Civil Union Bill: public comment; Electoral Amendment Bill: rejected, SADC dignitaries incident; VFS contract

Meeting report

Civil Union Amendment Bill: Parliamentary Legal Adviser briefing

Ms Noluthando Mpikashe, Parliamentary Legal Adviser (PLA), said the amendment bill was contending Section 6 of the Civil Union Act that allowed a marriage officer to be excused from solemnising a civil union between same sex couples, based on conscience, religion or belief. She said that the right to be excused was guaranteed by Section 15 of the Constitution, but was subject to Section 36 of the Constitution which limited the right. The courts on occasion avoid where possible and instead prefer to restrict the scope of the right when analysing cases. The courts use three ways to restrict the scope of the right to freedom of religion, belief or conscience by testing the sincerity of the claimants’ belief. They also require the claimant to show substantial proof that the exercise of freedom was central to the tenets of the religion, and the courts would not protect practices that were specifically excluded from protection in the Constitution.

In this case, the right of not to being discriminated on grounds of gender, sex or sexual orientation was protected in Section 9 of the Constitution. She had established from previous court judgments that a distinction must be made between holding a belief and the public expression of the belief. Also, based on the judgment in the case of the Minister of Home Affairs versus Fourie, the courts had ruled that it was unconstitutional for the state to provide benefits of marriage to the opposite sex, yet deny same-sex couples on the grounds of sexual orientation. She invited Members to note that Court held that ‘the principle of reasonable accommodation’ could be applied by the State to ensure that officials that had sincere objections to solemnising same-sex marriages were not obliged to do so based on conscience. Hence Parliament could replace the legislation based on the Constitution.

She provided suitable arguments from judgments in the Constitutional court that supported the principle of reasonable accommodation. Hence, the approach by the Courts to see if reasonable accommodation was necessary, depended on competing rights and interests. If the decision affected vulnerable groups and political minorities, then the Courts recommended the use of reasonable accommodation. In this case, which involved the right in Section 6, the removal would favour the minority group. The Committee would need to determine if it was fair to grant exemption to certain groups while withholding it to others. The question to answer was if it was fair to give marriage officers Section 15 rights and deny same-sex couples Section 9 and 10 rights. It was unfair -- the Constitutional Court would see it as unfair and rule in the favour of same-sex couples based on the Constitution. The marriage officials employed at the DHA may object to solemnise the marriage of same-sex couples only based on Section 6 of the Civil Union Act, but not that of an individual who was divorced.

If the decision to use Section 6 was not guarded by the Bible or Koran, then it could be termed as discrimination based on homophobia and this took away the gains of the Fourie judgment. Marriage officials act as representatives of the State, so religious belief or convictions should not provide excuses for discrimination against same-sex couples. The prevalence of homophobia would mean that marriage officials employed by the State would use rights to object to same-sex marriages and this would result in theoretical same-sex marriages, especially in the rural areas. The Constitutional Court had pronounced that discrimination against same-sex couple by marriage officials employed by the State had no place in a democratic society, based on Sections 195, 197 and 197:3 of the Constitution.

She said engagements with the DHA showed that some marriage officials employed by the State had already received permission not to solemnise same-sex marriages, and this permission could not be withdrawn. She informed the Committee that the DHA had provided some alternatives to ensure that there would be marriage officers in the DHA who would conduct civil unions for same-sex couples.

The Chairperson appreciated the PLA for the response on the Civil Union Amendment Bill. He noted that it was clear that the State could not discriminate against the union of same-sex couples. The question was how to address the administrative operations, because the permission received could not be taken away. He noted from the brief that certain marriage officials might have been exempted by the DHA, but there was no basis for this, as the right not to solemnise same-sex marriages by these marriage officials could be homophobic, based on the PLA’s response, although it had not being proven. The private Member’s Civil Union Amendment Bill proposed the removal of Section 6 that empowered marriage officers to refuse solemnising the civil union of same-sex couples.

He invited the DHA to comment on the alternatives provided for same-sex couples to enter into a civil union at DHA offices.

Mr Deon Erasmus, Chief Director: Legal Services, DHA confirmed the engagements with the PLA. He said the ‘savings provision’ proposed was that any marriage officer granted exemption from Section 6 of the Principal Act immediately before the Act took effect, would retain that permission. However, any official employed as a marriage officer who had not received permission initially would have to conduct civil unions for same-sex couples.

