Legal Opinion on Public Participation; Civil Union Amendment Bill: consideration of written submissions

Meeting report

The Chairperson said that the Committee had sought legal opinion on public participation and submissions on the Civil Union Amendments Bill. She asked the parliamentary legal advisor to take the Committee through the legal opinion.

Legal opinion on public participation

Ms Noluthando Mpikashe, Legal Advisor, Constitutional and Legal Services Office, Parliament, informed the Committee that her Office was requested to provide a legal opinion on the procedure in respect of public participation.

Two organisations that made written submissions on the Civil Union Bill had written to the Committee requesting an opportunity to make oral submissions. The organisations allege that should the Committee not yield to their request such failure might render the Bill unconstitutional especially in light of the fact that the Portfolio Committee did not conduct public hearings. 

The legal questions for consideration are thus as follows:

- What does the Constitution require from Parliament in respect of public participation?;

-Does the Select Committee have a constitutional obligation to conduct public hearings, especially if the Portfolio Committee did not do so?; and 

-Should virtual meetings be a hindrance to Parliament giving meaningful public participation?

Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the Constitution of the Republic of South Africa, 1996 (“Constitution”), place a constitutional duty on the National Assembly, the National Council of Provinces and provincial legislatures respectively, to facilitate public participation when executing their legislative processes. In Doctors for Life International v Speaker of the National Assembly and Others1, (“Doctors for life”), a case which is the seminal authority for the principle that legislation can be declared invalid for lack of public participation in the law-making process, the Constitutional Court (“Court”) held:

“In our country, the right to political participation is given effect not only through the political rights guaranteed in section 19 of the Bill of Rights, as supported by the right to freedom of expression but also by imposing a constitutional obligation on legislatures to facilitate public participation in the law-making process.”

The effect of such public participation should be that ‘all parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion. The objective is both symbolical and practical: the persons concerned must be manifestly shown the respect due to them as concerned citizens, and the legislators must have the benefit of all inputs that will enable them to produce the best possible laws.’2 In other words, public participation afforded by Parliament must be meaningful, and it must be of such nature that the Court would find it meaningful and reasonable.

The Courts have reaffirmed the duty on Parliament to involve the public when developing and processing legislation, while also acknowledging that Parliament has discretion to decide how to go about allowing the public to participate in its business. Therefore, the Office is of the view that the Committee has the power to decide how best to fulfil its obligation to facilitate public involvement.  What is important is that there should be reasonable opportunity offered for public to participate in the law making process. The Portfolio Committee, according to the opinion, correctly exercised the same discretion to decide whether to or not have public hearings on the Bill. 

The decision of the Portfolio Committee on Home Affairs not to have public hearings, does not affect this discretion of the Select Committee at all. The Constitution requires facilitation of public involvement. It does not require the holding of public hearings.

Lastly, she stated that virtual meetings are not a hindrance to the Select Committee calling for oral submissions should it decide to exercise its abovementioned discretion on whether or not to call for oral submissions.

The Chairperson said that while the Committee had an obligation to facilitate reasonable and meaningful obligation in terms of the Constitution it has the discretion to decide what would be the best way to facilitate public participation. There was one submission where a group raised concern that the Portfolio Committee of Home Affairs did not have public hearings. The decision of that Committee to not have public hearings did not affect this Committee. The view that the Bill could be unconstitutional because there were no public hearings is incorrect. The Committee had widely advertised the Bill, for written comments, through print media in national and provincial papers. This was done in all official languages from 5 November to 6 December 2019. The Committee had afforded members of the public to have their say. The Committee had received over 300 submissions from both civil society and interested individuals. The Committee had also received presentations from the content advisor on the salient points made in the responses and written submissions. In the previous meeting most members were satisfied and confident that they understood the concerns raised in the submissions. The Committee was in agreement and happy with the public participation process it had facilitated.

Briefing on the written submissions made on the Civil Union Amendment Bill

Ms Mpikashe gave a presentation on the written submissions made to Parliament on the Civil Union Amendments Bill Presentation. The Amendment seeks to repeal section 6 of the Civil Union Act which currently allows civil servants who are employed as marriage officers to submit a request to the Minister that they do not want to solemnise same-sex unions.

