimonial affairs of people, one should allow the general public to come to listen to all the gory details. I think it is important that one does not close the courts, that one does not prevent people from coming to the courts, because it is important that justice be done openly and publicly. I am not suggesting that we do it now, but in due course I think we may have to investigate whether our courts should in fact become spectacles in which people’s private affairs are exposed for the enjoyment of those who have nothing better to do than to sit in court and listen to that kind of thing. While I want the courts to be open, while I believe that justice must be done publicly, I think there must be some degree of protection of the privacy of the individual with regard to this kind of activity.

Having made these submissions, there are some other matters of detail to which I should like to refer at this stage. In regard to clause 1, for instance, the question which troubles me is when actually a divorce action commences. Does the divorce action commence when the notice of motion is issued in order, for example, to apply for the substituted service of process or to obtain leave to sue for edictal citation, or does it actually start when the summons is issued? This may be important in a number of respects and the definition of what is a “divorce action” to my mind seems to cast some degree of doubt and vagueness on what is intended here. Perhaps that particular aspect might well be cleared up in the circumstances.

There are certain other minor matters to which I should like to refer. In regard to clause 4 the question arises whether it is, in fact, necessary for the detailed grounds for the break-down of a marriage to be set out and whether it is not enough to accept that, where there is an irretrievable break-down, that should be sufficient In regard to clause 4(3) one wonders whether the grounds set out in paragraphs (a), (b) and (c) are proof of irretrievable break-down and whether they are not merely evidence of irretrievable breakdown. With regard to subsection (4), in my submission it should be for the parties to decide whether they can become reconciled and it should not be for a judge to decide that, in his opinion, the parties can become reconciled. The judge may well be a person who is very nobly inclined and does not really believe in divorce, but who believes, perhaps, that if one keeps on postponing the proceedings, one may perhaps obtain a reconciliation in the circumstances. I believe that is a matter that should perhaps be looked at as well in the circumstances.

It is intended that this Act shall become law on 1 July 1979. At the same time it is stated in clause 15 that “this Act shall not apply with reference to a divorce action or proceedings for the restitution of conjugal rights or for judicial separation instituted before the commencement of this Act.” I read an article, only a few days ago, in which a lady jurist, I think it was, said that perhaps people should consider now whether it is better for them to sue quickly or to wait to sue after 1 July 1979. I regard that as an undesirable situation and I wonder whether the hon. the Minister will not make it clear that we should bring this Act into force as soon as it is promulgated, because to my mind it seems illogical that people should now hurriedly sue for a judicial separation, thereby creating a problem situation, which they could not do if they were to sue in a couple of months’ time. It may well be that the hon. the Minister will say that he will fix the date as 1 June or something of that sort, but it does not seem logical to me that one should suddenly rush in with a law suit to get a type of right which the legislature has in fact decided should disappear. I think that, where there are vested rights, they should be protected, but I do not believe that one should now create the possibility for a sudden rush of this kind by people who want to sue for a particular type of relief in anticipation of this Bill becoming law. These are the submissions I make and I support the Second Reading of the Bill.