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HOME AFFAIRS PORTFOLIO COMMITTEE
17 October 2006
CIVIL UNION BILL; IMMIGRATION AMENDMENT BILL; FILMS & PUBLICATIONS AMENDMENT BILL: HEARINGS
Chairperson: Mr P Chauke (ANC)
Documents handed out:
Civil Union Bill [B26-2006]
PriceWaterhouseCoopers submission on Immigration Amendment Bill
Christian Lawyers Association submission on Civil Union Bill
Christian Brethren Church submission on Civil Union Bill
Centre for Applied Legal Studies submission on Civil Union Bill
Joint Working Group OUT submission on Civil Union Bill
Triangle Project submission 1(Debunking Myth-making)
Triangle Project submission 2 (Same Sex Relationships)
South African Pagan Rights Alliance submission
Christian Action Network submission
de Vos and Barnard submission
Dutch Reformed Church submission
Christian View Network submission Part 1 and Part 2
Defence for Marriage submission
South African Catholic Bishops Conference submission
Human Life International submission
South African Council of Churches submission
Couples for Christ submission
Consultation of Christian Churches submission
Business Unity South Africa (BUSA) submission on Films & Publication Amendment Bill
Constitutional Court case judgment: Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister
Summary of judgment
Doctors for Life and John Smyth submission
Marriage Alliance of South Africa
Summary of Domestic Partnership Report
PriceWaterhouseCoopers gave a brief submission on the Immigration Amendment Bill. In the main the Bill was supported but it was noted that some of the provisions affected multinational companies and employees. The organisation asked for confirmation that foreign spouses would be given the rights to work, and hoped that the Scarce Skills list of the Department of Labour would be used when making quotas. It recommended that the maximum period of employment for intra-company transfers, involving foreign nationals, should be five years to fall in line with tax legislation. It hoped that no restrictions would be placed on the filling of posts with further foreign nationals on expiry of one foreigner’s contract. Questions by members addressed the tax implications and the Department of Home Affairs indicated it would respond at the appropriate time.
Public hearings recommenced on the Civil Union Bill. The Christian Lawyers Association submitted that the Constitutional Court judgments had given rise to some uncertainty as to what the Court had mandated parliament to do in order to give effect to the judgment. The Association believed that parliament did not have to tamper with the definition of marriage, but merely to create legislation that would create the same effects and give the same rights as marriage to same sex couples. There was a need to balance the rights and desires of different groups in society. The Association believed that the Bill was unconstitutional for a number of reasons. It had not fulfilled the mandate of the Court. The Association explained their interpretation of the Fourie judgment, believing that the Court had drawn a distinction between marriage as a social institution and the effects of marriage. Parliament must decide which model of marriage it wished to support. The Association outlined its substantive concerns also with the Bill’s drafting. It believed the Bill devalued the institution of marriage, and queried whether it had achieved its protective intention. It was suggested that Parliament must ask the Constitutional Court for an extension of time to pass legislation. Further public consultation must be held. Questions by Members related to the definition of marriage, the likelihood of success of an application for extension, and the other legislation that would need to be amended if the Constitutional Court placed a new interpretation on “spouse”. It was suggested that domestic partnerships should be addressed in a separate Bill.
The Christian Brethren Church submitted that the Civil Union Bill conflicted with what appeared in the Bible. Mankind was depraved and needed redemption. Same sex marriages, which offended against God’s dictates, were displeasing. Only heterosexual marriage was supported, as the sexes were complementary and allowed for procreation of children and a family unit. The Christian Brethren Church believed that sexual orientation could change, and spiritual changes could lead people to changes in their lifestyle. South Africa should not impose its will on the people by legislating for immorality. This type of law would affect the moral fibre of the country. Members asked the Church representatives for their interpretation of the equality clauses and questioned whether lifestyle choices should be legislated upon.
The Centre for Applied Legal Studies (CALS) submitted that the Civil Union Bill would not address the concerns nor remedy the issues of unconstitutionality touched on by the Court, but would create further discrimination and stigma. CALS suggested that the Marriage Act should be amended to open marriages to same sex couples. The differential treatment of heterosexual and same sex marriages ran contrary to enhancing dignity. On the issue of domestic partnerships, CALS supported the principle but believed that the legislation did not offer sufficient protection, and suffered flaws in drafting. CALS believed domestic partnerships should be allowed to co-exist with customary marriages, and must apply equally. Various amended wording was suggested. The submissions of the Women’s Legal Centre relating to support were endorsed. Questions addressed the focus of the research into domestic partnerships, the suggestion that all marriages be scrapped, the separation into two pieces of legislation of the domestic partnership and same sex marriage issues, and the argument that the Bill could be retroactive in application.
The Joint Working Group represented 17 member organisations. It was concerned that the Civil Union Bill attempted to create a separate system without sufficient justification. It promoted inequality through the notion of separate but equal rights. Private views and public morality must be separated. Different orientation was no justification for differential treatment. Civil partnerships were not equal to marriage in that they did not carry the same reputation, influence, standing in the community, prestige, rituals and spiritual and religious meaning. It therefore recommended that the current wording of Chapter 2 be deleted altogether. The Civil Union Bill should be renamed and should provide for domestic partnerships for both single sex and heterosexual couples. A Marriage Act Amendment Bill should be drafted as a separate Bill to allow single sex couples to marry. Questions by Members addressed the possibility of splitting the proposed legislation, and whether all marriages should be regarded as civil unions.