Mr Paseka Mokhethea , Head: Communication Services, DHA, said that out of the 612 DHA offices, 111 offices had marriage officers who were willing to solemnise same-sex marriages under the Civil Union Act. There were 692 marriage officers, but 309 officials were able to solemnise same-sex marriages and 383 were exempted. Same-sex couples could approach any DHA office and arrangements would be made to assist with the civil union of their choice. The plan was to assign marriage officers to conduct civil unions by appointment, and arrangements would be made where there was no marriage officer in a particular DHA office. This would involve giving the same-sex couple appointments and transporting them to a DHA office that solemnised same-sex marriages.

Discussion

Mr M Hoosen (DA) commented that Section 6 of the Principal Act was unconstitutional. The challenge was in the day to day operations of the DHA, as about half of DHA marriage officials did not agree and had requested permission already. If Section 6 of the Principal Act was removed, then the permission ceased to exist. The Committee needed to review if there was a provision in law that allowed the permission to exist. He asked the DHA to state how it hoped to handle the situation, as half of the marriage officials had received permission not to solemnise the civil union of same-sex couples.

Ms S Nkomo (IFP) asked the DHA to clarify if it would be able to employ more marriage officials that would agree to solemnise same-sex marriages, and to ensure it included this in the conditions of service of newly employed marriage officers. She expressed concern that the offices to which same-sex couples were referred could be far away.

Ms B Dambuza (ANC) said the Committee needed to balance what would occur if Section 6 was amended because it would still be allowing those who did not agree to retain their view, which was against the Constitutional court judgment. She was of the opinion that the Committee be restricted to the repeal of Section 6, because it was in line with the Constitutional court judgment.

Mr M Waters (DA) noted from the brief that out of the 612 DHA marriage officers in the country, only 111 agreed to solemnise civil unions for same-sex couples. It was ridiculous for the DHA to make arrangements to move same-sex couples who had made appointments for a civil union at a DHA office that did not approve a same-sex civil union. He said that everyone had a right to their beliefs. Also, everyone one had a right to be homophobic, but they did not have a right to practice it, especially if they were marriage officers employed by the State, as stated in the Constitution. He did not agree with the DHAs’ proposal of transporting same-sex couples to a DHA office that supported the solemnisation of such civil unions. He asked it to clarify a time line to phase out DHA marriage officers who continued to refuse to solemnise same-sex civil unions.

The Chairperson said the Marriage and the Civil Union Act had been enacted to set a balance to accommodate the rights of heterosexual and same-sex couples. It was no longer a Private Members Bill -- it was now a Committee Bill. He invited Ms D Carter (COPE) to make her contribution so that the Committee could consolidate and move forward.

Ms Carter said it was recommended that in such a situation a phasing in period should be included, but it was unacceptable that the DHA had not included a phasing in period for marriage officers to solemnise same-sex marriages. It encouraged continual discrimination, and this was why an amendment of Section 6 was sought. Initially the denial of same-sex unions was thought to be rural, but she reminded the Committee that there was proof that it occurred in Durban, Pietermaritzburg and Port Elizabeth, which were urban centres. The Minister of Home Affairs had said initially that there were 1 140 marriage officers, and a third solemnised same-sex unions. However, the number had been reduced to 692, and only 309 officials actually solemnise same-sex unions. She questioned what had happened to the difference between 1 140 and 692.

It would be better to ensure that every DHA office actually had marriage offices that solemnised same-sex unions for same-sex couples based on the law of equality in Section 9(1) of the Constitution. The Constitution in Section 9(3) was very clear that the State may not unfairly discriminate directly or indirectly against anyone on sexual orientation grounds. As much as Parliament did not want any officials to lose their jobs, there must be a phasing in period of not more than 12-18 months after which all marriage officials must comply and solemnise civil unions for same-sex couples. It was unfair for same-sex couples to travel out of their stations to get married.

The Chairperson noted that the Constitutional court order was clear, and it was clear from the Constitution, that the State could not discriminate against any party on the basis of sexual orientation. Section 6 allowed marriage officers that worked at the DHA to write to the Minister for exemption. The DHA had proposed an arrangement that allowed everyone who sought the service of solemnising a civil union to get it, despite sexual orientation. He resolved that the DHA and the PLA must jointly prepare an amendment for inclusion in the Civil Union Bill on what the Committee and Ms D Carter had proposed, within one week.  The DHA must also look at regulations that would ensure that no one who seeks the service of solemnising a civil union would be turned back on the basis of sexual orientation. The DHA should also review the phase-in period, because it must be enforced once the Civil Union Amendment Bill because a law.

Ms D Raphuti (ANC) said everyone was equal before the law. If citizens that married under the Marriage Act received appointments, then it must be applied for all.

The Chairperson said all citizens must be satisfied ultimately, so the Committee would still engage in more engagements on the ‘A Bill” after it had been prepared.

