Mr. Speaker, I move—

Mr. Speaker, before deciding on the motion which is before the House, I wish to ask the hon. Leader of the House two direct questions. The first one is whether the Government is prepared to allow the Select Committee to amend the Bill in such a way as to limit the scope of the prohibition on investigatory journalism, or whether the Government considers that the prohibition on investigatory journalism before the tabling of a report by the Advocate-General is a principle which cannot be amended. This is fundamental to the question whether the Select Committee will be a genuine opportunity to improving the Bill or whether it can only effect a cosmetic change of wording, a change which would not affect the inherent unacceptability of the limitation of Press freedom. We should like to know whether the Government’s attitude is that it stands by the limitations and the time period of prohibition, or whether it is prepared to consider a limitation of the scope. In other words, will the Government be prepared to accept a change to the prohibition on publication?

The second aspect on which I wish to ask the hon. Leader of the House to tell us what the attitude of the Government is, relates to the principles involved here. Is it a principle that publication prior to the submission of a report by the Advocate-General may be prohibited? Is that a principle of the Bill? That is what we want to know because the statement issued by the Government has not been clear.

I believe it is necessary, before this Bill disappears into the realms of confidentiality of a Select Committee, that we should know just what the powers of the committee are going to be, whether a material change will be possible.

I want to state that, whether we serve on the Select Committee or not, we are totally opposed to the principle of a prohibition on investigatory journalism. If we serve it will be solely in order to soften the effect of that on a free Press in South Africa.

Mr. Speaker, I also want to put a very simple question to the hon. the Minister. I want to ask him whether the Select Committee which is sought to be appointed now will have the power to hear oral evidence and to call for documents.

Mr. Speaker, I am a little surprised that the hon. member for Durban Point, a person who is such an old and experienced member of this House, can put questions of such a nature to me on this motion.

I just want it placed on record.

Of course the hon. member is entitled to ask any nonsensical question. [Interjections.] This Bill is now being submitted to a Select Committee. A Select Committee is master of its own activities and may consequently stipulate from time to time what falls within the scope of its terms of reference and what does not.

As I see the matter, this Bill contains two important principles, and these were passed during the Second Reading of this Bill. In the first place there is the appointment of an Advocate-General, of a person in the post of Advocate-General. Secondly, there is a restriction on publication. In as far as this Bill is being referred to a Select Committee, it is being done, as I have already emphatically stated, in order to iron out any difficulties in the wording of the various clauses and to effect the necessary adjustments. Therefore it goes without saying that in the process there could be an encroachment on the scope of the restriction imposed on publication.

Therefore the time-limit is not a principle.

The important provision is that there must be a prohibition on publication. Of course the Select Committee can discuss the scope and the effect of this prohibition and make amendments in that connection. I can hardly conceive of any amendment with regard to publication which would not affect the scope and the effect of publication. However, the principle of a prohibition on publication was accepted during the Second Reading debate and this means that that principle as such cannot be affected.

And the time-limit?

The time-limit is one of the subsidiary components of this principle. It is regarded as part of the effect of the prohibition on publication. I foresee, and I am prepared to concede this, that changes will be allowed with regard to the scope of the prohibition on publication. However, the prohibition on publication is a principle which was accepted during the Second Reading and may consequently not be changed.

The hon. member for Groote Schuur asked whether the Select Committee could hear evidence and could call for papers. I made this matter very clear yesterday. In the motion now before the House, no provision has been made for this. The hon. member will realize that if this were allowed, it would be absolutely impossible, as is being envisaged by the Government, to complete the activities of the Select Committee and to have this legislation placed on the Statute Book during the present parliamentary session. Yesterday I explained clearly that this was what we were envisaging. In other words, papers will not be called for, nor will oral evidence be heard. I said that I would go to the Cabinet to obtain permission for the appointment of a Select Committee in the understanding that the Select Committee would set about its activities in such a spirit that we shall be able to receive its report by the end of next week.

Mr. Speaker, I move—

Mr. Speaker, it is not my intention to elaborate in the course of this debate on all the arguments advanced during the Committee Stage in particular. Now that we have reached the Third Reading we have to examine how the Bill is going to work. Although we still stand firmly in our belief that a far simpler, quicker and cheaper procedure could have been arranged, we accept the Bill and we shall have to make the best of it. Naturally we are disappointed that a number of the amendments which we moved during the Committee Stage with a view to improving the Bill, were not accepted by the hon. the Deputy Minister and we are now faced with the Bill as it stands. The amendments which we moved during the Committee Stage were in keeping with the arguments which we in the official Opposition had advanced during the Second Reading.

We supported the Bill’s Second Reading and we are also supporting its Third Reading because we feel that the Bill is necessary. It was only the question of method which led to a measure of dispute, and now that we have reached the Third Reading, there is only one matter which needs examination.

It is our contention that the very, very important principle of natural justice, that everyone should have the right to legal representation before the committee, must be established beyond all doubt. I think I interpret their speeches correctly if I say that it appears to me that the hon. the Deputy Minister and other hon. members on the opposite side agree that there should be such legal representation. Nevertheless, I think that there is still a measure of doubt as far as that is concerned because, with all respect to the hon. learned member for Namakwaland, not all the arguments which have been advanced are in keeping with his arguments. We contend that the legislation should provide a specifically for legal representation. If the Bill does not contain a specific provision in that regard, the question of legal representation is to be decided by the body which has a discretion whether or not to allow legal representation. Legal representation will therefore not be a legal right, a right of natural justice. If legal representation is refused, it will give rise to an unhealthy situation.

I should like to refer hon. members to the provisions of Standing Order No. 86, which deal with the procedure to be followed when a hybrid Bill is being opposed. The Standing Order reads—

So this is specifically provided for.

Then there is the judgment of Mr. Justice Baker in the case of Bell to which I referred the hon. the Deputy Minister yesterday during the Committee Stage. I am able to help the hon. the Deputy Minister at this stage in respect of that case. The case is actually that of Bell v Van Rensburg, NO. and it is quoted in the Law Reports of 1971, vol. 3. On page 693 one finds the introduction which in part reads as follows—

What is of specific importance in this report is the following on page 716—

It is the hon. member sitting on my right—

Then they refer again to the McLaughlin case. Finally, as regards Judge Baker’s judgment I shall just quote from page 731.

It is not necessary to go any further. I concede your point.

Case won with costs, Mr. Speaker!

Sir, I shall conclude with that. I trust that the hon. the Deputy Minister, as he indicated earlier, will effect the necessary changes.

Mr. Speaker, in the first place I want to thank the Opposition for supporting the Third Reading. I want to express the hope that this Bill will be of very great assistance to many firms of attorneys in the rural areas. We are aware of the fact that throughout this country problems such as those depicted in the Bill, have to be dealt with by firms of attorneys. In fact, this debate has revealed what a real struggle it sometimes is to deal with cases of this type. I want to express the hope today that this Bill, when it is placed on the Statute Book, will be of great assistance to the firms concerned.

I just want to refer to clause 9, in reply to the points made by the hon. member for Hillbrow in particular. In the limited time at our disposal this morning, we spent some time in consultation with the State Law Adviser, particularly with regard to the case Bell v. Van Rensburg. It emerged from these consultations that while a person has the inherent right to submit the facts of his case to a land subdivision committee, it cannot simply be accepted that he is entitled to legal representation before the committee. It is still in the committee’s discretion whether he may have legal representation or not. This involves a fact-finding committee, and the committee being created by this Bill is a fact-finding committee. For that reason I gave the undertaking during the Committee Stage, and I want to repeat it now, that we will go into the matter very thoroughly, particularly because there is still some difference of opinion, and if it is deemed necessary to provide for this in the Bill, I shall move an amendment in the Other Place to rectify the problem with regard to legal representation. I give that undertaking. We shall do so within the next few days. In any event I shall keep the hon. member for Hillbrow informed of the latest developments with regard to the decision taken on this matter.

I want to thank all hon. members who participated in the discussion on this Bill. I want to repeat that I think that the provisions of the Bill will greatly benefit many of those people in the rural areas who have problems in obtaining their title deeds.

Question agreed to.

Bill read a Third Time.

Mr. Chairman, in a somewhat late hour discussion last night I gathered from the hon. the Minister that he considered the words “may” and “shall” in clauses 3 and 4 as having to hang together and that if we changed “may” to “shall” in clause 3, we would have to change “may” to “shall” in clause 4, and vice versa. I also gathered from him that if he could not agree to the change, the word “may” would have to remain in both clauses. One of the major reasons the hon. the Minister advanced for this was that he would have difficulties with clause 6, in which the word “shall” is used in laying down that the court “shall” not grant a divorce until adequate provisions have been made with regard to the custody and maintenance, etc., as far as minor children were concerned. I understand that point of view very well, just as I understand the hon. the Minister’s point of view when he states that he is worried about the position of women who might be left unprovided for if it is mandatory for the court to grant a divorce once it is satisfied that the marriage has irretrievably broken down. I understand that. I did suggest that obviously things would have been easier if the Matrimonial Property Amendment Bill had already been passed so that the future of such women, or even spouses, would have been guaranteed. However, there is the possibility that in terms of ensuing clauses one can see to it that the court does consider these matters before granting the divorce.

I want to make a final plea to change the word “may” back to “shall” in clause 4. In other words, I want to restore the wording which the Law Commission suggested in its draft Bill. The reason why I do so is because I believe, as I have mentioned last night, that we are introducing a considerable degree of uncertainty into the legislation regarding divorce, with the result that nobody will be absolutely sure on what grounds a divorce will be granted. At the same time the hon. the Minister was trying to regulate the consequences of divorce by nullifying the grounds for divorce. I think that will make a bad law in South Africa. In order to cope with the hon. the Minister’s difficulties as far as clause 6 is concerned, I now propose to move the following further amendment—

In other words, it shall only be mandatory for the court to grant a divorce once the irretrievable breakdown of a marriage has been proved to the satisfaction of the court— that degree of discretion therefore remains— providing the terms of clause 6 have also been met. I hope the hon. the Minister might be more favourably disposed to consider this amendment rather than just the straight substitution of the word “may” by the word “shall”.

Mr. Chairman, I think it behoves us in these benches to react to this “may/shall”-controversy. Hon. members are aware of the fact that I reacted to the proposal by the hon. member for Houghton under clause 3. I feel it is right that I should now react to the suggestion she has made that in line 20 the word “may” be changed to “shall”. The crux of her amendment means that in the event of a court having determined the fact that a marriage has reached that stage of disintegration where there is no reasonable prospect of the restoration of a normal marriage relationship, the discretion is taken totally out of the hands of the judge. He has to grant the divorce if he is satisfied that there has been an irretrievable break-down. It takes totally out of the hands of our judges the discretion which I believe they should have, as of right, because of their position.

What discretion do they have now?

The situation, as the hon. Minister himself has said, is that there could be circumstances—and I should not like to suggest what those circumstances could be, but the item mentioned in clause 6 of the Bill is only one of these circumstances …

I have covered that.

The hon. member has covered that, admittedly. However, I do not think that the hon. member for Houghton can really state categorically that she is now absolutely certain that there can be no additional extenuating circumstances which would cause the judge not to want to grant this divorce.

It is not a crime.

It is not a crime, admittedly, but at the same time, as I have said, there could be extenuating circumstances, and inter alia, we in these benches are prepared to allow that the judge in these divorce cases should have the discretion to grant the divorce if he finds that there are other circumstances which he believes should be taken into consideration and which he believes are important. These circumstances might relate to the children in the marriage, they might relate to property rights in terms of the marriage and they might relate to the health of the persons who wish to get divorced—there could be so many factors involved.

Another argument that can be advanced is that perhaps one will sometimes come across a judge who, because of personal experiences or because of his religious views, will not be prepared to grant a divorce because he is basically opposed to divorce as such. The amendment which the hon. member for Houghton has moved would tie that particular judge’s hands. I do not believe that we can legislate on the basis that a judge might make a mistake or that a judge might have something personal against divorce. If when we formulate legislation, we try to legislate for that sort of situation, then our legislation will become totally unwieldly and what we shall in fact be doing, is ensuring that Parliament becomes the judge and the jury as well. Therefore, we in these benches cannot agree to the substitution of the word “shall” for the word “may”, for the reasons that I have outlined.

Mr. Chairman, I should like to come back to the subject and deal specifically with the points the hon. member for East London North has raised. I have very grave difficulties with the arguments which he has advanced in support of the hon. the Minister, and I would imagine that the hon. the Minister would not in fact support some of the arguments which have just been advanced now. The problem we are now talking about is that, apparently, there can be extenuating circumstances why there should not be a divorce. I am sure the hon. the Minister will not agree with that because, quite clearly, we are trying through legislation to introduce a degree of certainty in regard to something which is a matter of status in that people should know on what grounds they can in fact dissolve a marriage. To start talking now about extenuating circumstances and about wide discretions on every conceivable ground, I think is creating a situation in the law which is far worse than the present situation. Therefore, it is quite ludicrous to make that suggestion. I should specifically like to ask whether it is in fact desirable to have a complete discretion in regard to anything concerning a divorce. It is true—and the hon. the Minister has said so— that a discretion has to be exercised judicially, but if there is complete discretion, then it can in fact be exercised on almost every ground as long as it is judicially exercised. I asked the hon. the Minister specifically: If, for example, one can show irretrievable break-down of the marriage and if one has shown valid grounds on which one is entitled to get a divorce, but in those circumstances the defendant comes along and says that he happens to know that the plaintiff committed adultery the previous day, is that a ground on which it should be refused? Yesterday the hon. the Minister indicated by a movement of his head that it was not so. I agree with him that it is not and that it should not be. This whole concept has now changed in that we are moving away from a fault situation to an irretrievable break-down situation. If we allow for complete discretion, the judge can say that he believes that, even though all the facts have been proved, there are factors why the divorce should not be granted. What could be the grounds, other than certain conduct on the part of the plaintiff, which could result in that discretion being exercised?