Background of the Civil Union Amendment Bill

In the case of Minister of Home Affairs vs Fourie and Others a same sex couple took their complaint to Court and submitted that the law excludes them from publicly celebrating their love and commitment to each other in marriage. They contended that the exclusion comes from the common law definition which states that marriage in South Africa is a union of one man with one woman to the exclusion of others.

In the second case, the Gay and Lesbian Equality Project challenged section 30(1) of the Marriage Act which provides that officers must put to each of the parties the following question: “Do you AB… call all here present to witness that you take CD as your lawful wife (or husband)?” The reference to wife (or husband), they contend, unconstitutionally excludes same-sex couples.

The Constitutional Court found that the failure of the common law and the Marriages Act to provide the means whereby same sex couples can enjoy the same status, entitlements and responsibilities afforded to heterosexual couples constitutes an unjustifiable violation of their right to equal protection of the law under section 9(1) and not to be discriminated against unfairly in terms of section 9(3) of the Constitution. Such a failure represents an unjustifiable violation of their right to dignity in terms of section 10 of the Constitution. Parliament was then ordered to correct the defect while taking into account certain Constitutional considerations.

Submissions made on the Bill

There were submissions which were both for and against the Bill. The ones against mostly state that the repeal of section 6 of the Civil Union Act violates sections 15(1) and 31 of the Constitution. They argued that the proposed amendment will not pass the section 36 limitation test.

Response

Section 15(1) of the Constitution indeed gives everyone the right to freedom of conscience, religion, thought, belief and opinion. This is a fundamental right which is entrenched in international human rights law. However, a distinction must be made between holding a belief and the public expression of the belief. The practice of religion may lead to conflict with other rights, to safeguard such a conflict the Constitution, provides section 31 that the rights of a religious community to practice its religion may not be exercise in a manner that is inconsistent with any provision in the Bill of Rights.

Section 15 like all the rights in the Constitution is not an absolute right. It is subjected to section 36 of the Constitution normally referred to as the limitation clause. Section 36 states that the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society bases on human dignity, equality and freedom.

The Courts however have shown an inclination to avoid a limitation clause analyses of section 15 where possible, preferring instead to restrict the scope of the right. The effect is that not every practise claiming to be an exercise of the freedom of religion, belief, conscience, and thought is treated as such by the courts.

The courts use three techniques to restrict the scope of the right to freedom of religion, belief, conscience and though:

-Testing the sincerity of the claimant’s belief;

-Require the claimant to show a substantial burden on the exercise of freedom of religion or that the prohibited practice is central to the tenet of the religion; and

-Contextual interpretation: the courts will not protect practises that are specifically excluded from protection elsewhere in the Constitution, in this case the right not to be discriminated on the grounds of gender, sex and sexual orientation which is protected under section 9 of the Constitution.

The principle developed in South Africa’s jurisprudence is that the exercise of freedom or religion must not be inconsistent with our rights guaranteed by the Bill of Rights which the state has a duty to respect, protect, promote and fulfil. Section 6 will not pass the Constitutional muster.

Submission by Freedom of Religion SA

FORSA submitted that the repeal of section 6 of the Civil Union Act would not pass Constitutional muster because there are less restrictive means that exist for achieving the purpose of ensuring that same sex couples wishing to conclude a civil union are able to.

The Bill should be rejected and replace with new clauses.

Response

Rights in the Constitution are not absolute and they can indeed be limited in terms of section 36 of the Constitution. Courts avoid the limitation clauses analyses when dealing with the right but rather go for contextual interpretation. The Courts will not protect practices under section 15 of the Constitution that are not protected elsewhere in the Constitution.

Response

Section 197 of the Constitution places and obligation on the public service to function in terms of national legislation and to loyally execute the lawful policies of the government of the day, which the Civil Union Act is.

Section 197(3) further provides that no employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause.

Another submission

Free Gender and the Legal Resources Centre submitted that they are concerned about the 24 month period referred to in clause 2 of the Bill.