Private Member’s Electoral Amendment Bill [B24-2018]

The Chairperson recalled that the Committee had forwarded some names for Independent Electoral Commission (IEC) commissioners’ positions to the President, and the President had endorsed the names. He invited the IEC commissioners to comment on the new appointments.

Mr Glen Mashinini, Chairperson: IEC, said the tenure of two of the IEC commissioners had come to an end and they had been replaced by new commissioners. He appreciated the work done by the commissioners who had ended there tenure, and congratulated the new commissioners. He invited Ms Janet Love, Vice-Chairperson: IEC, to brief the Committee on the responses to the Committee’s questions.

The Chairperson interjected, and said a programme had been proposed to the Speaker to bid the outgoing commissioners farewell and to welcome the new commissioners. The programme would be communicated to the IEC after it had been approved by the Speaker. He congratulated the incoming commissioners and said the Committee would appreciate the out-going commissioners who had served the country.

IEC Responses on the Electoral Amendment Bill [B24-2018]

Ms Love thanked the Committee for its good wishes and said the IEC had clarified the concerns expressed in the Private Members Bill. The logistics for the provision of ballots for South Africans abroad was huge, and the IEC might not be able to provide ballots outside the country. It was discussing with the Department of International Relations and Cooperation (DIRCO) about using missions and embassies as voting centres, and DIRCO had information on the particular locations that could be used. The South African identity documents (IDs) would be augmented with other forms of documents. Time zones would be factored in on the voting, based on logistics.

Discussion

The Chairperson asked for clarity on the use of South African IDs and passports to vote abroad.

Mr Sy Mamabolo, Chief Electoral Officer: IEC, said the view was that the South African ID and passport would be used concurrently to vote abroad.

Mr D Gumede (ANC) said only people who had passports could vote, because passports did expire and had to be renewed. A citizen should not invest in the future of another country and be allowed to vote. South Africans abroad should not vote nationally or provincially if they did not contribute to South Africa. South Africa’s resources for voting should not be extended to Canada, the USA and the UK alone without extending it to other countries. The resources were scarce and should not be stretched in such a manner.

The Chairperson said the Committee had not yet decided on the motion of desirability.

Mr Hoosen said citizens living abroad had to wait for up to six months to collect passports through no fault of their own, so some citizens living abroad would not be able to vote because of the DHA’s practical problems. The IEC needed to answer this question before the motion of desirability was put forward. The argument put forward by IEC that DIRCO made the call on the decision to use embassies and missions as voting centres was faulty, because if the IEC did not use schools then voting would be a problem. It would be discrimination if embassies and missions were not adopted as voting centres for citizens living abroad. If the IEC was not adopting embassies and missions as voting centres for citizens living abroad, it would not be fulfilling its constitutional rights. He asked the IEC to clarify if time zones would be considered for citizens living abroad.

The Chairperson said Members should note that the IEC operates through the legislation that Parliament enacts. It therefore operates independently, and its operations are not controlled by Parliament.

He said the Committee had two options -- either it accepted the amendment and builds it into law, or it rejects the amendment and the IEC would not have to implement the amendment. In the last engagement, four key areas of amendment were proposed by Mr Walters and after the engagement, the Committee had asked the IEC to examine what was practical. A submission had been made by the IEC, but the Committee needed to consider and decide. The IEC was not to be blamed for anything and the Electoral Laws Amendment Bill was still going through public comments. The Committee needed to accommodate the law. Presently the law states that South African ID and passport were both needed by citizens abroad before they could vote.

Ms Dambuza said since resources were presently low, they should be used for economic benefits rather that voting logistics.

Mr Waters said the Constitution provided for citizens abroad to vote, but it did not restrict these citizens the right to vote based on the number of years spent abroad. If the Bill was accepted, it would affect all South Africans living around the whole world. The IEC would be wanting if it did not allow a citizen who applied to vote nationally or provincially to do so. Protecting the integrity of provincial votes by not allowing citizens abroad to vote was faulty. The IEC should determine the voting centres, not DIRCO, and the IEC should not restrict tens of thousands of voters who lived abroad the right to vote. If operational details between DIRCO and the IEC were still being fixed, this was fair enough, but presently the Committee had not received any feedback from DIRCO. He commented that every single amendment proposed in the Bill had been brushed off, and described it as a ‘shame on the IEC’. He asked the IEC to explain what it would be doing to ensure that citizens abroad voted with only South African IDs, since the DHA had practical issues with passport issuance.