I think we all agree that conduct as such is covered by the issue of irretrievable breakdown. In other words, once there is an irretrievable break-down, the fact that the plaintiff or the defendant may be a particular kind of person or may have indulged in particular kinds of conduct, becomes irrelevant. What is then left? We are left with the situation that, firstly, the judge may think that there is still a chance for a reconciliation. That is being covered by means of the right to postpone. Even though I am not enthusiastic about the right to postpone because in the judge’s opinion there might be a reconciliation, it is part of the Bill and one can therefore accept that situation.

The second consideration is that it may affect the position of the children. That is now specifically covered in the amendment which the hon. member for Houghton has moved. Even on that there can be a difference of opinion, because there seems to be no reason why, as happens at the present time, one cannot in fact grant a decree of divorce and leave the question of the custody and the guardianship of the children to be dealt with separately by that court. It is done now; I have often seen it done. The fight is not normally over the fact that neither party wants custody of the children; the fight is normally about who is going to get it According to the law there are certain implications when there is no court order. The argument that one actually has to decide on an arrangement in respect of the children, before a divorce is in my opinion not a sound one in any case. The hon. the Minister wants it that way, however, and it is catered for by the hon. member for Houghton in her amendment.

What is the next provision? The suggestion was made that one might have to decide the property arrangements between the spouses. I indicated yesterday that the procedure at the moment is that, once one gets an order for a division or for forfeiture, if the parties do not agree, one appoints a liquidator to undertake that I want to say without any hesitation that the court cannot ever act as a liquidator, because it is an impossible task. One has for example to collect assets and also to sell them. The court will always have to appoint somebody to attend to these property matters. Quite clearly, Sir, the question of property cannot hold up a divorce in these circumstances. What is then left? I want to suggest to the hon. the Minister that the amendment that has now been moved by the hon. member for Houghton covers the situation, and that there are no other grounds why a discretion should be exercised to refuse a divorce on the grounds of irretrievable breakdown, which are not covered in respect of the provisions of clause 6(1) and are not covered by the right to postpone. In those circumstances, I must say that I find that the hon. member for Houghton has now, with her amendment, gone as far as can reasonably be expected in order to cover a situation in terms of which one will now get certainty in the law. Therefore I must say that, even though this is an open matter, I fully support the amendment of the hon. member for Houghton.

Mr. Chairman, I shall admit that the hon. member for East London North should perhaps not have used the words “extenuating circumstances”, but I can find no fault with the rest of his argument. When the status of individuals is at issue, there are so many factors which have to be taken into account, particularly in a marriage, that it is impossible to try and examine in this House all the possible circumstances which could come before the court. So there are many things that could compel the judge, if he has the right to do so, to say that under these circumstances, in spite of the fact that an irretrievable break-down of the marriage has been proved, a final divorce should not be granted. One should never forget that a marriage actually is sui generis. It is not quite the same kind of contract one enters into when one draws up a contract. It remains a contract between individuals who have entered into a contract with each other for emotional reasons. They have entered into a contract with each other, not on logical grounds, but because feelings had been aroused. The law attempts to lay down in a contract that emotional state of people with regard to a marriage. When that marriage breaks down, however, one is faced with a far more intense emotional state. Factors may arise which may cause the judge to deem it desirable not to grant the divorce. I can think of many such cases. The hon. member for East London North rightly said that one should not spell out too many cases, because the hon. member for Houghton then replies to them and moves some amendment or another.

There could be many factors, however, which could place the court in such a situation. I want to mention only one example. People may decide to build up a business together. It takes years for them to build it up and large capital investments are necessary. Before that business becomes profitable, however, the parties separate; an irretrievable break-down takes place.

Is that a reason for not granting a divorce?

We have to realize that the court is in no position to determine what the real value of such a joint estate is.

That is in any case not the task of the court.

It is the task of the court to ensure that it is not unjust towards the defendant [Interjections.] It is the task of the court to see whether such a marriage can be saved or should be kept alive for other reasons.

Keeping a business going is something quite different.

One cannot adopt a juridical attitude towards the feelings of individuals. One cannot simply determine juridically that an irretrievable break-down has taken place and that the marriage is therefore at an end. There are other factors which have to be taken into account as far as marriages and divorces are concerned. One cannot consider this purely juridically. It is simply impossible. Therefore I still believe that the word “may” should remain in the Bill.

On further amendment moved by Mrs. H. Suzman,

Question put: That the word stand part of the clause,

Upon which the Committee divided.

As fewer than 15 members (viz. Mr. B. R. Bamford, Dr. Z. J. de Beer, Messrs. C. W. Eglin, J. F. Marais, H. H. Schwarz, Dr. F. van Z. Slabbert, Mrs. H. Suzman, Messrs. R. A. F. Swart, S. S. van der Merwe, and A. B. Widman) appeared on one side,

Question declared affirmed and amendment dropped.

Amendment (1) moved by Mrs. H. Suzman agreed to.

Amendment (2) moved by Mrs. H. Suzman negatived (Mr. B. R. Bamford and Mrs. H. Suzman dissenting).

Amendment moved by Mr. A. B. Widman agreed to.

Amendment (3) moved by Mrs. H. Suzman negatived (Mrs. H. Suzman dissenting).

Amendment (4) moved by Mrs. H. Suzman negatived (Mrs. H. Suzman dissenting).

Amendment (1) moved by Mr. H. H. Schwarz negatived (Messrs. B. R. Bamford, H. H. Schwarz, Mrs. H. Suzman and Mr. A. B. Widman dissenting).

Amendment (5) moved by Mrs. H. Suzman negatived (Mrs. H. Suzman dissenting).

Amendment moved by Mr. R. de V. Olckers agreed to.

Amendment (2) moved by Mr. H. H. Schwarz negatived (Messrs. B. R. Bamford, J. F. Marais, H. H. Schwarz, Mrs. H. Suzman and Mr. A. B. Widman dissenting).

Clause, as amended, agreed to.

Clause 5:

Mr. Chairman, I move the following amendments—

1. (2) on page 4, in lines 57 to 63, and on page 6, in lines 1 to 7, to omit paragraph (a);
2. (3) on page 6, in line 10, after “ill” to insert:

I do not really know whether the amendments that I have moved in addition to those printed in my name on the Order Paper will be in order since we have disposed of the “may/ shall” argument in dealing with the previous clause, but I have nevertheless moved them and wait upon your decision in that matter. Meanwhile I want to continue by motivating those amendments that are printed in my name on the Order Paper.

I am worried about the fact that a court may only grant a decree of divorce on the grounds of the mental illness of the defendant if, it seems to me, it is satisfied that the defendant has actually, in terms of the Mental Health Act, been admitted as a patient to an institution in terms of a reception order, is being detained as a President’s patient in an institution or other place or is being detained as a mentally ill, convicted prisoner at an institution or hospital prison for psychopaths. I do not really think that it is necessary for a person to have to be detained in these places for it to be quite impossible for the spouse of the mentally ill person to continue with the marriage. I realize that the spouse can claim irretrievable breakdown, but this factor is being added specifically as additional grounds for divorce. I therefore think one ought to widen it by simply having it read “a person who is mentally ill”. It should not necessarily refer to a person who is confined to an institution. It could be equally impossible for a spouse to live with someone who is mentally ill, for example a psychopath whose actions are so unreasonable as to make life a perfect hell. I should just like to quote the definition of “mentally ill” in the Act to which this clause refers, the Mental Health Act of 1973. Mental illness—

I therefore feel that if a person has been certified by a doctor as being mentally ill, and has no chance of recovery—for that aspect is also covered by the clause—that should be sufficient to enable the other spouse to bring the fact forward as a ground for divorce with a reasonable hope of having a successful action. I do not think it should be necessary for a person actually to have to be confined to an institution before mental illness can be advanced as grounds for divorce.

Mr. Chairman, this is of course a clause which in essence deals with aspects on which people in the medical profession express their opinions. The fact of the matter is that medical practitioners, psychiatrists, etc., appeared before the Law Commission. The argument has been advanced that the clause should only be applicable in the case of a patient who had in fact been referred to an institution and whose mental illness was of such a nature that he was not discharged unconditionally as a patient of an institution for a continuous period of at least two years. Nor should there be any reasonable prospect that he will be cured of his mental illness. These provisions were formulated in consultation with the Department of Health and the psychiatrists who gave evidence before the Law Commission. The psychiatrists testified that it could only be established in an institution whether the patient’s illness was of such a nature that he could not be cured.

Therefore I am not prepared to tamper with this recommendation of the Law Commission, in spite of the fact that I have a certain measure of sympathy for the argument of the hon. member for Houghton. Since it is purely a technical matter, I do not think that we should tamper with the considered opinion of the Law Commission which is based on medical evidence.

Mr. Chairman, in connection with subsection (2) of the clause there will be a small number of people who will welcome the new provision with great feeling because it introduces new principles into the legislation. The fact that these provisions had never before been included in our legislation was a source of heart-ache to people over a period of many years in that the continued unconsciousness of a spouse was not an accepted ground for divorce. The ground for divorce constituted by the continued unconsciousness of a spouse is probably the ground which can be measured to the most objective degree as opposed to the subjective assessments that have to be made in connection with the most other grounds for divorce. There are certain scientific ways of assessing the likelihood of continued unconsciousness. The best known of these of course is the electro-encephalograph. The provisions of subsection (2) also call for the opinion of two medical practitioners.

We welcome this subsection since there will be people who will be very relieved that this provision has been incorporated into the Bill as similar provisions were due to be raised last year, but the legislation did not come before the House.

I wonder whether the hon. the Minister could assist me with the provisions of subsection (2)(b), line 19, page 6. The subparagraph deals with the requirements of having to hear the evidence of at least two medical practitioners, one of whom shall be a neurologist or a neurosurgeon. I wonder if the hon. the Minister could just indicate to us whether a written affidavit will be acceptable as the required evidence or whether the personal appearance of the neurologist or neurosurgeon will be required.

The reason I raise this is that in South Africa we are noticeably short of neurosurgeons and neurologists. Court proceedings in divorce cases can be time-consuming and I think it might be a time-saving factor for these extremely busy medical specialists if an affidavit could be accepted. I wonder whether the hon. the Minister could give us an indication whether their evidence could be presented in the form of a written affidavit. My request is merely for information in that regard.

Mr. Chairman, in such a case the medical practitioner normally draws up a complete report which is submitted beforehand, together with the other relevant documents. The medical practitioner then comes to court himself and explains what his report means. The hon. member should realize that the court always adopts the view that it is a layman. Consequently, all the technical terms have to be fully explained to it. Of course the medical practitioner also has to be available for questioning. We find in practice that the whole process does not take very long. When the persons involved come before the court, they are immediately heard and their evidence is dealt with. If there is no objection to it, I can imagine that, if permission is obtained for doing so, the information may simply be presented. But if anything should appear in it which the judge wants to know more about, the individuals concerned will have to be available to give evidence.

Mr. Chairman, I should like to refer the Committee to subsection (3) which provides that—

My first question to the hon. the Minister is at what stage it is contemplated that the court will appoint a legal practitioner to render assistance. I hope it will not be at the time of a simple hearing with respect to the defendant I hope it will be at the commencement of the action, i.e. as soon as the summons has been issued, should no appearance by a legal representative have been entered and there is the indication that the defendant is not represented. If the case is going to be contended and maintenance is required, it will be vital at that stage. An application of pendente lite may be required for the maintenance to be supplied. The defendant may not be aware of his or her rights in that respect. That is particularly true of the female partner who may require maintenance for herself and for a minor child as well. The first question, therefore is when it is contemplated that the legal practitioner will be appointed. I hope it will be at an early stage.

I take it as read, obviously, that the legal practitioner will be an advocate if the case is being heard in the Supreme Court and an attorney, possibly, if the case is being heard in the central divorce courts, i.e. the divorce courts dealing with divorces for Blacks. In that case I think special attention is going to be required. In so far as the White people are concerned, a divorce is usually not a terribly difficult matter. We know, too, that there are plaintiffs who have instituted actions on their own without the assistance of legal practitioners at all, and who have conducted their own cases, as they are entitled to do. The Whites somehow can find their way around unless the case becomes complicated. Nevertheless, I support the view that he who has himself for a lawyer has a fool for a lawyer. Be that as it may. Where it becomes important is when the case is heard in the central divorce courts, because here we have a slightly different situation.

I think I indicated at the Second Reading that, if application is made for a hearing in December, no date can be set before May. This shows how congested the rolls are. With two courts sitting daily in Johannesburg and the roll full all the time, many of the cases are contested but are not defended. In the case of the Blacks we have a special situation in that, while they may have lived apart for 12 months, that may be simply in accordance with their custom. The wife may be in the homeland while the husband works in the urban area. She may visit him on occasion and vice versa. The whole set-up is, therefore, different. Their customs are different. Their property rights are different. In this regard particularly I should like to make an appeal—although it cannot be provided for in the Bill at this stage, I hope that somehow the House may be able to do something about it —that when it comes to the central divorce courts, practitioners will be called upon to assist people in divorce actions. I think that in this regard we will need a panel of attorneys from which to draw. I know that the Legal Aid Bureau has a panel of attorneys who can be called upon in respect of legal aid matters. However, here the position is slightly different. We will have to work out how this is going to be done. We will have to decide whether the practitioner appointed will come from the roll of attorneys and advocates who are registered in a particular division of the Supreme Court or the divorce courts. We will have to find out who does this type of work and have available the attorneys and advocates required to assist in the many cases. I think that this is very important and I particularly appeal for such assistance in the central divorce courts.

