The Committee met to consider Ms D Carter’s (COPE) Private Member’s Bill, the Civil Union Amendment Bill [B11-2018]. Parliament’s Legal Advisors and the legal team from the Department of Home Affairs (DHA) advised the Committee on the possible inclusion of a savings provision for state-employed marriage officers granted exemption from solemnising same sex marriages after application was made to and granted by the Minister of Home Affairs under section 6 of the Principal Act (Civil Union Bill, 2006). The matter concerned retrospective application of the law. It was said the right provided to these state marriage officers was in itself granted by an Act of Parliament.
The Committee was not in agreement with the proposed savings provision as the intention of the Amendment Bill currently under consideration is to repeal section 6 of the Principal Act – retaining the rights granted would maintain the status quo of discrimination. The question was raised of a marriage officer employed by the state that was granted the right of exemption and would be in the employ of the state for the next 30 years and whether this meant the officer would be allowed to discriminate against same sex couples for the next 30 years. The Committee raised the fact that prior to 1996, many civil servants discriminated against people of colour - if legislation did not repeal those rights granted to them, there would still be this discrimination against race.
Members did not understand how the rights granted under a repealed section of law could still stand. Supremacy of the Constitution was emphasised – the Constitution itself is extremely clear on services being provided impartially, fairly, equitably and without bias. A suggestion was made around a phasing in period for those granted the right of exemption.
The Committee was of the opinion that the exemption of state marriage officers to elect not to solemnise same sex marriage be repealed completely – despite religion or culture, those of the employ of the state are there to carry out a service without discrimination. The team must come back and convince the Committee otherwise in terms of litigation or infringement on the rights of employees of the state.
A Member raised another matter for the Committee to consider which was amendment of section 8 (1) of the Principal Act to accommodate the South African reality of having more than one spouse to prevent the discrimination of second or third spouses.
It was said more consideration should be given to balancing the rights of civil servants against the rights of individuals to access government services without discrimination. The Committee asked that an opinion be sought on this and the likelihood of successful litigation should the savings provision not be included in the Amendment Bill. The legal advisors were instructed to look at further similar examples regarding retrospective application and other legislation that gives government officials the right to use their culture or religion to discriminate against providing a service. The Committee would then look at this next week. It was emphasised that there was still time and the Bill should not be rushed.
The Committee then moved onto clause by clause adoption of the Electoral Laws Amendment Bill [B33-2018]. The Independent Electoral Commission (IEC) wanted to propose the inclusion of an additional amendment but there were concerns about having to subject the amendment to mandatory public consultation – the amendment sought to harmonise the local government election. The IEC said the amendment could be dropped for now to prevent the Bill being delayed any further given the impending provincial and national election next year. The Committee indicated the amendment could be included at a later stage before the next local government election.
Two amendments were made to the Bill – clause 5: on page 3, in line 37, after “‘IEC”, to insert “for the purposes of elections” and clause 20: on page 7, in line 40, to omit “1(a)” and to substitute “(1A)”.
The Electoral Laws Amendment Bill [B33-2018] was adopted with these amendments.
The Chairperson noted the Committee would today deal with the two pieces of legislation before it. On the Civil Union Amendment Bill, Members would go through clause by clause deliberation of the Bill. At the last meeting on the Bill, the Committee tasked both Parliament’s Legal Services and the Department to work on the A Bill which was made available to Members yesterday. It was assumed Members went through the Bill – today the Legal Advisor would take the Committee through what was prepared to enable the clause by clause deliberation before moving for adoption.
The Chairperson put it on record that the decision the Committee took on the Civil Union Amendment Bill was to invite written submissions on the Bill – this process and submissions was adequately captured by the Committee’s Content Advisor through the report tabled in the last meeting. Legal Services was instructed to look at key matters coming out of the submissions. The Committee would proceed on this basis and with the previous engagement it had on the Bill to proceed now to the A Bill, clause by clause deliberation and then adoption.
On the Electoral Laws Amendment Bill, the Independent Electoral Commission (IEC) prepared a presentation on the Bill and the public was also invited to comment on the Bill. The Committee has been informed no submissions were received from the public because the matter was widely canvassed within political parties. Looking at time factors, the Committee brought the Bill forward to finalise it before Parliament rose for the year – time was also a factor considering the National Council of Provinces (NCOP) would also need to process the Bill. Today the Committee would consider the Bill clause by clause. The Bill was able to be brought forward because of the absence of public comment.