The Chairperson said it was unfair to blame the IEC or involve the IEC in engagements on the Electoral Laws Amendment Bill at the present stage. He said the Committee had given an assignment to the IEC to determine legislation, and cautioned Mr Waters on his arguments. The IEC should not be blamed, as it only implemented laws enacted by Parliament, and the Committee needed to deal with the submissions of IEC.

Mr Waters said he was of the opinion that the Committee was responding to the submissions.

The Chairperson said he was referring to Mr Waters’ use of the language, ‘shame on the IEC,’ which was unacceptable as the IEC did not enact the law.

Mr Waters said he welcomed the decision of the IEC to use South African ID as a requirement for citizens to vote abroad.

The Chairperson said it the choice of laws was not that of the IEC, but that of Parliament. A lot of the questions asked should be put forward and addressed at the party liaison committees.

Mr Waters expressed concern that the votes in Canada had not being counted because they had not arrived in time. Also, South Africans who worked abroad might not be able to vote on work days but only during weekends. The Committee needed to consider the uncounted votes from Canada and the citizens who could not vote on working days.

Ms Nkomo observed that emotions were high because Members needed to differentiate between the role of the Committee and that of the IEC. She suggested that apologies be rendered and an approach to calming down the situation be followed. The IEC was under the DHA, so a lot of the questions posed should be answered by DHA. She said the party liaison committee should be a forum for Members to be informed of matters so that they could be addressed. Although the country was challenged with resources, the issues could be addressed in phases and the Committee needed to confirm that certain matters had been addressed after some time.

The Chairperson said the DHA did not have any role in the operations of the IEC.

Mr Thulani Mavuso, Acting Director General: DHA, said there were South Africans living abroad who had lost their citizenship because they had taken up citizenship of other countries, so they needed to confirm if they were still on the voters’ register. That was why citizens abroad needed to have a South African ID and passport.

The Chairperson appreciated the DHA for giving clarity on why citizens abroad needed to have a South African ID and passport in order to vote.

Mr Mashinini said after elections had been concluded, the IEC consulted with interested parties. It should not be dragged into party politics. Its stand was clear -- Parliament enacts the laws and the IEC complies with the laws. His team was working on the matters raised and would give the Committee feedback.

Ms Love said Section 33 and (4) (5) states that the only place that voting can take place abroad is a diplomatic mission, embassy or high commission abroad, so voting could not occur at a school abroad. Sometimes the IEC uses tents if schools are not available, but this can occur only within the country. The IEC was presently negotiating with DIRCO, but the decision would not be made by the IEC. The votes in Canada had not been counted because there had been no aircraft to ferry the ballots to South Africa in time, and this had been outside the IEC’s purview. In the same way, a person who was out of a province might not be able to vote in the provincial election. The practicality of voting during weekends should be considered because this would mean extending security for a longer time.

The Chairperson said the suggestion by Ms Nkomo for apologies and calming people down every time emotions rose was not right The Committee had engaged the IEC on the practicalities of the amendments and most of the amendments were more technical than earlier anticipated, and there were no guarantees. The Committee must decide whether the motion was desirable or non-desirable. He invited Members to consider both motions.

Motion of Desirability

The motion for desirability on the Electoral Amendment Bill [B24-2018] was moved by Mr Hoosen and seconded by Mr A Figlan (DA), while the motion for non-desirability was moved by Ms Raphuti and seconded by Mr Gumede. The Chairperson decided to put both motions to a vote and more Members were in favour of the motion for non-desirability. Hence the motion for desirability was rejected and the motion for non-desirability was accepted by the Committee. He acknowledged that Mr Waters had assisted the Committee by getting it more informed.

Mr Waters thanked the Committee for the opportunity.

The Chairperson said the Committee would address the issue of a public hearing on the Electoral Amendment Bill [B24-2018] at a later date. He invited DHA to address the Committee on the tender for the appointment of a business partner for global visa and permit operations in South Africa and abroad.

Mr Thulani Mavuso said colleagues from the Airports Company of South Africa (ACSA) were available, and suggested the Committee should first take the brief on complaints received from the Southern African Development Community (SADC) parliamentary forum’s acting Secretary General.

The Chairperson said the Committee had already taken a decision on the tender for the appointment of a business partner for global visa and permit operations in South Africa and abroad. He asked if Members agreed to engage on the complaints received from the SADC Parliamentary forum acting Secretary General first.

Members agreed.