Mr. Chairman, in reply to the question of the hon. member for Hillbrow, I want to say that I am of the opinion that all that this clause means, is that a substantive application for a curator ad litem will not be necessary. In the case of unconsciousness, the practitioner will in other words automatically appoint one of the advocates to do everything the curator ad litem usually does, present that fact to the court and then convince the court pro forma to confirm that the advocate has been appointed by the court and to indicate that his costs will be covered in a certain way. That is what will happen here in practice, for I cannot imagine that the court would not want a curator ad litem to be appointed for someone who has been unconscious for a continuous period. I think that such a person’s interests will in fact have to be taken into account by the court.

Amendment (1) negatived (Mrs. H. Suzman dissenting).

Amendment (2) negatived and amendment (3) dropped (Mrs. H. Suzman dissenting).

Amendment (4) negatived (Mrs. H. Suzman dissenting).

Clause agreed to.

Clause 6:

Mr. Chairman, I have two points to make on this clause. As hon. members are aware, this clause deals with the custody of and maintenance for minor children. As the hon. the Minister has rightly said, the court is always the upper guardian of the children, and will remain so at all times, making the final decision. I think it is common cause that courts will tend not to separate brother and sister in awarding custody, but regard that as undesirable. The courts will tend, I think, to continue to award custody of children of a tender age to the mother wherever possible, unless very good reasons are advanced why that should not be done. However, it often happens in contested cases, and in uncontested cases as well, that agreements are reached between husband and wife with regard to custody and indeed with regard to the maintenance of minor children as well. For that reason, I move the following amendments—

1. (1) On page 6, in lines 40 to 44, to omit subsection (2);
2. (2) on page 6, in line 48, to omit “any” and to substitute:

In terms of my amendment the court can then make an order with regard to the custody of and maintenance for minor children. I think it may just improve the Bill and may allow those agreements to become part of the order which the court may make.

Secondly, I want to draw the Committee’s attention to subsection (2). When the hon. member for Houghton moved an amendment to clause 4 yesterday, the hon. the Minister himself drew attention to clause 4(2) and pointed out that the hon. member for Johannesburg North in his argument during the Second Reading had said that the court cannot go on a sort of fishing expedition of its own, calling witnesses and making all sorts of inquiries. The hon. the Minister accepted the omission of clause 4(2). Exactly the same principle and argument apply in respect of clause 6(2), because this clause again asks the court to make investigations. In the light of this analogy and the same argument I moved my first amendment.

Mr. Chairman, I should like to start by referring to the second argument which has been raised by the hon. member for Hillbrow. He has made the allegation that there exists an analogy between the omission of subsection (2) and the argument we have had previously about clause 6. In my view, and with respect to the hon. member, there is no analogy whatsoever between these two matters. In the first instance the hon. member for Johannesburg North complained about the fact that we forgot about dominus litis and had virtually given the court carte blanche to investigate whatever it wanted to investigate. But in this particular instance we are dealing with children. The court has a vital interest in the child because the court is the upper guardian of all children. The court itself must therefore be able, as indeed it is today, to have the right to say that it wants additional evidence or some sort of report from the Department of Social Welfare and Pensions, or even that it wants to see the child in its chambers.

[Inaudible.]

No, the court is the upper guardian of all children. This is the difference. The court has a very vital interest in this and therefore one cannot fetter the court in this respect at all.

I shall not press the point.

Thank you very much.

I am unfortunately also unable to accept the preceding amendment I shall tell the hon. member why I cannot accept it. The hon. member will know of cases in which people do deal in respect of children. The one may say that if he/she is given custody of the child he/she may add R5 000 or even more to the settlement I am not in favour of inserting a provision in this Bill requiring the court to take this written agreement into account. The word “any” means that the court can take a written agreement into account or ignore it, because being the upper guardian of children it is entitled to say that it is not satisfied with a written agreement because it simply is not to the benefit of the child as far as the court is concerned. That is why I do not think we must insert a provision like this in this Bill.

Mr. Chairman, I just want to take the opportunity of reading for the record the wise comment of the National Council of Women on this clause, a comment which I think the hon. the Minister has probably also received—

This is, of course, the point which the hon. the Minister has just made, and I agree absolutely with that. It goes on to say—

I agree entirely with the sentiments I have just read out.

Mr. Chairman, in the light of the reply given by the hon. the Minister and with the leave of the Committee I should like to withdraw my amendment on subsection (2). With regard to subsection (3), however, I am afraid I must persist with my amendment for a very simple reason. I hope that I did not incorrectly interpret the hon. the Minister’s reply as meaning that because the plaintiff and the defendant have entered into an agreement, the court is not going to make that agreement an order of court or to make it a settlement, but will merely dismiss it on those grounds. With respect to the argument advanced by the hon. the Minister, I am not trying to prescribe that the court must make the agreement an order of court because we shall then again be raising the hon. the Minister’s whole argument about the word “may”. This clause states very clearly that the court “may” make an order. The court already has that discretion. It, therefore may or it may not make the order, but I do not think we should exclude the possibility that the court may make an order in terms of the agreement between the parties.

Amendment (1), with leave, withdrawn.

Mr. Chairman, I want to speak specifically about the words which are used in subsection (1), namely that until arrangements “are satisfactory or are the best that can be effected in the circumstances”, “a decree of divorce shall not be granted”. I should like to submit to the hon. the Minister that in the first place I have a grave problem in linking the divorce to the custody and other provisions relating to the children. The reason for that is that custody, guardianship, access and maintenance, which are the four essential aspects relating to children, are on-going situations. They are not finally determined at the time of the divorce. They can be varied or changed completely thereafter. Therefore in my submission the issue of the divorce of the parents being contingent upon matters relating to the children is to some extent an artificial one because what is being said is that people cannot be divorced until they do certain things. I should like to suggest to the hon. the Minister—and I do not intend to move ah amendment—that he should give further consideration to this, because the issue dealing with the matters pertaining the children is quite different from the issues relating to the other aspects of the divorce. At the present moment it is quite possible to obtain a decree of judicial separation and to have the issues relating to custody, maintenance, access and guardianship tried separately. I am not sure why this should be changed in the circumstances, because what one is really saying to people is that unless they actually do certain things they are not going to be allowed to get divorced, at least not before there has been a long trial. There may be all sorts of other social implications involved in leaving the issue of the divorce in suspension while one is involved in a long trial dealing with the other four issues. I should like to put that to the hon. the Minister merely for consideration and for investigation, because I think we may well be indulging in a change of the law which might have adverse social implications in so far as the implementation is concerned.

There is a second point I want to make to the hon. the Minister. What are the courts going to say is the meaning of the words “are satisfactory or are the best that can be effected in the circumstances”? Let me give the hon. the Minister an example. What is the best that can be done for a child? The best that can be done for a child may well be that he should go to the most expensive boarding-school and that he should have the most expensive provisions made for him. Is that what should take place in the circumstances?

In the circumstances.

That is the point. “The best in the circumstances.” It may well be that we are asking for something to be done which, while it is possible in the circumstances, and perhaps is even the best in the circumstances, might well result in a tremendous problem for the parents as such.

I am not sure whether the wording should not be—and again I put it to the hon. the Minister for consideration—“are satisfactory in the circumstances”. I think the word “best” is going to create a problem. Let us take an example. If one has to decide what is best for the child, one will have to do it in regard to four aspects. In the first place there is the factor of maintenance. What is best for the child might well be a tremendous amount of maintenance, so that he could be put on the same level as perhaps children of people in the highest income groups in South Africa. Yet that has implications. Let us take access as an example. Access may well be of such a nature that the best that can be done for a child in this regard may be of such a nature that in the circumstances it is impractical and impossible. In this regard the question of guardianship must also be remembered. Once again we must ask ourselves: What is best for the child? If we look at the analysis made by psychologists in this field, the question of division of influence is regarded as very unsatisfactory. Is it not better, virtually in every case where there is custody, that guardianship should vest in the same person who has custody? I do not know. Some people have different views on this, and the hon. the Minister is going to find himself in the situation where there will be long arguments as to whether these things are the best in the circumstances or whether they are satisfactory in the circumstances. In respect of all four of these aspects, I think we find ourselves entering a field where I believe that once the courts have to deal with the interpretation of these words, we are going to find ourselves in a situation which none of us envisaged. I have not moved an amendment to delete these words or to change them, because I regard this matter as so important that it is not really possible adequately to debate it across the floor of the House. I believe that it needs to be analysed and to be examined, and I would therefore ask that the hon. the Minister, certainly if it is passed in this form, should keep an eye on this to see how the courts are going to interpret it, because I am afraid of the social implications which may flow from this particular provision in the form in which it is at the moment.

Mr. Chairman, the object of this subsection actually is to persuade people who have children and who want a divorce to put the interests of the children first. That is the idea. At present people see to their personal interests first while those of the child take a back seat, as it were. Only as a second consideration do they ask: What shall we do with these poor mites born out of our marriage? The object of this subsection is to make people and practitioners realize that when children are involved in a divorce the court wants to know what is going to happen to the children. The children must receive the best that it is possible to achieve for them in the circumstances. The two parties would probably maintain that a certain arrangement, as they see it, is the best that could be made for the children in the circumstances and then, when the case came before the court, the court might find that it might not be the best arrangement that could be made but was, nevertheless, a satisfactory one. The whole idea is that people should come to court knowing in advance that the best must be done for the children and that there can be no divorce prior to proper provision having been made for the children. At present this is not the case.

What would happen if the parties believed that a certain situation was best while another arrangement was best in the opinion of the judge, but the parties were not willing to accept it? What would one do then? Would there be no divorce? Would we then have the situation that the marriage would continue unless the parties decided to obey the judge’s order?

The judge could order that the arrangement be made which, in his opinion, was the best. He could make that order or any other order which, in his opinion, was the best for the interested parties. If two obstinate people were to refuse to accept the court’s arrangement, the court could enforce that arrangement. The whole idea here is that one should approach a divorce with the interest of one’s children as the most important consideration, instead of one’s own interests. This is how I see the provision. However, I can have it checked again. I think, however, that this is the whole consideration behind this.

Mr. Chairman, I think hon. members should take cognizance of the fact that the concept “satisfactory” is the first concept used in subsection (1). The words “or the best” actually implies that it must be the best in the circumstances. The concept “or the best” does not indicate that it must be a better situation than a satisfactory one. I do not believe that we shall have many difficulties with this provision in practice.

Amendment (2) negatived (Mr. A. B. Widman dissenting).

Clause agreed to.

Clause 7:

Mr. Chairman, I should like to move the amendments that stand in my name on the Order Paper, as follows—

1. (1) On page 8, in lines 6 to 7, to omit “their conduct in so far as it may be relevant to the break-down of the marriage,”;
2. (2) on page 8, in line 8, after “order” to insert:
   , at the time of the divorce or at any time thereafter,
3. (3) on page 8, after line 10, to add:

I should now like to motivate them. In my first amendment I seek to omit in clause 7(2) the words “their conduct in so far as it may be relevant to the break-down of the marriage.” The reason why I move this amendment is that I was very much impressed by the argument which was advanced in the first report of the S.A. Law Commission. I should like to quote from page 11, para. 8.3—

This sums up my whole argument. I agree with every word of it. The whole idea of irretrievable break-down is not to introduce the guilt factor, the blame factor. According to clause 7(2) it seems to me that it may be necessary for the court in granting a decree of divorce to take into account, in the absence of an agreement regarding maintenance, the conduct of the parties in so far as it may be relevant to the break-down of the marriage. Therefore, I suggest, bearing in mind the arguments of the Law Commission, that those words should be omitted. That is as far as my first amendment is concerned.

I now come to my second amendment. I am informed that the law at present makes no provision for the maintenance of an ex-spouse after the divorce has taken place unless token maintenance had been granted at the time of the divorce. I am trying to make it unnecessary for the granting of token maintenance. Token maintenance is very often not granted, because at the time of the divorce the income of both spouses seeking divorce, their material assets, etc., make it unnecessary for them to claim maintenance.

However, fortunes change, as all of us know. People who are well off at one time in their lives can often end up not so well off at all. The ex-spouse may, in the meantime, have become extremely affluent. I believe that instead of making it necessary to have token maintenance, it will be very much easier if we simply insert the words “at the time of the divorce or at any time thereafter”. It means that at any time after the divorce, and of course also at the time of the divorce, one or the other spouse can claim maintenance. It seems to me to be a reasonable amendment to move.

My third amendment, I must say, was largely owing to the fact that I was really arguing the whole question of “shall” or “may” in clauses 3 and 4. I know the hon. the Minister is very worried about the non-provision for one of the spouses. Thereafter I wanted to add the wording as proposed in my amendment I still believe it is not a bad idea, in view of the fact that the Matrimonial Property Act has not yet been amended. A Bill to that effect has not yet been introduced. Therefore, we should still add—

The idea is simply to ensure that a woman who finds herself divorced—a woman who, had she remained married under the present legislation, could have refused a divorce and could thus have ensured that in the event of her husband’s death she would still technically have been his widow—will still be in a position to inherit from the estate of her late ex-husband. I believe it is necessary to make sure that the court will take into consideration such possible material gains which would have accrued to the ex-wife had she remained married to her deceased ex-husband.