The Chairperson said he engaged with the Director-General (DG) on outstanding matters such as VFS and litigation. The Committee already began looking at litigation involving the Department but the agreement was for the Committee to receive a further presentation from the Department on these cases, without going into too much detail. The Committee would create a slot for this at the ending of today’s meeting. The Committee would however maintain interaction with the Department on such cases. The Committee has taken a resolution on the VFS matter – a recommendation is made in the Committee’s Budgetary Review and Recommendation Report and other concerns on the matter are raised in this Report. The Committee would not accept extension of the contract if it did not follow the Public Finance Management Act (PFMA) to the letter. In some quarters of the Department he knew it was seen as the Committee involving itself in matters of procurement – this is not the case. The emphasis was that the Committee would hold the Department accountable if it did not uphold the PFMA.
The Committee would deal with its Legacy Report and all outstanding minutes and Reports next week. Members would be sent these items to go through them beforehand.
Adv Deon Erasmus, DHA Chief Director: Legal Services, informed the Chairperson that in the Department’s invitation to the Committee today, the agenda only contained the items of the two Bills. The presentation on the litigation was therefore not with the Department today. He requested this be postponed to next week so that the Department was not found wanting today.
The Chairperson said this showed there was no communication between the team and the DG – the Chairperson engaged the DG at length and he insisted the matter of litigation could be looked at today. This was not fair to the Committee.
Adv Erasmus apologised.
The Chairperson said it was fine as it was the DG who was meant to apologise.
The Committee Secretary noted the apology of Ms N Shabalala (ANC).
The Chairperson noted the police were present to engage with Members on a matter requiring the serious attention of the Committee. This portion of the meeting would have to be closed – he apologised for this stating that if he knew this was the case, he would have dispensed of the matter first.
At this point of the meeting, only Members were permitted to remain in the venue.
When everybody returned, Mr D Gumede (ANC) noted the discussion was an important one to have amongst all the political parties and he thanked everyone for cooperating in leaving the venue.
Civil Union Amendment Bill [B11-2018]
Adv Noluthando Mpikashe, Parliamentary Legal Advisor, noted that Members were required to read the A List (proposed changes) together with the Bill as introduced.
There would be a consequential amendment to clause one in line 4, after it said “...(Act No. 17 of 2006)” for the inclusion of “herein after referred to as the Principal Act”. This is a drafting convention.
The proposal is to include a saving provision to deal with the exemption of officials as contained in section 6 of the Principal Act. The saving provision would read as follows: any provision granted by the Minister in terms of section 6 of the Principal Act immediately before this Act remains in force.
This goes back to discussion the Committee had last week around the drafting of a proposed amendment. The amendment means civil officials who are currently exempted in the Principal Act would remain exempted. Where the Constitutional Court usually makes orders on the unconstitutionality of legislation, if it would not benefit the complainants or applicants in a case as the decision is not applied retrospectively. These officials were exempt in terms of the Civil Union Act. The advice is that Parliament does not take this right away retrospectively. The Department has plans in place on how to cater for the concerns of other Home Affairs officers who are not willing to marry same sex couples.
Mr H Hoosen (DA) noted that when the Committee last met and discussed this matter, it was said there was some discrimination on the part of Home Affairs officials who refused to solemnise civil unions. To retain the exemption that some officials had was effectively saying some officials had the right to discriminate while others will not – he was not sure he would be comfortable with this inconsistency which might be unconstitutional.
The Chairperson wanted to hear more about the non-retrospective application. Effectively the challenge of discrimination would still remain as if there was no law repealing this among marriage officers. This did not address the matter the legislation was seeking to change.
Adv Erasmus reminded the Committee that section 6 of the Civil Union Act still existed and was not repealed as yet. To an extent, the matter concerned the balancing of rights. On an administrative level, it must be ensured anyone who wanted to carry out a civil union, or same sex marriage, must be accommodated. If the right, for which applicants applied to the Minister and was granted the exception, was taken away retrospectively, those officials might complain that the right afforded under section 6 of the Act currently operational was now being taken away. A savings provision is a legitimate legislative instrument to say everything amended prior to the Amendment Bill stays in place but there would be a change going forward. This would cure the challenge the Amendment Bill seeks to address. This would be one of the criteria placed in the advertisement for marriage officers to make it clear what is expected of such officer.
The Chairperson noted that it was said 70% of marriage officers discriminate against same sex marriages – the saving provision would maintain this. What would happen if the state did not have money to employ new marriage officers to whom the exemption does not apply?
Ms B Dambuza (ANC) emphasised the role of the Department is to implement legislation passed by Parliament – amendments made to legislation superseded what existed in law before. She thought the exercise of amending the Act would be futile if the matter was not completely tackled. If Parliament was struggling then the Committee should look at getting external legal advice. The Committee has discussed the matter extensively – she was surprised that it was now still being raised.