SADC Parliamentary forum complaints: Responses by DHA

Mr Mavuso said the complaints were against two officers who were on duty at OR Tambo International Airport on 7 October 2018 at the time of the incident. He gave an executive summary of events that occurred, which showed that both officials had gone on break during the time of the event as it was an off-peak period. ACSA had a video recording of the events, but there was no audio. He outlined the findings and observations based on the testimony given by the officials involved and the movement record. He said the booth reserved for diplomats was empty at the time Dr Jesse Kabwila, a member of SADC, had arrived. He concluded that Dr Kabwila felt she had been treated unfairly because the officials at other booths had passed crew members, while she had not been assisted. The video recording would be played immediately it was connected to the computer system.

Discussion

The Chairperson said the complaint had come up because the Speaker had written to the Committee to investigate the insult to the SADC member.

Mr Mavuso said Members should note that based on screen shots, there had been no physical interaction.

Ms Dambuza said the challenge was that in the first instance, the official on the diplomatic booth had gone for lunch. ACSA should have given a notice to encourage diplomats to go to another booth.

The Chairperson asked the DHA if diplomats had any arrangement for special treatments.

Mr Mavuso said no special treatment was accorded to diplomats except that a separate booth was reserved for them. However, Ministers went through a ‘protocol lounge’.

The Chairperson asked the Mr Mavuso to confirm that diplomats were expected to queue.

Mr Mavuso said the diplomats were expected to queue.

Mr Hoosen said his view, based on the investigation of the DHA, was that the SADC member had to relax as even ordinary South Africans were not prioritised.

The Chairperson said he had initially asked the DHA if diplomats enjoyed any special treatment and the DHA had said no. As an MP, when he travelled outside the country he had to queue. The complaint had been escalated, as it had come from the SADC Secretary. He asked if the DHA had any recommendations to have a special arrangement for diplomats. If this was not available, then SADC members needed to be aware of the requirements so that they would not expect any special treatment.

Mr Mavuso informed the Committee that the video clip was ready.

The Chairperson noticed during the video clip that after Dr Kabwila had been left unattended for some time, she took the initiative to move to another booth, but the ACSA official had not attended to her. He asked why the ACSA official had not attended to her.

Mr Mavuso said Dr Kabwila was not attended to because of an incident that had happened earlier.

The Chairperson asked him to confirm that because the earlier incident, the ACSA official had refused to process Dr Kabwila.

Mr Mavuso said ACSA had not processed her because she had threatened to report the official for an earlier interaction.

Ms Dambuza noted that the official had turned Dr Kabwila away and attended to and processed another passenger.

The Chairperson said the behaviour of the ACSA official was unacceptable.

Mr Mavuso said he regretted the incident, but the ACSA official had said he had turned her away because he did not deal with diplomats.

The Chairperson said the behaviour of the ACSA official was still unfair.

Ms Raphuti said it was very unfortunate that the incident had happened, because the official did not have emotional intelligence. The incident was unacceptable and had caused embarrassment for Dr Kabwila and the whole of South Africa. The official needed to be trained on customer care.

Ms Nkomo said that Dr Kabwila had been humiliated when she was supposed to be treated with dignity. Not being treated in a special way was unacceptable, because she was a SADC member. Also, the diplomatic processing booth being empty was unacceptable. Dr Kabwila needs to receive an apology, as she was an MP.

Mr M Kekana (ANC) said he supported the views of Ms Nkomo and Ms Raphuti, and added that ACSA had failed on governance. He proposed that the ACSA official involved be disciplined.

The Chairperson said the Committee had made its own observation that the service had not been provided, and noted that the acting DG regretted what had happened. The Committee would communicate properly to the Speaker after Members had reviewed its observations and recommendations. Mr Mavuso could not defend the situation, as he had only investigated the testimony of the ACSA officials and had not investigated the video clip recordings. The DHA needed to see how diplomats should be treated, based on a special arrangement.

Appointment of Visa Facilitation Services (VFS) for global visa and permit operations

The Chairperson referred to the appointment Visa Facilitation Services (VFS) for global visa and permit operations in South Africa and abroad, and said the Committee had proposed that VFS operate on a month by month basis until it had completed its investigations on corruption allegations. The Committee was not satisfied that VFS should be given a contract without going through a public tender. He asked the DHA to brief the Committee on the R750 million litigation case.

Mr Mavuso said the R750 million litigation case against the DHA was a 2009 matter. The company had charged the DHA in dollars, but the DHA discovered that the band width was not assigned from outside South Africa, but within the country. The bill had been R40 million at the time, but the firm had being liquidated. The DHA had been recently subpoenaed and had to be prepared for the hearing.

Ms Raphuti said the bill of R40 million was in contention between DHA and the firm.

The Chairperson said the Committee would engage deeply on the litigation at its next meeting.

The meeting was adjourned.