Mr. Chairman, unfortunately I cannot agree with any of the amendments moved by the hon. member for Houghton. I believe she should also consider her first amendment—in which she refers to the conduct of the parties which is to be taken into consideration—in the light of the supplementary report of the Law Commission with reference to English law and the case of Wachtel v. Wachtel, 1973, in which Lord Denning said in his ruling that the fact that the conduct of the parties had again been referred to did not imply that the guilt principle was suddenly being brought back, and that in every divorce, regard should be had to a kind of division of damages. He also made the point that the British Parliament had ruled that guilt had disappeared as grounds for divorce. The re-introduction of the concept of “conduct of the parties” is only concerned with circumstances in which the conduct is so exceptionally unreasonable that the court is obliged to intervene. These are circumstances, therefore, in which public opinion, too, will not allow a party to go scot-free on account of his own conduct. It also means, by implication, that a party cannot enrich himself in an unwarranted way through his own deliberate actions.

Consider, for example, the case of a poor young lady who married a rich old man. She decides to make life impossible for him. The marriage is dissolved, and on the basis of all the facts, except her conduct, she must be entitled to maintenance.

You are worried about the old men. I am worried about the old women. [Interjections.]

Mr. Chairman, it seems to me that the hon. member for Houghton and I should rather have chosen our examples the other way round. It might have been better under the circumstances. The attitude of the British courts in their interpretation of this provision—a provision in their legislation which is identical to ours—is that the conduct of the parties should not be specifically examined in all cases in determining maintenance.

I have a limited degree of sympathy with the second amendment moved by the hon. member, in which she proposes that it should be possible to grant maintenance at any time after the divorce. However, I also suggested during the Second Reading debate that the Law Commission might look at this matter again with a view to examining the question of whether the obligation to pay maintenance cannot be changed within a certain period, because of changed circumstances, into the right to receive maintenance. I think this would be meaningful if the circumstances at the time of the divorce are exceptional, but then a time limit should be imposed, because a person must be allowed to plan his whole future properly. If a man or woman remarries and he or she plans his or her future income, and then suddenly finds himself or herself in the position where money has to be spent on maintenance which has not been bargained for, it could create an impossible situation.

What about the first spouse who finds himself or herself in unexpectedly bad circumstances which could not have been foreseen?

I have told the hon. member that I sympathize with the idea to a certain extent, but I am afraid I cannot give my unqualified support to her amendment, because there are many implications which have to be considered. I think it would be a good thing for the Law Commission to investigate it again before we consider her amendment.

As regards the hon. member’s third amendment, clause 7(2) provides in any event that regard may be had to the existing or prospective means of the parties, and pensions, annuities and paid-up insurance policies or policies that have already accrued to either of the parties form part of the existing means, after all. Therefore they will have to be taken into consideration. Policies which will accrue to either of the parties in the future are covered by the reference to “expected means”.

At this stage, I wish to move the two amendments printed in my name on the Order Paper, as follows—

1. (1) On page 8, in line 1, to omit “agreement in regard to maintenance” and to substitute:
   order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other,
2. (2) on page 8, in line 10, after “other” to insert:
   for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur

Both amendments are quite clear, I believe, and require very little explanation. The first one is intended to remove the misunderstanding or the possible misconception that the use of the words “in the absence of an agreement in regard to maintenance”—the agreement is referred to in clause 7(1)—may be interpreted to mean that the court does not have the power to amend an agreement submitted to it with regard to the amount of maintenance. I propose that the words “agreement in respect of maintenance” be deleted and replaced with others, whereupon the provision will read as follows—

If this amendment is accepted, the competence of the court will be affirmed to intervene mero motu by amending an agreement submitted to it in terms of clause 71.

The second amendment is only intended to make it clear in law that the maintenance duty falls away upon the death or remarriage of the person entitled to maintenance.

Mr. Chairman, the hon. member for Randburg has moved two very reasonable amendments which I believe we in these benches can support.

With this clause I have a problem which I wish to bring to the attention of the hon. the Minister. I have not put an amendment on the Order Paper, but I should be glad if the hon. the Minister would give some thought to a suggestion—perhaps the suggestion which I am going to make will come up in another Bill—relating to the division of assets. If one looks at the bottom of page 6, one sees that where there is a written agreement between the parties, an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other can be made.

In passing I could perhaps query the use of the word “or” there. I wonder whether one should not rather have the word “and” to make it quite clear that the court can make an order for maintenance and for the division of assets.

“Or” in that context means “and to a degree”.

I agree that that is the case, but I think that a slightly clearer wording would be “and”. That, however, is a small matter of semantics.

When one comes to the second part of the clause, one finds that in the absence of an agreement the court can only make an order in respect of the maintenance by the one party to the other. In terms of the Bill the court cannot, in the absence of an agreement, make any order in regard to the division of assets. I wonder whether this is entirely right. One can encounter a situation of two people having been married under antenuptial contract Of course, in the case of people married in community of property this does not apply. In terms of an antenuptial contract, perhaps drawn up many years before, the wife may, let us say, only be entitled to the house. This is a fairly common type of provision in an antenuptial contract If a divorce takes place, the house automatically goes into the name of the wife. Both spouses may, over the years, have worked, though both need not necessarily have had jobs in business. The wife may have worked hard in the home, bringing up children, etc. As a result of their joint work the whole basis of the marriage may have improved tremendously and a whole lot of assets may have accrued to the particular partnership. However, because of an antenuptial contract a wife of perhaps fairly advanced years may find herself getting a very poor division of the assets of the marriage. I must confess that this does worry me. I think that if the court could make an order in terms of division of assets, it could be of tremendous advantage to people who have given a lot to a marriage, over a period of years, but who suddenly find themselves out in the cold with a very inequitable division of assets.

Mr. Chairman, I should like to react to a couple of amendments and also make a couple of further points. Firstly, I recognize the validity of the amendments moved by the hon. member for Randburg, and as such I propose to vote for them.

This brings me to the amendments moved by the hon. member for Houghton. The first amendment actually goes right to the crux of the Bill. The issue is whether conduct, which has contributed to the break-down of the marriage, is still going to be at issue in some form or another. I go back to a point made earlier. In terms of these provisions, instead of having long, protracted trials about whether there should be a divorce or not, we are going to have long, protracted trials about issues of maintenance and forfeiture of benefits and property rights in terms of the marriage. I am therefore not sure that we are achieving very much at all, except that it is now going to be easier to obtain a divorce per se. The parties will still have to bear in mind, however, that they could be involved in tremendously long lawsuits about the other issues. I merely refer to my own experience, and I am sure also the experience of the hon. the Minister and other hon. members who practise law. I have actually had very little difficulty, in lawsuits, with the question of whether there should be a divorce or not.

I have, however, had difficulties with people who will not agree to a divorce unless the other spouse does this or that One spouse may say that he or she will only give the other spouse a judicial separation out of spite. The one spouse may also insist on a judicial separation because he or she wants to make the other spouse pay dearly for a divorce. So the point at issue always seems to be one involving money, or otherwise the custody of children. So what time-saving is there really if we maintain the issue of fault in relation to these matters? I doubt whether we can have this changed at this particular place and at this particular point in time, but I think that this whole question of fault should go back to the Law Commission so that they can look at it again with a view to reducing the length of litigation involved in matrimonial matters. That seems to me to be a vital issue. I really think that the hon. the Minister should ask the people concerned to devote some more time to this.

The hon. member for Houghton’s second amendment I cannot support. I believe that if there is no maintenance order at the time of the divorce—and I doubt whether in the existing circumstances courts are in the future going to agree to make nominal maintenance orders in order to keep this alive—it is utterly wrong to hold a sword of Damocles over the head of one of the spouses for the rest of time on the basis that, where no maintenance order was made at all, the other spouse can come along years later and ask for a maintenance order. I think it is wrong to hold that sword of Damocles over them. I think the hon. member for Randburg made the point that a person can get remarried on the basis of what he believes is his financial position, and that suddenly, dramatically, his whole life can be shattered because he is faced with an application for maintenance when he never thought he had any liability at all. Therefore, with respect, I cannot support that particular point.

I also want to react to what the hon. member for East London North has said. I do not believe that one can create a situation in terms of which people who were married but of community of property, deliberately married out of community of property, get divorced, and one of the parties can say that he or she wants a share of the other’s part after they have contracted otherwise. There is a particular provision in our common law relating to people who, even though they are married out of community of property, have worked together and have, by implication, created a joint estate. I think somebody quoted the “paper hanging” case, where a woman assisted her husband in his paper hanging business and on the husband’s death it was shown that she had contributed towards building up an estate. That is really a form of implied partnership. So, where there is a real contribution made by both parties and they have been married out of community of property, there is a remedy in law, which presumably lawyers should know about and should be able to advise their clients on, where this has taken place. But to create a statutory provision whereby, somehow or other, the courts can decide to give a part of the assets to a party in the case where the couple were deliberately married out of community of property, I, for one, cannot support. I think it is quite wrong.

Finally, I also want to draw the hon. the Minister’s attention to another matter in respect of which I want to refer back to the debate on clause 9. I am very pleased that he has included here the words “and any other factor which in the opinion of the court should be taken into account” Here he has correctly given the court a discretion to take all the factors into account. It is quite remarkable that that provision is not in clause 9, and I hope that in due course he will introduce it there as well, but perhaps that is anticipating the debate still to be held on clause 9.

Mr. Chairman, I want to make three points on this clause. Firstly, I want to draw the hon. the Minister’s attention to the wording of clause 7(1). This relates to agreements made between the parties themselves with regard to the payment of maintenance. Does the hon. the Minister not agree that here we have exactly the same argument in that when a divorce is conceded, one is left with the question of how much maintenance is to be paid. Whether one is, therefore, bargaining with the children, the maintenance or the assets, it comes to the same thing. The principle of an agreement between the parties is contained in clause 7 too; yet the hon. the Minister did not see fit to allow for an agreement with regard to the children. I find that incongruous.

Secondly, I want to support the amendment moved by the hon. member for Randburg, which in accord with the recommendation made by the Law Commission in their supplementary report. The wording fits in with that. There is obviously no objection to that. I think that, in any event, on remarriage the maintenance will normally fall away. To provide that it should also be for the period until the death of the party in whose favour the order is given, is, I think, also in order.

The third point I want to deal with concerns the first amendment moved by the hon. member for Houghton, which relates back to the conduct of the parties in so far as it may be relevant to the break-down of the marriage. Here, I think, we come to the gist of the entire Bill. Quite honestly, I think we are completely back to square one. We are exactly back where we were before the Law Commission had its hearings, made its findings and redrafted the law. We are exactly back where we were before because people will again have to go to court and have all their dirty washing hung on the line. Again guilt has to be proven, because no agreement was reached between the parties concerning one or two issues. I agree with the hon. member for Yeoville. There is no difficulty about whether parties want a divorce or not Difficulties arise about settling matters such as maintenance, property rights and custody. In this Bill we now want to introduce the whole question of the guilt again. The hon. the Minister will remember that the commission’s original report states the following on page 37 in dealing with the forfeiture of patrimonial benefits of a marriage—

The hon. member for Randburg referred to the judgment in the case of Lord Denning. Lord Denning asked whether the court had to go into all the whys and wherefores of the marriage, the break-down of the marriage and the conduct relevant to the marriage. He said that he did not think it would be necessary. With regard to the irretrievable break-down of the marriage and the guilt of the spouses, he said the following—

However, to go by what the commission had to say, or even by the judgment in the case the hon. member for Randburg referred to, I do not think we are making any relevant improvements in this Bill, in terms of which we shall still have to prove the whole question of break-down. I want to remind the Committee that at Second Reading it was the hon. member for Yeoville, I think, who actually raised arguments about the division of the estate, assets and maintenance. He referred to a case in Switzerland, I think, a case in which the formula applied was that the partners bought certain assets to the marriage and had contributed certain assets during the marriage and were basically entitled to take back what they had put into the marriage, having a separation of the assets more or less along those lines. I think this is the sort of formula one should look into. However, I do submit to the hon. the Minister that if we do not accept the amendment moved by the hon. member for Houghton on this first provision, we shall be achieving absolutely nothing and all the dirty linen will still be washed in public.

Mr. Chairman, I first want to refer to the speech made by the hon. member for Randburg, because everyone in the Committee agrees with the amendments he moved. I want to say that I shall accept them, for in the circumstances, these are very logical amendments which he moved.

Now I want to refer to the three amendments moved by the hon. member for Houghton. Personally I definitely agree with the hon. member that by means of this clause, we are actually introducing the element of fault again. I think the hon. member for Hillbrow also said so. There is no doubt about that.

†The hon. member will remember, however, that this is one of the matters I actually referred back to the Law Commission. When I had the opportunity of referring the matter concerning the Press Union to the Law Commission, I also took the opportunity of referring this back to them. The report of the Law Commission is available to us. In any case I think that under the words “and any other factor” one would be able to introduce the element of fault, even if “fault” is not mentioned as such. The wording of subsection (2) reads—

If we delete the word “conduct” we would still be able to bring conduct in under the words “and any other factor”.

But not so specifically.

In actual fact they are standing together, and the one seems to be redundant.

No, it is too specific.

The Law Commission felt that in cases where faults were very pronounced and maintenance was being sought that could be taken into consideration. At this stage I do not think I should disagree with the S.A. Law Commission. I think I should leave the wording as it stands here and wait for a few court cases. Perhaps we shall have more clarity after that Failing that, perhaps I can ask the Law Commission to have another look at it, although one cannot keep on sending it back. Therefore at this stage, although I am in sympathy with the hon. member, I think we should leave it as the Law Commission has advised us, see what the courts do to it and see how it works out in practice.

As far as the second amendment is concerned, namely after “order” to insert “, at the time of the divorce or any time thereafter”, I think that “at any time thereafter” is in actual fact covered by clause 8.

Is it?