The Chairperson encouraged Members to debate the matter.
Mr Hoosen struggled to understand how the repeal of section 6 could be proposed, i.e. it would no longer exist, but its provisions would still remain. He was interested in the constitutional opinion on balancing the right of civil servants, and granting them the authority to discriminate against individuals, against the right of individuals to access government services without any discrimination. He strongly advised the Committee obtain an opinion on this basis. He could not understand how constitutionally, there could be discrimination and non-discrimination at the same time.
The Chairperson made it clear the intention was to amend section 6 so that the state could not discriminate. To not apply the amendment Bill retrospectively means government officials would continue to be allowed to discriminate until the capacity was built up of new marriage officers who are no longer employed under the Principal Act.
The Department explained that whenever there was a previous law which had given a right but then came along a new law which took away that right, it would always be stated that the new law would not apply retrospectively. This was the function of the savings provision. He used the example of permanent residence – if a new law came into effect which no longer granted permanent residence, for example, the savings provision would protect the status of those granted residency under the old law. A legal opinion can be sought on the matter. Earlier this year, training was conducted in the Department on civil unions in order to get the mindset of officials correct in all provinces. A circular was also submitted. Once the training was conducted the officials would write a test to ascertain their competence. For example in KZN, 25 officials were trained and eight were not yet competent and in Gauteng, 30 officials were trained and six were not competent. While new capacity was not being created, the Department was working on the matter.
The Chairperson urged the Committee to deal with the principle at hand which is that the state may not discriminate against the marriage of anyone – in this regard the Constitution is supreme. He was not sure what kind of argument the marriage officer would use to refuse to solemnise a same sex marriage. It might have been a mistake to grant the section 6 from the very beginning. Discrimination of same sex marriage and permanent residency, as used in the example above, are two different matters – same sex civil unions are a fundamental right.
Adv Mpikashe said section 6 of the Civil Union Act is unconstitutional. There were submissions that repeal of section 6 would take away the right of some officers who thought that same sex marriages should not be solemnised due to religious purposes – to deny this is however unconstitutional. She however reminded Members that the Constitution was passed in 1996. In 2006, the Civil Union Bill was passed and it said marriage officers who want to be exempted from solemnising same sex marriages could apply for the exemption. At the time of this being enacted, the Constitution already existed but despite this, the Civil Union Act was passed. An Act passed by Parliament gave marriage officers the right to be exempted from solemnising same sex marriages. While she agreed this should be repealed, the current Civil Union Amendment Bill before the Committee should save the rights of the officers retrospectively. She pointed Members to section 172 of the Constitution which dealt with the powers of a court in terms of retrospective application of the law.
The Chairperson interjected to note the matter has not been taken to court.
Adv Mpikashe acknowledged this but said the right of exemption was given to marriage officers in an Act of Parliament. Section 172 (1) of the Constitution said “When deciding a constitutional matter within its power, the court – (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including – (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect”. She provided another example of a Bill she was busy with, currently before Parliament, where the Department of Transport wants to do away with the Road Accident Fund (RAF) system to be replaced by the Road Accident Benefit Scheme Bill. The Bill seeks to take away the rights of people involved in road accidents to sue the state and claim from the RAF. The Department proposed a scheme where a person involved in an accident would be paid a certain amount of money irrespective of how much that person earned or how much damage was suffered. The Bill however contains a savings provision for claims which arose during the RAF dispensation. She emphasised these rights were given by an Act of Parliament.
The Chairperson acknowledged that the right was given by Parliament but it was now being amended and the right was being taken away.
Ms D Carter (COPE) noted that two wrongs do not make a right. The Constitution is clear on its supremacy in section 2. Examples made were problematic – members of the public cannot be compared to state officials. The matter in question is 400 state employees who are not allowed to discriminate against the public yet here was a section which allowed for discrimination against same sex marriage. A groundbreaking judgement was that of Christian Education SA vs. Minister of Education where the Constitutional Court found believers cannot claim an automatic right to be exempted on their beliefs by the laws of the land – this should be looked at. Chapter 10 of the Constitution is extremely clear on services being provided impartially, fairly, equitably and without bias. She did not have a problem with a phasing in period of perhaps 12 or 16 months but it would be problematic to allow 400 people to discriminate as long as they are in the employ of the Department – what if someone was employed for the next 30 years: would this mean they would be allowed to discriminate against same sex marriage for the next 30 years?
The Chairperson said the bigger argument was that the state cannot be allowed to discriminate. He did not understand the reasoning behind retaining a right which is well known for not upholding constitutional muster – why is it being defended?