They submit that allowing marriage officers another 24 months to continue to discriminate on same sex couples is a continuous violation of the right to equality and dignity of the same-sex couples. 

The Department of Home Affairs would respond to this submission.

The Chairperson asked the Department to respond to the query about the 24 month period of transition given to enact the Bill.

Adv Tsietsi Sebelemetja, Director: Legal Services, DHA, said that the Department had worked together with the Committee and had considered all the submissions that were made. The reason the Department needed a transitional period of 24 months was to prepare officials and retrain them. The Department needed to go around the country teaching officials about the Civil Union Amendment Bill. The balance of rights also needed to be explained to officials. The Department thought it needed a transition period of 24 months to reorganise itself. The training, to sensitise and enlighten officials, was still ongoing. Train officials and teach them about the balance of rights. He said that going forward when advertisements were made for marriage officials it would be stipulated the types of civil unions that would be solemnised and that it would not be allowed to decline solemnising same-sex couples.

Ms Z Ncitha (ANC, Eastern Cape) said that she was happy with the legal opinion that was offered with regards to Parliament’s role in facilitating public participation. She said that because the Bill was in line with the Constitution there was no way that anyone could cry foul and say that the Bill was infringing on their rights.

Mr S Mfayela (IFP, KwaZulu Natal) said that some of his concerns were answered in the presentation. His main concern was about the officials who would officiate the marriages. There was no argument about the marriage there was only disagreement about the process. All of his concerns had been addressed through this meeting.

Mr T Dodovu (ANC, North West) said that the presentation was important as the people of South Africa always needed to be at the centre of what was being done in Parliament. Public participation was one of the cornerstones of the Constitutional dispensation. Parliament needed to ensure in the future that people were brought into the decision making process as best as possible. He said the going forward Parliament needed to sit down and put in place simple and clear mechanisms to ensure public participation in the law making process. This Bill was very important as it also protected women who, in the past, were not protected. The important thing to consider is how to teach people about the Bill so that they would abide and adhere to the law.

The Chairperson said that Parliament was the legislative authority and that there was a clear separation of powers. She just wanted to clarify that section 6 refers only to public servants who are marriage officers. The Constitution was quite clear with regards to the principles that underlined public service and that the State may not discriminate. Public servants are expected not to discriminate and to provide services in a fair manner to ensure the realisation of rights. In the presentation the termination of pregnancies was mentioned. Those doctors and nurses were not given any exemptions from performing their duties because of religious reasons. Was there any other precedent in the public service that gives public servants exemptions, based on religious reasons, from providing certain services? She also wanted clarity on the issue of the 24 month transitional period.

Ms Mpikashe said that section 6 of the Civil Union Act only applies to those marriage officers who are employed by the State. The Court has made it clear that other marriage officers, like priests or imams, do not have to solemnise same-sex marriages. The Amendment Bill, therefore, only applies to marriage officers who are employed by the State. In her research no other public servant has been given a choice to apply for an exemption from performing their duties.

Mr G Michalakis (DA, Free State) had a question on the transitional period. The aim of the Bill was to get rid of discriminatory practice. What was then the need for the transition period? Would it not be more advisable to make the Bill immediately effective?

Adv Tsietsi said that marriage officers who are not employed by the State are registered through their respective organisation. Section 6 only deals with public servants. There was no other precedent as previously discussed. Only marriage officers were allowed this kind of exemption. The transitional period was put in place to give the Department time to initiate dialogue and bring on board those marriage officers who did not agree with the Bill. The Department did not want to continue the discrimination but also wanted to bring on board all marriage officers. This process had been started but still needed to be concluded throughout the country.

The Chairperson said that in this matter the Committee was dealing with competing rights. Members had been privy to all the documents and submissions that were received from individuals and civil society organisations. The Chairperson thanked all organisations and individuals for making submissions on the Bill. She also thanked the legal advisors for their presentation, advice and input. The Chairperson’s office would put a report together on this matter and the deliberations on the Bill would be taken further.

The meeting was adjourned.