Yes, and if the hon. member inserts those words under clause 7 she will find that she is in actual fact dragging in all those factors which go before it into the maintenance, whereas if the words are inserted in clause 8 the only consideration of the court will be changed circumstances, for example in what way the financial position of the person who seeks maintenance has deteriorated and in what respect the financial position of he or she who has to pay maintenance bettered itself. Those are the only two considerations that the court will take into account at that stage, whereas if I accept the hon. member’s amendment I shall unfortunately bring in all the other factors, even fault, when considering maintenance. I think it is therefore better left under clause 8.

Then, as far as the third amendment is concerned, namely “notwithstanding the provisions contained in subsections (1) and (2), a court granting a decree of divorce shall pay particular attention …”, the hon. member knows that I am in sympathy with that. However, I have one main difficulty. We are also talking about insurance policies that have accrued. That can be taken into account in any case at this stage. We are also talking about insurance policies that may accrue thereby bringing in a totally uncertain factor. We are bringing in a spes, something which may come about or which may not come about, and we are asking the court to deliberate on something which may or may not happen. This has been my difficulty all along, as the hon. member knows. Therefore I think we should rather wait until the proprietary rights of the parties have been dealt with, and the S.A. Law Commission will probably look into this sort of spes, the hope that people have of getting money, or whatever the case may be, and then see how far they should bring that into the proprietary rights of the parties. I think we should leave this particular amendment of the hon. member in abeyance although I am in total sympathy with it.

Mr. Chairman, may I withdraw my second amendment in view of the hon. the Minister’s explanation that it is already covered in terms of clause 8?

It is not.

Does the hon. member not think that it is?

No.

In that case I withdraw my withdrawal.

Mr. Chairman, I should like to raise, if I may, the very point which the hon. the Minister raised just now.

One woman?

I unfortunately have to argue about a lot of women in terms of this Bill, not only about one. The hon. the Minister said that the point which the hon. member for Houghton raised is covered under clause 8 of the Bill. If he is right, I am very worried, because I am opposed to the amendment of the hon. member for Houghton. I would therefore be very upset if it were covered in clause 8. I am going to suggest to the hon. the Minister that clause 8 only applies if there is a maintenance order. In other words, if there is no maintenance order, one cannot subsequently come along and ask for maintenance.

That is the point.

If that is what the intention was, I think the hon. member for Houghton’s amendment should be defeated. She should not be allowed to withdraw it. I am against her amendment, and I am happy that the hon. the Minister has confirmed that if there is no maintenance order, one cannot subsequently raise that issue again. That is all I wish to say.

Mr. Chairman, the hon. the Minister has not reacted to what I asked him to consider, but before he does so I want to react to what the hon. member for Yeoville said about the division of assets. He said that he did not agree with it He said the business aspect was obviously covered. However, I made it quite clear in my argument in the first place, that what I envisaged was not just the business relationship, but the actual relationship within the marriage itself because the wife can contribute quite tremendously to the success of her husband. In American business this has, of course, become more and more prevalent over the last decade or so. The wife actually contributes materially to the joint estate without actually working jointly in the business with her husband. She does entertain at home.

That is covered under the universal partnership concept.

She also helps him to maintain a home, a decent standard of living and decent surroundings to which he can invite his business guests and she brings up his children, and it can therefore be said that she definitely contributes in very many ways. I cannot agree with the hon. member that this part should be ignored. I believe that some type of division of assets should be envisaged in the circumstances that I have outlined.

Mr. Chairman, the hon. member must please forgive me for not dealing with these matters. As he quite correctly stated, I forgot to do so. The hon. member firstly dealt with the two words “or” and “and”. I agree with him that it does not really matter materially, but I feel that “and” would be better in the circumstances. I shall have a look at it to see whether it is important enough to be changed in the Other Place or not.

The hon. member for Yeoville, I think, quite rightly pointed out that under an antenuptial contract agreement one settles something on one’s wife or husband, whatever the case might be. For convenience sake, let us take the wife as an example. When the marriage is dissolved, that is the amount she gets. Nobody can change that at all, because it is part of the antenuptial contract, and quite frankly I do not think the hon. member for East London North would suggest changing that part of it.

No.

What the hon. member argued, however, was the possibility of a universal partnership. I do not think we can enforce that at this stage, however, unless it is declared as such. What can be done, though, is to have an agreement to that effect. That can be done irrespective of the ANC, the antenuptial contract, because one can still draw up a written agreement taking and bringing all those factors into account. If I understand clause 7 correctly, what we have here is a case of equity. In spite of the fact that one is married out of community of property, or whatever the case may be, one can also obtain maintenance. Maintenance can still be obtained, because a judge is entitled to grant one what he considers to be just, as maintenance, etc. One is therefore entitled to maintenance, but not, as in our law now, because of the fact that one is the innocent party, but because of the fact that it is just to grant one maintenance. This is the legal ground for granting maintenance. If one has therefore brought something into the patrimony, one can still get maintenance, but the common law cannot be changed as far as the antenuptial contract is concerned.

Mr. Chairman, I have a little difficulty and perhaps the hon. the Minister can help me with it I think it is possible to change the antenuptial contract. These contracts take two forms as the hon. the Minister knows. Firstly, it gives an outright gift and delivery is taken of the gift at the time of the marriage. Secondly, it is an undertaking that during the course of the marriage the assets mentioned in it will be handed over. It takes those two forms.

The second is, of course, not part of the antenuptial contract.

Yes, but in the order sought one asks for forfeiture of the benefits of the antenuptial contract or one asks for delivery of the benefits which have not yet been delivered. The whole issue, therefore, comes to the fore with regard to the antenuptial contract, and that again depends on who the guilty party is. We thus come back to the same argument.

Mr. Chairman, I am sorry to be at sixes and sevens, but I had thought the hon. the Minister had given a different explanation. Now that I find that the provision in clause 7 does not in fact apply as I really wanted it to apply, I should like my amendment to stand. I do not know why the hon. member for Yeoville thinks there will be no further nominal maintenance orders made. I think the hon. member said he thought there would not be many, if any, nominal maintenance orders made. I do not know why this change in the law will change the attitude of the courts. I do not even know in what percentage of divorces this token or nominal maintenance order is made. I understand that it is not unusual anyway. When circumstances change, people who are reasonable in the demands they make on each other when they get divorced, may suddenly find themselves in very different circumstances. All I am trying to do is to ensure that, instead of their having to rely on having a token maintenance order made at the time of the divorce, an order in respect of which they can always come back and ask for a variation, that should be an automatic right. That is really all I am asking for. It is nothing exceptional in terms of our law as it is practised at present.

Mr. Chairman, the problem is that in reality the amendment of the hon. member means that the right to maintenance is established on the fact that there was a marriage with the person concerned. Therefore, if one was once married to the person concerned and contracted two subsequent marriages, one still remains responsible for the maintenance of the person concerned should she become ill or be unable to support herself. Such a thing is not in conformity with our common law and we shall certainly not be able to insert it here. That is our problem.

Then do away with token maintenance.

I understood the hon. member to be referring to the maintenance order. That falls under clause 8. As far as clause 7 is concerned, a new and completely alien principle will be introduced into our law by way of this amendment. In reality this will mean that one is entitled to maintenance merely because one was married to a person. Surely this cannot be.

Is that not the case with token maintenance?

No, because initially one had the right to maintenance.

Amendments moved by Mr. W. C. Malan (Randburg) agreed to.

Amendment (1) moved by Mrs. H. Suzman negatived (Mrs. H. Suzman and Mr. A. B. Widman dissenting).

Amendments (2) and (3) moved by Mrs. H. Suzman negatived (Mrs. H. Suzman dissenting).

Clause, as amended, agreed to.

Clause 9:

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

1. (1) On page 8, in line 30, after “part” to insert “only”;
2. (2) on page 8, in line 33, to omit “substantial” and to substitute “exceptional”.

This is the clause that deals with forfeiture of patrimonial benefits of marriage. The real object of my two amendments is to try again to water down the blame element which comes into this clause. As I said when we discussed clause 7, I cannot see the point of the Law Commission’s statement in connection with elimination of the blame or fault element in the case of a divorce, while simultaneously various clauses in this Bill are framed in such a way that the fault or blame comes in again. Again we are going to have the same sort of acrimonious disputes in divorce cases as we have had in the past. That is really my only object in seeking to insert the word “only”. It is merely to water down the possibility of the court considering the fault or blame aspect when deciding on forfeiture of patrimonial benefits of marriage.

Again, in changing the word “substantial” to “exceptional”, I want to make it possible only in cases of extremely bad behaviour that the court will take the conduct of one or another of the spouses into consideration.

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

1. (1) On page 8, in line 31, after “to” to insert:
   all the material circumstances, not excepting any other facts or circumstances, including
2. (2) on page 8, in line 32, after “thereof’ to insert:
   , the contribution of assets by either of the parties at the time of and during the marriage

I should like to motivate them briefly. When we were discussing clause 7 I referred to the fact that when we deal with maintenance there is a specific provision which says that any other factor which in the opinion of the court is relevant, should be taken into account. In other words, one should take into account all the facts which relate to maintenance before an order is granted. When we come to the question of forfeiture of patrimonial benefits it seems to me, with respect, that looking at the individual items which are listed, it appears that those are not all the items.

I have had to face the hon. the Minister on other aspects, such as that of discretion. This is a case in which all the items are to be taken into account. Yet, remarkably enough, it appears that the broad item which enables all the material circumstances to be taken into account, has not been included here. I also specifically want to include items which relate to the contribution of assets of the parties at the time of and during the marriage. Let me give a simple example. Let us assume for a moment that we have to do with a couple married in community of property, and that the wife has inherited R1 million during the course of the marriage.

Are you thinking of me?

Surely, Mr. Chairman, I deliberately chose the example of the wife inheriting the fortune merely in an attempt to seek the support of the hon. member for Houghton. [Interjections.] Is it fair then that that is not taken into account? The husband has contributed nothing towards this fortune. It was in fact the intention of the testator to give it to the wife. Surely that is a factor which must be taken into account.

Let me give another example. I shall give the example of what I want to call the gold-digger’s situation. In order to make the hon. lady member of the House happy, let us take a young man who marries an old lady who has a lot of money.

Now you are really thinking of me. [Interjections.]

Surely, when that marriage is dissolved the circumstances are such that the court must take into account what the couple possessed before they were married. Allow me to give the hon. the Minister some examples of what I am trying to state.

During Second Reading I mentioned the example of the law in Switzerland. There we have a situation where the court looks at what each party has contributed towards the common estate. One looks at what they have brought in during the course of their marriage. When the marriage is then dissolved each one actually gets out what they have put in. Then, what each party has accrued during the course of their marriage, that which they have built up together, is shared out when the marriage is dissolved.

If the hon. the Minister should care to look at his own Bill, which he has had published for information—the Bill relating to the future property arrangements—he will note that there is a similar kind of approach adopted in that Bill. I believe that approach is indeed the correct one. Therefore I believe nobody in this House will want to legislate in order to assist the gold-digger in the marriage market of South Africa. I believe the hon. the Minister will, in those circumstances, support the two amendments I have moved.

Mr. Chairman, I cannot accept the amendments of the hon. member for Houghton. However, I want to tell the hon. member for Yeoville that I have a certain measure of sympathy for his argument. However, I shall have to examine it in detail. I shall take another look at the matter and if I can meet him in that regard, after further consideration, I shall do so in the Other Place.

Mr. Chairman, I just want to ask the hon. the Minister if he can clear up a little difficulty I have with clause 9(2). In this case the divorce has been granted on the grounds of mental illness or unconsciousness, but what is also stated is that no order can be made for the forfeiture of the patrimonial benefits. Is that a final decision, can it perhaps be suspended at a later stage? In other words, is the decision binding for all time or can it be varied in terms of the provisions of the previous clause?

It cannot be varied.

I wonder if that is really fair. For example, a couple may have been married for 30 or 40 years and have accumulated a tremendous amount of assets. They may be married in community of property, in which case they share, or they may be married by antenuptial contract and the husband may have the assets in his name. In such a case the wife would not be able to get any of his assets at all. I do not have an amendment to cover the situation, but I wonder whether we should not leave some room to provide for a case of hardship if one of the parties is deprived of a substantial share in the marital assets.

No, I do not think we should change that at all in this particular case.

Amendment (1) moved by Mrs. H. Suzman negatived (Mrs. H. Suzman and Mr. A. B. Widman dissenting).

Amendment (1) moved by Mr. H. H. Schwarz negatived (Messrs. J. F. Marais, H. H. Schwarz, Mrs. H. Suzman and Mr. A. B. Widman dissenting).

Amendment (2) moved by Mr. H. H. Schwarz negatived (Messrs. D. J. N. Malcomess, H. H. Schwarz, Mrs. H. Suzman and Mr. A. B. Widman dissenting).

Amendment (2) moved by Mrs. H. Suzman negatived (Mrs. H. Suzman and Mr. A. B. Widman dissenting).

Clause agreed to.

Clause 10:

Mr. Chairman, I just want to make the point that in my view this again opens the door to the whole question of fault. To have a lawsuit on the question of fault when there is a no-fault divorce action involved, merely because there are arguments about costs, seems unreasonable to my way of thinking. I shall therefore not be voting for clause 10.

Clause agreed to (Mr. H. H. Schwarz dissenting).