Adv Erasmus explained the Department was not defending – the Department is an implementer of the law and is there to advise the Committee on what could happen. The Committee must make an informed decision based on all information placed before it – it is the role of the bureaucrats to bring this information forward. There is a possibility of litigation and the Committee must be aware of this. To ask why section 6 was inserted into the Principal Act is water under the bridge – the aim is now to move forward in a seamless manner.
The Chairperson asked if this meant accommodating the Home Affairs officials who discriminated against same sex marriage.
Adv Erasmus said he was not present to act on behalf of the officials – he was present to advise the Committee on the legal aspects of the Bill.
The Chairperson said the Committee is trying to navigate this right of exemption. He asked if there was closer analysis of why these marriage officers applied for exemption – on which grounds? What was the reasoning behind the application to the Minister?
The Department responded that when there were public hearings, objections were raised. Two elements were looked at during the considerations – one being to look at state marriage officers who might object on the basis of religion, belief or conscious.
The Chairperson interjected to say it was unconstitutional for state marriage officers to object to same sex marriage on those grounds – these officers are meant to implement the law.
The Department replied that these considerations formed part of the debate. The Department did look at measures to prevent discrimination when complaints arose but unfortunately this was looked at at a late stage. He suggested the Committee go back and look at judgements around retrospectivity if it was not fully convinced.
The Chairperson agreed it is important to exhaust the process. He asked that the Committee look at a way forward.
Mr Hoosan, gauging the view of the Committee, found there is no support for the proposed new clause – he certainly would not support it. The Committee cannot easily dismiss the possibility of a legal challenge, as the Department has cautioned. It should also not be assumed that the legal challenge would succeed. He suggested the Department come back to the Committee on the prospects of success of such a challenge so that the Committee was not accused of acting irresponsibly. He suspected such case by a civil servant would not succeed. It should be remembered that prior to 1996, many civil servants discriminated against people of colour – an example is a police officer. If legislation did not repeal those rights granted to them, there would still be this discrimination against race. Based on this, he found it highly unlikely that the proposed savings provision would be considered constitutional.
He asked that the Committee look at another matter in relation to the Bill. He asked that Members go to section 8 (1) of the Principal Act - the section read: “A person may only be a spouse or partner in one marriage or civil partnership, as the case may be, at any given time”. He found that many of the provisions in the Principal Act came from the Marriage Act which was enacted in the 1960s. The reality is that in the South African society, many people, for religious or cultural reasons, have more than one spouse but the law only allowed for one. The practical reality is then that thousands of women are discriminated against in terms of the law because their husband can only hold one wife legally and two or three other wives in terms of customary law. He appealed for the Committee to deal with this at its next engagement on the Bill and the Department could also provide an opinion thereon. The Principal Act does not fully cover the current circumstances in SA.
The Chairperson said the matter was noted – there would be many other areas to look at. It is important that any further amendments did not discriminate against anyone but used the supremacy of the Constitution as a guide. In terms of the way forward, the Department and Parliament’s Legal Services must look at the rights afforded to state marriage officers and then return to guide the Committee in navigating the matter. The Committee expected that when section 6 is repealed, these rights must fall. Other legislation that gives government officials the right to use their culture or religion to discriminate against providing a service must be looked at. In fact the state has no business in the affairs of any couples – these officials are simply there to provide a service. He emphasised the Bill would not be rushed – the Committee had until the end of the month to consider the Bill. The team thus had work to do to present case studies to the Committee.
Mr Hoosan asked that the team also come back with the details of section 8 (1) of the Principal Act
The Chairperson also reminded the Committee about the suggestion to amend section 4 (1) of the Principal Act which stated: “A marriage officer may solemnise a civil union in accordance with the provisions of this Act”. The Committee wanted to propose amending “may” to “shall” or “must”.
Ms S Nkomo (IFP) raised the matter of timeframes for implementation.
The Chairperson explained that once Parliament adopted the amendment, it would then go to the President to assent. The onus was then on the Department to implement. He reiterated the Committee was of the opinion that the exemption of state marriage officers to elect not to solemnise same sex marriage be repealed completely – despite religion or culture, those of the employ of the state are there to carry out a service without discrimination. The team must come back and convince the Committee otherwise in terms of litigation or infringement on the rights of employees of the state.
Adv Mpikashe was in agreement with the Committee – last week she informed Members that section 6 of the Civil Union Act is unconstitutional. No state employee should have the right to deny someone a civil union because of their religious rights. She is here to protect the Committee and manage legal risks which could arise. If the Committee did not look into the savings provision, it ran the risk of being challenged by government officials which have been given a right through a prior Act of Parliament – the Committee was however not obliged to take on board this opinion.