Clause 12:

Mr. Chairman, this is the clause which has created perhaps the most attention in the Press, particularly because it affects the Press and its reporting of what happens in divorce cases. Over the past few days we have had a lot of discussion in the House about the freedom of the Press in terms of the so-called Press Bill. In this particular instance, however, we are dealing with a completely different aspect relating to the Press and the private individual, and here I think we have a completely different ball game. The Press’ right to discuss Government maladministration in its pages is an issue which, in my view, relates to the freedom of the Press, but I do not believe that the freedom of the Press has, to any major extent, anything to do with the private individual. Should the Press be entitled, on any and all occasions, to ride rough-shod over private sensibilities? I do not believe they should be allowed to do so. I believe they should not be entitled to delve into private lives, to create hardship and suffering and to justify all this with the clarion cry of “the freedom of the Press” and “the public are entitled to know”. I do not think this should be so. There are occasions when it could be justified, particularly where people in public life are concerned. A person in public life, I am afraid, has to put up with a greater degree of Press interference in his private freedom. That is the penalty he knowingly has to pay when entering public life. Very often, however, details are published simply to pander to salacious tastes and to boost circulation.

The problems in this regard have spanned centuries. In fact, it rather amazed me to discover that Queen Victoria was once accused, by a hostile Press, of having a depraved court. There is no doubt that since that time the Press has grown enormously, literacy has increased and therefore more damage can be caused, by publication in the Press, than was envisaged in the past century.

When we turn to clause 12 we find, however, that it goes too far in attempting to stop the Press from publishing salacious details. I have consulted with a number of people on this aspect. I do not claim to have any original thoughts, but I can say that we in these benches are in favour of limiting the publication of such details. Without any shadow of a doubt that would be a good measure. In investigating this matter we discovered that in Britain there is, a similar type of provision relating to divorce. It provides that the Press may not publish anything other than the judge’s summing up of evidence and his judgment I therefore move the first amendment printed in my name on the Order Paper, as follows—

I am aware that the hon. member for Klerksdorp has a very similar amendment on the Order Paper. He wants to substitute “the judgment or order of the court” for “that a decree of divorce has or has not been granted in respect of the parties”. I must admit that I am relatively easy as to whether the hon. the Minister wants to accept my amendment or the amendment of the hon. member for Klerksdorp. I think that overall they amount to the same thing, and I will be quite happy to accept whatever the hon. the Minister feels is the best possible wording.

Some considerable time after my second amendment on clause 12 was already on the Order Paper, the hon. member for Klerksdorp placed exactly the same amendment on the Order Paper. I do not quite understand the reasoning behind that. However, I do wish to move the second amendment which is printed in my name on the Order Paper, as follows—

The reasons for this amendment are very clear. We believe that the public should be able to judge in a divorce, if there is a guilty party, who that guilty party is and what the reasons basically are, without going into salacious detail, as I have said.

At the same time it can cause damage to a so-called innocent party if no details can be published, particularly not even who the plaintiff is and who the defendant is. This could create all sorts of unsatisfactory situations. I do not believe, however, that I need motivate these amendments any further as it is very apparent that the hon. the Minister is going to accept amendments of this nature because they have been recommended by the Law Commission. However, I want to go further and move the other amendment printed in my name on the Order Paper, as follows—

1. (a) the news media be barred from attendance at any hearing in terms of this Act or for any portion of any such hearing; and
2. (b) no person shall publish any portion or the whole of his summing up of evidence and his judgment

In other words, if the judge feels that he wants the court cleared while a particular aspect is discussed, he should be entitled to do so, and secondly, if he wishes to direct that any portion of his judgment should not be published, it should be at the discretion of the judge to do this. Once again I get this particular aspect from the British law on the subject. The British do have provisions to this effect. It is perfectly possible that the judge may wish to say certain things in his judgment which he believes should in the interests of everybody concerned not be published. If my first amendment or the amendment moved by the hon. member for Klerksdorp is accepted, automatically the Press will have the right to publish that whole judgment I do not think that that necessarily would give us the right sort of answer.

Mr. Chairman, the hon. member for East London North had praise for himself. Regarding the question of the amendment I have moved, I shall reply in a moment. I think one can concede quite a number of the facts which the hon. member for East London North mentioned in his speech. I now move the amendments printed in my name on the Order Paper, as follows—

1. (1) On page 8, in lines 51 and 52, to omit “that a decree of divorce has or has not been granted in respect of the parties” and to substitute:
   the judgment or order of the court
2. (2) on page 8, in lines 56 and 57, to omit “and in particular, who the plaintiff and who the defendant is in such an action”.

The hon. member will note that these amendments are based on the supplementary report of the S.A. Law Commission. The hon. member will accept therefore that having moved the first amendment, which is based on the supplementary report, as a logical conclusion I must move the second amendment, so I do not think that the hon. member really argued brilliantly when drawing a distinction between the two separate amendments.

If the amendments I moved are accepted, clause 12(1) will read as follows—

There are also certain provisos contained in clause 12(2) relating to law reports, and so on.

The clause is the outcome of the report and recommendations of the S.A. Law Commission. In question 25 on page 2 of Annexure B of the original report, all those who gave evidence and made representations were asked very pertinently—

A large number of churches, 11 judges, three judges of appeal, social welfare organizations and so on, according to paragraph 17.3 of the main report, were overwhelmingly in favour of a total prohibition of publication of all details, except the fact that divorce proceedings between the parties concerned had been instituted or that a decree of divorce had been granted or refused.

I quote a section of paragraph 18.13 to show the conclusions the commission arrived at—

Due to representations which the Press Union made to the hon. the Minister, and as the hon. the Minister said in his reply to the Second Reading debate, the hon. the Minister referred the whole question of clause 12 back to the S.A. Law Commission. The Law Commission considered the representations of the Press Union and brought out a supplementary report From this supplementary report it appears that the Press Union were totally opposed to the provisions of clause 12 and submitted that the public had the right to be informed about all aspects of divorce proceedings, regardless of the harm the publication of distasteful information might involve for the parties. It appears further from the supplementary report that after the further representations of the Press Union were considered by the Law Commission, it found that the publication of distasteful facts in a divorce case caused unnecessary humiliation and harm to the parties and their children and accordingly should be prohibited in the public interest.

I also want to say that children who today are small and are affected by the publicity in divorce proceedings, will be adults tomorrow. It might even have an influence on their attitude and conduct towards the parents who are divorced.

I might just add that the Association of Law Societies has again expressed itself strongly in favour of a prohibition and would even, if a further opportunity presented itself, again make representations for the retention of the restrictions.

However, in their supplementary report, the S.A. Law Commission recommended that if the court’s verdict or order was published, on the one hand it would not prejudice its object. On the other hand such publication of an order would convey an objective picture of the relevant facts.

That is why I should like to say that a marriage, and what takes place between the parties, is absolutely the private, personal affair of the individual and the parties to the marriage. In fact, I am convinced that the clause with the proposed amendment, will ensure that the parties to a divorce action will be able to place all the facts frankly before the court, without the fear of dirty linen being washed in public. I appreciate this problem, but I think that the Press should co-operate in ensuring that the privacy of the individual and the privacy of the marriage should be respected and protected. In fact, we should all join forces to restore the right to privacy of the human being. I therefore believe that the hon. member for Yeoville will also agree in this respect. I want to refer to his speech during the Second Reading on 3 May, Hansard column 5640, where he said in regard to this matter—

Nobody has any quarrel with that. In fact, it is an established principle of our law that justice must be done publicly—

Mr. Chairman, this issue was, of course, the other main reason why the hon. the Minister referred the Bill back to the Law Commission. The first reason, as he told us, was the whole question of blame and the second the question of publication, which was reconsidered largely as a result of the representations that were made to him by the Newspaper Press Union. I think on the whole the hon. the Minister has come to a reasonable compromise with the Press on this particular issue. I am also not keen on all the salacious details of divorces being published after having been aired in the courts of law, but I did to some extent change my mind after having seen the reasoning put forward by the Press Union as to why, in certain cases, it was probably in the public interest that people were informed of some of the details of divorces. I believe that the compromise which has been reached, is reasonable, and I shall support the clause as it stands.

Mr. Chairman, the amendment moved by the hon. member for Klerksdorp is completely in line with the recommendations of the commission, and the wording is identical. Whereas originally there was to be no publication at all, the concession made by the commission was to publish the judgment or the order of the court. The amendment moved by the hon. member for East London North goes a little step further in the sense that he wants it to apply also to the judge’s summing up.

He also moved a second amendment, which, to my mind, virtually contradicts the first, because although he wants to have the judge’s summing up of the evidence made available for publication, he also wants to restrict that summing up by giving the court the power to bar the Press from attending a hearing, and to prohibit publication of certain portions of the summing up. I find that a little strange, because in any event, as far as the second leg is concerned, I have always understood the court to have the power to bar the Press and to prohibit publication.

I do not believe in third prizes, such as those given by the hon. member for Klerksdorp; I do not believe in second prizes, such as those given by the hon. member for East London North; but I believe in first prizes …

For the hon. member for Hillbrow?

While the hon. member for Houghton has stated that there is a compromise, I do not think we should settle for the second prize or the third prize, because I think it is wrong. I must take issue with the hon. member for East London North, because I do not believe that the Press, in reporting on these cases, are motivated by the fact that they are salacious. The facts show that they are not salacious. Out of the 10 850 divorces that took place in South Africa in 1976, only 147 cases in South Africa were reported on, plus 25 overseas cases—that is all.

Those were the salacious ones.

I think the Press have got sufficient integrity to control the reporting. [Interjections.] I find the reaction here virtually contradictory, because while these hon. members scream about the Advocate-General Bill and the rights of the Press, now all of a sudden they do not like the Press reporting on … [Interjections.] There is an argument the Press have advanced.

You have put your foot into it.

We have a free vote on this.

One can see what happens when you do not have the benefit of your party’s advice.

The Press have said—

Are you quoting directly from the report of the Press Union?

Yes, of course I am. I also quoted from it in my Second Reading speech. Where was the hon. member then?

I was not here.

They said further—

I therefore think it is very important that it should be done. I am sorry that I did not bring the latest Sunday Times with me.

The back page!

No. It was right in the middle. There was a report there of a husband, a big strong guy, who beat the dickens out of his little wife.

It was the other way round.

What protection does she have? The only protection she has, is the publicity given to the case in the Press, publicity that is adverse to him. It is no good her going to the police, because she will not receive any assistance from them at all as it is a domestic matter. These are the deterrents which are essential for the protection of the little woman.

I must read that Sunday Times.

There is one further argument that I should like to advance.

We have now reached the stage where, when this Bill comes into operation, we will basically have to do with a new concept and understanding of the divorce laws in South Africa. The hundreds and hundreds of cases which has been reported over the years, which have become commonplace in law, and which have become the guidelines and decisions the courts follow, now virtually go by the board, because we have a new concept in our law, that of irretrievable break-down. The old questions of adultery, desertion, etc. fall away. We now have to start with a new concept in our law, a new understanding. It is necessary for the courts to understand how the law is going to be interpreted and what procedures are going to follow. It is necessary for the public to know how this divorce law is going to work. If there is going to be a prohibition on the full publication of the facts of a case, so that one can only partly understand it, it will not serve as a guide. That is an added, special reason why there should be publication without any strings attached to it. The only argument I am prepared to concede in this regard is the case where publication of a case in the divorce courts can harm the interests of the children. I think it is unfair for children who are virtually innocents in a divorce case, to become the object of derision in the schools they attend or at other places with which they may be associated. I think the court has sufficient discretion in this regard.

I shall use the argument used by so many hon. members in this House, viz. that I have faith in the judge hearing the case using his discretion to protect the minor children in the case by ensuring that evidence that is harmful, will not be published. I think we should leave it on that basis. The court has the power to exercise that discretion and I think that in no circumstances should that be altered. I will oppose this clause as it stands.

Mr. Chairman, firstly, I think that we have to get it quite clear that the issue here is not the freedom of the Press, but the domestic relations between husband and wife and the airing in public of those matters which take place behind bedroom doors. With great respect to my colleague, the hon. member for Hillbrow, I must point out that, while on the one hand he quite clearly conceded that the interests of the children may require that certain facts should not be published, on the other hand, although politicians may also have children, he said he felt that the love-lives of the politicians deserve a place of honour on the back pages of some of our newspapers. With great respect, whether a man is a politician or an ordinary man in the street, the same principle should be applied. I think that one of the reasons why this law has been introduced and why my colleagues have supported the concept of doing away with “fault” divorces, is that in fact there are two sides to every divorce case. When one publishes the fact of adultery, for example, does one also consider publishing the facts which in some cases create the situation which leads to the man or woman committing adultery? Those are material things that one has to bear in mind. That is why I think the House has almost unanimously agreed that we are now in a “no-fault” divorce situation. If we are in that situation, why should one want to select aspects of fault in order to publish them before the populace as a whole? With great respect, I do not see the logic of accepting no fault on the one hand, while on the other hand accepting the fact that, seeing that because of purposes of cost, purposes of maintenance and purposes of property rights one may have to argue about fault, that aspect should receive undue publicity.

Therefore, I do not believe that the freedom of the Press is at issue when it comes to private relationships between husband and wife, bearing in mind that it is so easy to deceive. How easily one is deceived, is demonstrated by the article which the hon. member for East London North referred to. He thought it was the poor little woman who was “bashed up”, while I thought it was the big man who was “bashed up”, because that is what the article implied. [Interjections.] The fact that we interpretate things differently, demonstrates how easily we are deceived. I challenge any lawyer in this House who has been involved in any divorce case at any time to tell me that there were not two sides to the story, that listening to his client, the other person involved was not the most dastardly person who indulged in the most terrible acts, while, when he went to court and heard the other side, he found that it was in fact his client who was being painted as the most terrible person. The hon. member for Hillbrow and other hon. members have said that the only weapon that one has is to publish the facts in the Press. Our law is in a terrible state if one cannot be protected by the police or the courts against assault and one cannot receive any protection whatever except through an article in the newspapers.

Well, woe betide the woman who relies solely for protection against assault upon an article which has appeared in a newspaper. With great respect, I think that is not the way in which to approach matters.

I believe one has to publish the fact that there has been a divorce, because that is a matter of status and the public is entitled to know whether a person is or is not divorced. I believe that is a matter which is of public interest in that specific concept. However, the reasons that give rise to that divorce, where for no fault concept is championed, are no longer of any consequence. That is why I have serious doubts about whether the whole of the judgment should in fact be published in the Press. I have very serious doubts about that Here again I must say that I differ with the hon. member for East London North. I do not approve of his amendment I prefer the amendment moved by the hon. member for Klerksdorp. The concept of the separate publishing of the summing up of the court is not known in our legislation. In terms of our law we publish a judgment. That judgment contains the judge’s analysis of the evidence and the reasons for his conclusion. Therefore I think it is more correct, if one publishes a judgment, that one publishes the judgment without also publishing the judge’s summing up of evidence and his judgment. There is no difference between the two. In our law they are one and the same thing.

I should like to ask the hon. the Minister, however, whether the publication of the order alone is not adequate in the circumstances. Then there is also the question of the courts being open to the public. I believe it is our tradition to have our courts open to the public so that the public can see that justice is done. People must be able to have access to court proceedings. Seeing that courts operate properly is their protection. However, it is unfortunate—and we may not be able to stop it, because I do not think one can close the courts—that one finds the gossips and that one finds people who do want to get a bit of salacious evidence, people spending their days in court watching and listening. Unfortunately that cannot be prevented because the whole principle of the machinery of our justice is that our courts must be open and that the public must have access to court proceedings.

Finally, I should just like to draw the attention of the hon. the Minister to the fact— and he should be aware of it—that when the reports of income tax cases are published in the income tax law reports, one does not see the names of the people who are litigating. One sees the initial or even some pseudonym. One sees the principle together with the facts. In the publication of law reports it is not, I believe, necessary for the purpose of quotation in a subsequent case and for the purpose of use by practitioners, that one should know the names. What is important is that the names should be published separately from the point of view of the status which is affected by a particular hearing. However, the law reports as such are there merely for the use as precedent in future cases. I wonder whether the hon. the Minister has applied his mind to the question of whether the same principle that applies in regard to income tax cases should not apply in this particular situation. Therefore, I submit that it is not a question of the freedom of the Press. It is not a question of the right to know. I do not believe there is a right to know what goes on behind the bedroom doors. That is not something which is necessary for the protection of the public, nor is it necessary for maintaining good order in South Africa.

Mr. Chairman, I have listened to the arguments of the various hon. members. In this case the Press Union came to talk to me about the Bill. I listened to them and told them that I would arrange that they could contact the Law Commission which originally sent the Bill to us by way of a report. I did in fact make this arrangement. Under these circumstances hon. members will forgive me when I say that although I am not bound to only those amendments which the Law Commission has proposed, I am not anxious to add or delete anything which resulted from the negotiations between the Law Commission and the Press Union. Having myself sent the Press Union to the Law Commission, I should only add or delete anything in a really exceptional case. In these circumstances I am only prepared to accept those amendments proposed by the Law Commission. Those changes are embodied in the amendments moved by the hon. member for Klerksdorp.

As far as the first amendment of the hon. member for Klerksdorp is concerned, as opposed to the first amendment moved by the hon. member for East London North, I am in any case of the opinion that the amendment of the hon. member for Klerksdorp should be accepted.

Regarding the second amendment, this has precisely the same wording as the amendment of the hon. member for East London North. I am therefore really being asked to choose between the blue eyes of the hon. member for East London North and the blue eyes of the hon. member for Klerksdorp. In the nature of things I must obviously say that because the hon. member for Klerksdorp is a member of my party and sits in the Government benches, I am of course more in favour of his amendment.

Completely objective.

I want to put it this way: I have had contributions from everybody in regard to this Bill and if the hon. member for Klerksdorp insists on his second amendment, I can accept it. But if the hon. member for Klerksdorp says that he is prepared to withdraw his amendment in favour of the amendment of the hon. member for East London North, I shall accept the amendment of the hon. member for East London North.

Why do you not accept the amendments in the order of the dates they were put on the Order Paper?

Regarding the third amendment of the hon. member for East London North, although I do have a certain amount of sympathy with it, I do not want to meddle with what the Law Commission has done, because the Law Commission gave the Press Union a hearing and had a chat with them about this. The amendment of the hon. member for Klerksdorp results from this discussion, and I do not want to add anything to it.

I do not know if the hon. member for Klerksdorp wishes to withdraw his amendment.

Mr. Chairman, the hon. the Minister addressed a request to me. The hon. member for Hillbrow tells me he does not want third prize, which is what the hon. member for East London North wants. He also said he did not want a second prize like the one which, according to him, has been awarded to me; he wants the first prize. I should very much like to accommodate the hon. the Minister. I then still get the first prize and the hon. member for East London North gets the second prize, while the hon. member for Hillbrow is the loser. I think he can also be contented with that.

With the consent of the Committee I am prepared to withdraw my second amendment in favour of the second amendment of the hon. member for East London North. The two amendments are identical.

Amendment (2) moved by Mr. A. A. Venter, with leave, withdrawn.

Mr. Chairman, in view of the tremendous feeling of accord that has been engendered in the Committee, I should like to suggest that with the permission of the Committee I withdraw my first amendment in favour of the amendment of the hon. member for Klerksdorp. I hope that honours will be even as a result thereof. [Interjections.]

The matter I should like to come back to is the third amendment which I have on the Order Paper. The amendment has the effect that the publishing of the judgment could be limited by the court concerned. Obviously, in view of the fact that the hon. member for Klerksdorp’s amendment is going to be accepted in this regard, my third amendment must fall away because file Committee has now decided to take out “the judge’s summing up of evidence and his judgment”. So, with the permission of the Committee, I withdraw my third amendment. But I do not think the hon. the Minister should feel that he can only accept what the Law Commission has recommended in this regard. Perhaps the Law Commission and the Newspaper Press Union did not even consider this aspect. If the Newspaper Press Union had considered this, I am sure that they would not have brought this idea to the Law Commission’s attention anyway.

What aspect?

If the hon. member for Hillbrow had been listening earlier he would have heard that this concerns the limitation by a judge that the news media be barred from attendance at any hearing in terms of this Bill or for any portion of such hearing and, secondly, that no person shall publish any portion or the whole of his summing up and judgment. In other words …

That is the whole argument. They themselves said so.

Will the hon. member please let me put my argument to the hon. the Minister and try to listen intelligently for once? Mr. Chairman, I want to return to the point I was making before I was so rudely interrupted by the hon. member for Hillbrow.

Which is something you never do!

Which of course I never do! [Interjections.] I want to make the point that I think that the idea behind this amendment will bring about an improvement of the situation. One would then have the position where a judge is able to say things in his judgment which need to go into that judgment, and at the same time to say to the Press that they may not publish certain parts, e.g. the salacious details which the court does not want to have published. This enables the judge in the first place to put into his judgment everything which he believes should form part of his judgment without having first to think that if he puts certain aspects in his judgment the Press is going to be able to publish it. This will not be a good thing for the children or the parties concerned. I would therefore like to appeal to the hon. the Minister to reconsider this and to discuss it with his advisers, because I really do think that this suggestion has merit and if he sees fit to do so, to effect an amendment in the Other Place.

Amendments (1) and (3) moved by Mr. D. J. N. Malcomess, with leave, withdrawn.

Mr. Chairman, I shall re-consider the last argument if the hon. member for East London North and if necessary I shall move an amendment in the Other Place, but I do want to tell the hon. member that in the circumstances I feel myself bound to discuss this amendment of his first with the NPU. If I have the opportunity, I shall first discuss it with them. If, after doing so, I feel so inclined, I shall move an amendment in the Other Place, but I am not prepared to do so without prior discussion with the NPU.

Amendment (1) moved by Mr. A. A. Venter agreed to (Mr. A. B. Widman dissenting).

Amendment (2) moved by Mr. D. J. N. Malcomess agreed to (Mr. A. B. Widman dissenting).

Clause, as amended, agreed to (Mr. A. B. Widman dissenting).

Clause 13:

Mr. Chairman, I move the three amendments printed in my name on the Order Paper, as follows—

1. (1) On page 10, in line 19, after “decrees” to insert:
   , or if the decree of divorce was valid in accordance with the law of the country or territory in which such decree was granted, and the husband was at the time either habitually resident in such country or territory or was a citizen of the country concerned
2. (2) on page 10, in lines 20 to 24, to omit subsection (2);
3. (3) on page 10, in lines 25 to 30, to omit subsection (3).

I should like to motivate these amendments briefly. The concept that the State President may designate a country or territory where a decree is recognized, is one that I do not object to. But I think to limit that power to certain circumstances will create very real problems, as I shall demonstrate. Let me give an example. A man may be in a country where the court exercises jurisdiction legitimately. He can get divorced in that country and then come to South Africa where his divorce will not be recognized. He comes here as a bona fide immigrant, remarries and ends up being guilty of bigamy while in fact he is completely innocent and he has acted completely in accordance with the law of the country where he was divorced. The creation of that situation is to my mind utterly undesirable to start off with. To limit the countries and the territories which the State President may designate only to those which are specified in clauses 13(2) and 13(3), is to my mind undesirable. He can still exercise his power in terms of clause 13(1), as I have indicated, on a broad basis and recognize any territory he wishes, but to limit that power in the manner suggested in clauses 13(2) and 13(3), is to my mind undesirable.

The second point I want to make is that modem concepts were prescribed at the Convention of the Recognition of Divorces and Legal Separations of The Hague. These concepts are recognized, not only in almost the entire Western World, but also in most other parts of the world. Most Western countries have become parties to that convention. I do not know why South Africa is not a party to that convention, why we do not fit into that community in regard to these concepts. I should like the hon. the Minister to say why we have not done this. The next thing which arises is that if, in terms of the concepts which are laid down in that convention and which have been accepted by virtually all the Western countries, a decree of divorce is valid under the laws of the country or territory in which it is granted, quite clearly a divorce is recognized when the party was at that time either habitually resident in that country or territory or a citizen of that country. That is the concept which is generally accepted. I find it remarkable that we do not accept these broad concepts in South Africa. I want to give an example. The United Kingdom has become a party to that convention. In the United Kingdom the law now prescribes that in regard to divorces which are recognized—

We are still bound to archaic concepts, concepts which are out of line with general beliefs in the Western world, and I think that creates problems in South Africa, problems for immigrants in particular and will remain a problem for people who move in this modem world from one country to another. I therefore appeal to the hon. the Minister to accept these amendments. They do not create a problem in regard to any matter which exists in South Africa at the moment in regard to domicile as such, nor do they create any problem in regard to the recognition of divorces. I have left the question of jurisdiction which is dealt with in subsection (2) and which I think also needs to be changed, alone because I think that should perhaps be investigated by the S.A. Law Commission. But these matters can be dealt with without any problem on the simple basis that, firstly, the State President will have the power to recognize a divorce granted in any country which he chooses and not be limited in the manner in which it is done in terms of subsections (2) and (3) and, secondly, we accept the concept of habitual residence and citizenship where a divorce is granted, and where it is granted on those grounds that we then recognize the decree of divorce in South Africa. If we do not, we can create hardship for people who come to South Africa and who are completely innocent.

Mr. Chairman, the arguments of the hon. member for Yeoville do carry some weight, but I should like to refer the hon. member to paragraph 19.6 of the Law Commission’s report. It reads as follows—

In spite of the fact that I believe that sound reasons do exist, as argued by the hon. member this afternoon, I am not prepared to accept an amendment at this stage without first having a thorough investigation. What I will say to the hon. member, however, is that I shall see to it that an investigation on this whole aspect of the convention is held and that this clause will be looked at again at a later stage. Most probably we shall be able to amend it next year after such an investigation.

Mr. Chairman, while I am sorry that the hon. the Minister cannot accept my amendment now, I am pleased that he is going to investigate the matter. I am quite happy to be patient in that regard. May I just draw the hon. the Minister’s attention to the fact that having quoted paragraph 19.6 of the S.A. Law Commission’s report, he has drawn attention to one of the problems which many practitioners have encountered, namely that there have been no proclamations, and part of the difficulty is that there is a limitation in the discretion of the State President. I think there should be no such limitation. One can consult practitioners and they will tell one that when they try to find out whether a divorce is recognized in a particular country, when an immigrant comes to South Africa they are met with this dilemma that under the old law the State President has made no proclamations, and I think it is a very serious matter. It may be that it is not a matter of national importance in that it needs priority, but it is something which affects individuals, and therefore we should attend to it as soon as possible.

Amendments negatived (Messrs. B. R. Bamford, H. H. Schwarz, Mrs. H. Suzman and Mr. A. B. Widman dissenting).

Clause agreed to.

Clause 14:

I am just rising to ask the hon. the Minister a question. As he knows, I fully agree with the abolition of judicial separation. To my mind it is a completely outmoded institution in any case. It should have been done away with many years ago, because it allowed a dead marriage to be kept alive in every respect, except the basic intention for which the marriage exists …

Alive in form, but dead in spirit.

Exactly. I am very glad that it is being abolished at last. What I want to know, is what the position is of people who are at presently living under orders of judicial separation. Can they now come along and show that their marriage is irretrievably broken down?

They can.

That is all I wanted to know.

Clause agreed to.

Clause 15:

Mr. Chairman, I have a problem in regard to this clause, particularly when I read it with the provisions of clause 19. Earlier during the debate I indicated that to my mind it is quite undesirable that actions which are now quickly instituted, particularly those for judicial separation and for ulterior motives in many cases, should be allowed to continue. I wonder whether the hon. the Minister would not like to consider, between this and the Other Place, whether clause 15 should not be abandoned or at least be amended in such a fashion that any of those actions which are presently pending, could be converted to the type of action which is now going to be the sole one in terms of this Bill. It seems quite illogical that merely because on 30 June one manages to institute an action for judicial separation, that that should be allowed to run on whereas on 1 July quite a different situation prevails.