The Chairperson was pleased with the work of Adv Mpikashe and she was correct to raise the points she had. The Committee was now simply requesting further information regarding this right provided to state-employed marriage officers. There were no hard feelings – the exercise in itself was healthy.
Electoral Laws Amendment Bill [B33-2018]
Mr Sy Mamabolo, Independent Electoral Commission (IEC) Chief Electoral Officer, informed the Committee that there were no submissions from members of the public. There was the additional clause relative to voters for whom the IEC did not have addresses relative to the Local Government Municipal Electoral Act to include in the Electoral Laws Amendment Bill.
The Chairperson explained the purpose of public comments and hearings are there for people to advance their views and recommend further amendments. He sought more information on why and how this amendment arose and its implications in terms of public participation.
Mr Nathi Mjenxane, Parliamentary Legal Advisor, responded that the amendment came after the Bill was already introduced to Parliament. The amendment affects the local government regime. The constitutional obligation to consult interested and affected parties is well established along with Parliament’s role in facilitating public involvement. If the Bill intends to amend legislative provisions, it must seek permission of the Assembly to do so – this is procedural and has always been applied. The Committee can advertise the intended amendment for public participation, since it was proposed after the Bill had already been introduced, in order to comply with the requirement for public involvement.
The Chairperson asked about the process of the Bill going to the NCOP and then returning to the National Assembly. The Bill did arrive before the Committee until very late after lying with the Department for ages. Parliament must now be bulldozed – this would not be done. He asked about the necessity of the newly proposed amendment especially in terms of consultations with the parties.
Ms Janet Love, IEC Commissioner, said the Commission did not want the Bill to be delayed at all – this urgency overrides the newly proposed amendment. This could be done on another occasion. The proposed amendment was merely to harmonise the local government election but it can be dealt with at a later point. To avoid any delay, she proposed the amendment be dropped for now.
The Chairperson asked if dropping of the newly proposed amendment would create any challenges as the Commission prepared for next year’s election.
Ms Love responded that the proposed amendment did not affect the provincial or national election.
The Chairperson said the amendment could be placed on the table once the Commission prepared for the next local government election.
The Committee proceeded with the clause by clause adoption of the 2018 Electoral Laws Amendment Bill [B33-2018].
The Chairperson asked what would happen if someone else already used the acronym “IEC”.
Ms Love clarified the Bill referred to new use and not old use.
Mr Hoosen suggested the clause refer to future use. He was concerned that another company could be using the acronym “IEC”.
Ms Love said the provision did not apply retrospectively because it would fall foul of the law. The Commission however took the guidance of the Committee but the law would not say the provision did not apply retrospectively.
The Chairperson thought the use of the acronym “IEC” for a company was only problematic if the company did the same work as the Commission or was involved in voter education etc – what about a company which cut down trees but used the acronym “IEC”?
Ms Love did not see a problem in adding an amendment to say the restriction on use of name only applied in the context of elections.
The Committee agreed and adopted the following amendment to clause 5: on page 3, in line 37, after “‘IEC”, to insert “for the purposes of elections”.
Clauses 6 to 19 were then adopted by the Committee.
Ms Love noted the typo in the clause under (c) – she suggested the amendment to omit “1(a)” and to substitute it with “(1A)”.
The Committee moved for adoption of the clause with the amendment.
The remaining clauses of the Bill were then adopted by the Committee i.e. clauses 21 to 23.
The Department said there would be a slight amendment of the memoranda of the objects of the Bill to capture the two amendments made.
Ms Love noted that under the clause-by-clause analysis in the Bill, institutions consulted, the second bullet should be amended to read “Office of the Chief State Law Advisor” instead of “Office of the Chief Justice”.
Mr Mjenxane said the Office of the Chief State Law Advisor is part of the process anyway so is not usually listed as an institution consulted. He suggested the bullet be deleted.
The Committee adopted the entire Bill with amendments made.
Mr Hoosen said although he supported the Bill in principle, he would need to consult with his party caucus before moving on the adoption of the Bill.
Ms Love expressed appreciation for the assistance the Committee provided in getting the Bill through.
The Chairperson commended Parliament’s Legal Advisors in their sterling work in guiding the Committee through the process, together with the Department even though the Bill had sat with the Department for a very long time. He also thanked the IEC. The Bill would now go to the National Assembly for adoption before moving to the NCOP.
The Chairperson noted that Members would be provided of the Committee’s Draft Legacy Report for consideration and adoption next week. Members were encouraged to provide their input on the Report directly to the Committee Content Advisor.
The meeting was adjourned.
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