Another problem is that if one institutes an action for judicial separation today and the defendant keeps it going, by pleadings, until after 1 July, or even amend it after that date, he can counterclaim for a divorce on the grounds of irretrievable break-down. We are therefore really in a quite ridiculous situation. I do not wish to create embarrassment for the hon. the Minister, but if he and his advisers could look at the provisions of clause 15 between now and the Other Place, I think practitioners will find themselves greatly indebted if the matter could be remedied.

Mr. Chairman, the hon. member for Yeoville probably realizes that a case which has been brought, can always be withdrawn again and can then later reopened under the provisions of this legislation. This will be possible. All we are trying to avoid here, is that someone will not be able to allege that his case falls under the provisions of the new legislation although his pleadings still fall under the old legislation. That will not be possible. I believe one will be able to withdraw a case like that if one wishes to.

Yes, but that offers no solution.

We shall have it investigated in any case.

Mr. Chairman, it is not a solution to say that the plaintiff can withdraw, because we should also look at what the position of the defendant is in a judicial separation action. In other words, after 1 July a court will still be obliged to grant an order for a judicial separation pursuant to an action instituted prior to 1 July. That is really the problem. An interesting situation can develop. If one institutes an action for judicial separation now, the court must deal with it, but if one files one’s counterclaim after 1 July, one can claim a divorce on the grounds of irretrievable breakdown. Now the court is in the dilemma that it has to deal with a judicial separation action, because it was instituted before 1 July, while it also has to deal with a counterclaim for a divorce on the grounds of irretrievable breakdown lodged after 1 July. The court is placed in an impossible position because it will have to decide which one of the two remedies is going to be granted. That is the dilemma I would like the hon. the Minister to go into.

Clause agreed to.

Clause 16:

Mr. Chairman, I move the amendments which appear in my name on the Order Paper, as follows—

1. (1) On page 10, in line 54, to omit “the father” and to substitute “one parent”;
2. (2) on page 10, in line 62, to omit “mother” and to substitute “other parent”.

I must admit that these amendments really apply to the Matrimonial Affairs Act and will therefore require consequential amendments to the Matrimonial Affairs Act. What I am really seeking to do here is to put both parents on an equal basis. The hon. the Minister will know about the question of guardianship as far as the mother is concerned and also as far as the father is concerned. I hope he will look into this matter.

Mr. Chairman, in the absence of the hon. member for East London City who is indisposed, I should just like to move the amendment printed in his name on the Order Paper, as follows—

1. (a) by the substitution for subsection (1) of the following subsection:
   1. “(1) Any provincial or local division of the Supreme Court or any judge thereof may, on the application of either parent of a minor whose parents are divorced or are living apart, in regard to the custody or guardianship of, or access to, the minor, make any order which it may deem fit, and may in particular, if in its opinion it would be in the interests of such minor to do so, grant to either parent the sole guardianship (which shall include the power to consent to the marriage of the child) or the sole custody of the minor, and the court may order that, on the predecease of the parent to whom the sole guardianship of the minor is granted, a person other than the surviving parent shall be the guardian of the minor, either jointly with or to the exclusion of the surviving parent”;
2. (b) by the substitution for subsection (2) of the following subsection:
   1. “(2) An order under subsection (1) in regard to a minor whose parents are living apart shall, if the parents become reconciled and live together again as husband and wife, lapse with effect from the date on which the parents commence to live together again.”;

The purpose of the amendment is to bring the wording of section 5 of the Matrimonial Affairs Act of 1953 in line with clause 6(3) of this Bill in regard to the custom and guardianship of minors. Both provisions deal with the same matter, viz. the said section 5, in the case where persons are already divorced or are living apart, and clause 6, which relates to matters during the divorce proceedings. Uniformity is desirable and I too take pleasure in supporting the amendment. I understand the hon. member has discussed the matter with the hon. the Minister and I take it he will reply.

Mr. Chairman, I am prepared to accept the amendment.

Amendment moved by Mr. W. C. Malan (Randburg) agreed to.

Amendment (1) moved by Mrs. H. Suzman negatived and amendment (2) dropped (Mrs. H. Suzman dissenting).

Clause, as amended, agreed to.

Schedule:

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

This is really a consequential amendment in the light of the provisions of clause 12 and the restrictions contained therein. It also flows from the supplementary report of the S.A. Law Commission. Section 47(2)(f)(iii) and section 47(3) of the Publications Act of 1974 read as follows—and I quote them to put this matter in perspective—

1. (aa) the names, addresses and occupations of the parties and witnesses;
2. (bb) a concise statement of the allegations, defences and counter-allegations in support of which evidence has been given;
3. (cc) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
4. (dd) the judgment and the verdict of the court and any observations made by the judge in giving the judgment

Because the restrictions on the publication of divorce proceedings, as contained in clause 12, are now included in the legislation under discussion it is logical that these aforementioned provisions I have just quoted to the House, should be repealed.

Mr. Chairman, I accept the hon. member’s amendment.

Amendment agreed to.

Schedule, as amended, agreed to.

House Resumed:

Bill reported with amendments.

Third Reading

Mr. Speaker, subject to Standing Order No. 56, I move—

Mr. Speaker, we have now reached the Third Reading stage of a very interesting and important piece of legislation. For once the hon. the Minister and I were able to conduct our discussions without any note of acrimony.

I believe this is an important piece of legislation because it really affects the social mores of our country, and it also introduces an entirely new set of principles which are now going to be the basis of the divorce law in South Africa. I believe it is going to take some time before we are really going to be able to judge accurately the effects of this measure. This is largely so because there is a fair amount of discretion left to the judges of our divorce courts. As far as the grounds for divorce are concerned, it is going to take a long time, I believe, to build up a body of precedents on which lawyers and litigants will be able to rely.

I think the most important aspect of the Bill is that it introduces a really much more honest basis for the whole question of divorce in South Africa. It is common cause, I believe, among all of us that the previous legislation had one extremely negative result, which was that collusion was rife, because other than adultery, mental illness or perpetual unconsciousness the only way in which divorce could be obtained was by desertion or constructive desertion. This, I believe, in the vast majority of cases which were uncontested was the result of collusion on the part of one of the parties. An unwilling spouse, however, could refuse a divorce indefinitely although the marriage was as dead as a dodo, and had irretrievably broken down without any hope whatever of its being reestablished. Now, despite the objection of one spouse, this can no longer happen. If one spouse can come to court—whether the other spouse is willing or not—and prove that the marriage has broken down irretrievably, under certain guidelines which I would have preferred to have had omitted from the Bill, the court may grant a divorce. I only hope that the hon. the Minister’s assessment is correct. That is that if such an irretrievable break-down has been proved to the satisfaction of the court, the divorce will actually go through.

I do not think, of course, that we are being entirely honest with the introduction of the new legislation. Had we been entirely honest, I believe, we would have said that divorce by consent is in fact the only entirely honest method. After all, an irretrievable break-down can best be proved if both parties to the marriage agree that the marriage is dead and that they therefore consent to terminate their marriage. However, I do appreciate that there are all kinds of strictures. There are religious strictures. There are social strictures, and there are even customary strictures which have prevented the hon. the Minister from taking what I believe would have been the completely honest course.

During the course of the Second Reading debate and during the Committee Stage of this Bill I voiced a number of objections to certain stipulations in some of the clauses, more particularly to those which, I believe, will introduce a considerable degree of uncertainty with regard to the grounds for divorce until a body of precedents has been built up. I have also objected to the reintroduction of the fault or blame principle, which the Law Commission expressly sought to exclude, but which, for reasons best known to themselves, we nevertheless inserted in the clause which determines maintenance and the division of assets between the parties.

I also felt, as I have mentioned, that I believe this measure would have been better without guidelines. It should simply have allowed the court to take into consideration the whole case in its entirety rather than being directed through certain guidelines which, I fear, may become the only grounds for divorce.

On the whole I must say that this measure has modernized our divorce law. It abolishes the outmoded system of judicial separation and it certainly attempts to provide better safeguards for the children who are always the unwitting victims of a broken marriage. The whole legislation is directed towards a more modem approach to the subject of divorce.

We in these benches are allowing a free vote on this measure and I am happy to support the Third Reading of this Bill.

Mr. Speaker, if I understand the hon. member for Houghton correctly, she referred to two facets of the divorce laws. Firstly, she is happy that we are dealing with a modernization of our divorce laws, and secondly, she suggested by implication that the ultimate solution would be divorce by consent I do not have much fault to find with the first facet but as far as the second facet is concerned, I do not think that we on this side of the House will ever be prepared to agree to divorce by consent.

When one tries to ascertain by means of a meaningful evaluation of divorce laws what the effect of this measure will be, one can look at a few established and basic facts. I want to refer to them briefly. I think we can rightly say—and reference has been made to this in this debate—that the family is in fact the most important component of society. Because the family originates, grows and develops from the marriage, we must accept that marriage is really the source, not only of the family, but also of society and therefore of the nation as well. That being so, we must also accept that marriage is the most important social institution of a well-ordered and civilized society. Therefore, since we are dealing with measures which provide for the dissolution of this important social institution, one is very thankful on this occasion that the hon. the Minister and his department were so very circumspect in framing the proposed divorce legislation. One also feels grateful that the Law Commission did not only consult the relevant judicial sources, but also called upon the important religious and social institutions to assist in the establishment of this divorce legislation.

I think we should also look at a second basic fact, and that is that we will really be dealing here with a very, very, active Act. One feels it is regrettable, but it is an established fact that the average divorce rate in South Africa is approximately 10 700 per annum. In other words, numerous court actions will be dealt with annually by the courts, legal practitioners, etc., in terms of the provisions of this legislation. That being so, it is of course important that this legislation should obviate the necessity for the contesting parties to become involved in unnecessary litigation, resulting in unnecessary costs.

It is important that this legislation should also ensure that as far as possible, the element of insecurity of justice should be eliminated. Whereas the new divorce legislation establishes three basic grounds for divorce—the irretrievable break-down of the marriage, mental illness and continuous unconsciousness—and their definition and implementation, as contained in clauses 3, 4 and 5, as well as the other provisions and the clauses which follow, I think we have overcome the problem of insecurity of justice uncertainty to a very large extent.

We must look at a third aspect as well. We must accept that we cannot keep the marriage in force by means of legal provisions. That is not possible. On the other hand, we must not restrict the aids contained in divorce legislation which might assist in effecting a reconciliation or the restoration of the marriage. Because I think some of our church institutions might be under some misapprehension, I want to say that the hon. the Minister has rightly referred to the position marriage occupies in Christianity. He put his point of view and I think that the misunderstanding which may have prevailed among church institutions in regard to the attitude of, at any rate, this side of the House on marriage, should have been eliminated thereby.

Mr. Speaker, we have, as the hon. member for Houghton said, come to the Third Reading of a Bill which is going to have a very big effect on relatively few people. Unfortunately however, the number of people on whom it is going to have an effect is far too large. I believe we should try to do something about the fact that there is too big a percentage of divorce cases in South Africa. However, I shall return to that matter in the course of my speech.

When one looks at divorce, one must bear in mind that there are two clear implications. The one implication is a legal one and the other is a Christian one. This Bill only seeks to deal with the legal implications of divorce. In terms of the Bill, therefore, any divorce should be looked at merely as a judicial exercise and not an exercise in Christianity. People who divorce each other will have to satisfy their own consciences as far as their own Christian principles are concerned. The State should not forbid divorce simply because of its own Christian principles. Those people who want to end their marriage relationships, should be able to do so, because a marriage contract implies legal rights and obligations. When that contract has been breached, or when an insuperable problem has come up, it is right that the machinery should exist for ending the legal obligations of that contract I believe that the machinery set up in terms of this Bill, which is now in its Third Reading stage, is eminently reasonable. Obviously amendments might be necessary in time. A volume of case law will build up.

There is one aspect, relating to this, that I want to return to. I wonder whether, in South Africa, we do sufficient marriage counselling to prevent these very people from coming before the courts to get divorced. I am convinced that if there were more marriage counselling bureaux or trained marriage counsellors, the problem would not be as onerous, there could be a saving of time in our courts and the sheer tragedy in many children’s lives might be prevented. So, if I must leave this House and the hon. the Minister with one thought, let it be that very thought of marriage counselling, because prevention is certainly going to be better than ultimate divorce. I therefore appeal to the hon. the Minister to do everything he can in this regard.

Mr. Speaker, we have now come to the end of a very important debate and I should like to take this opportunity of sincerely thanking everybody who has participated in the debate for the contributions which have been made and for their high quality. This Bill is a Bill of historic importance as far as the status of marriage in this country is concerned. Where people want to terminate their marriages, they will in future make use of this legislation. We have all tried to make a contribution to the best of our ability. The S.A. Law Commission has deliberated on this matter for many years, and they have done everything humanly possible to put our divorce laws on a modem, fair and sound footing. Previously there was much scope for dishonesty. Previously things could develop in such a way that divorce was no longer in effect divorce. I want to express the hope that we shall never have to use this legislation. One would like to have that ideal situation in one’s country. But because we are fallible and make mistakes, we must be practical, and if it so happens that there has to be a divorce, I think that the effect of this legislation will be such that the matter can be dealt with on a sound basis. In the first instance we have considered the interests of the children. That is of primary importance when a marriage breaks up.

Once again I want to convey my gratitude to everybody for the very interesting way in which they have dealt with this matter.

Question agreed to.

Bill read a Third Time.