In the afternoon session of the public hearings the Committee heard submissions by a number of presenters representing the gay and lesbian community as well as a number of Christian organisations and the South African Pagan Rights Association. Whilst the majority of Christian organisation called for an amendment to the Constitution, the gay and lesbian submissions called for the legislation that would afford homosexual couples who wanted to get married the same rights as their heterosexual counterparts and agreed that the separate but equal rights apparent in the Civil Union Bill were unacceptable. Concerns were raised around how the legislation would impact on children. Members were concerned about the recurring accusation that the public hearing process had been flawed.
Immigration Amendment Bill: PriceWaterhouseCoopers (PWC) submission
Ms Linda Lamprecht, PWC Senior Consultant: Immigration, stated that PWC welcomed the amendments in clarifying certain aspects of immigration but wished to highlight the effect of those amendments on the business community, which comprised many of their clients. PWC had made previous submissions to the Committee when it had dealt with the previous legislation.
Section 4 of the Amendment Bill concerned the authority granted to foreign nationals to work on visitors’ permits for up to three years. This was welcomed in principle. PWC sought confirmation that authority was given in Section 4, read with section 11(1)(b)(iv), to foreign spouses to work, which would enhance the ability of South African companies to attract skilled foreign workers.
Section 19(5) related to intra-company transfers and permitted that the maximum period of work was now four years. This fell short of industry requirements and was not consistent with the tax laws, which gave provision for a five-year period. It was recommended that the right to work on intra-company transfers should be extended to five years. Ms Lamprecht referred also to apparent plans that the Department of Home Affairs was intending to include a provision that no foreign national may fill the position subsequent to the permit having been granted, which PWC would consider a retrogressive step, and recommended that if this was so, no limitations be placed on the filling of posts.
The amendment to section 20 was welcomed.
The amendment to section 27 was noted and PWC awaited the introduction of revised quotas and hoped that the Scarce Skills list of the Department of Labour would be reflected in the quotas.
The Chairperson asked the Department of Home Affairs (DHA) to comment on the submission.
Adv Deon Erasmus, Director, Drafting: Legal Services, stated that the Department had specific reasons, which would be conveyed to the Committee at an appropriate time, for the four and not five-year period.
Mr M Sikakane (ANC) asked for clarification by PWC on the five-year period.
Mr S Swart (ACDP) asked for some clarity on the tax implications.
Ms Lamprecht stated that the five-year period was generally used internationally. Tax and immigration legislation usually ran side by side. Previously South Africa had applied tax regimes that a foreigner would be taxed after three years on income earned in South Africa and on the rise in value of assets outside South Africa. There would be greater benefit to South Africa if people were to stay longer. Some would be taxed in both countries and tax credits would not always apply.
The Chairperson noted that the State Law Advisors would address the Committee in due course about the tax laws. In the meantime Mr S Swart asked that PWC send some further information to the Committee on double taxation agreements and the current position, and Ms Lamprecht agreed to do so.
Mr M Swart (DA) asked how DHA intended to introduce further provisions, and whether there was any indication that this would be by regulation or through a Bill.
Ms Lamprecht reported that PWC had heard from the Law Society in Johannesburg that there were rumours that DHA would “slip in” such provisions and PWC itself was seeking clarity.
Ms S Kalyan (DA) asked why there was concern about paragraph 4.3, and why there was any necessity that foreign nationals, who would surely have transferred their skills to South Africans, should not be excluded from filling posts after the initial period.
Ms Lamprecht replied that intra-company transfers were in practice internationally and many multinational countries made a habit of sending top management to other countries for periods such as two to three years. South Africans would also benefit from such arrangements. There was certainly skills transfer but multinational companies should not be precluded from investing in and sending people to South Africa. It was clear that they expended large amounts on skills training locally.
Civil Union Bill: Christian Lawyers Association (CLA) submission
Ms Freda Conradie, CLA Chairperson, reported that CLA had existed since 1993, and its last conference in August 2006 had mandated the submissions now being made. She introduced Ms Hazel Gumede Shelton, a constitutional law expert and member of CLA.
Ms Shelton stated that the basis of the submissions would relate to the uncertainty as to what the Constitutional Court had mandated parliament to do when giving the judgement in the Fourie matter in December 2005. Before attempting to give effect to the judgment it was necessary to understand precisely what it meant. The Court had stated that there must be a legislative framework to give rights to same sex couples. CLA believed that there was a distinction between a legislative framework and marriage, which formed only one of the social relationships. CLA understood the Court judgment to acknowledge that heterosexual marriages were a social institution, which the State should protect and referred to specific cases to support its contention. There was a need to balance the rights and desires of different groups in society.
CLA believed that the Bill was unconstitutional for a number of reasons. It appeared to try to appease the religious concerns by leaving the Marriage Act untouched. Its effect was, however, to alter the institution of marriage. It did not balance the interests of society. It did not meet the Court’s requirements of providing a proper legislative framework to address the needs of the gay and lesbian community (GLC). It did not fulfil the Constitutional Court requirements. Even without the Fourie judgment, its provisions would be unconstitutional. Critical policy issues were raised but there was lack of clarity.
The first question was what the Court actually mandated parliament to do. There was still no clear statement in the submissions so far as to whether parliament was mandated to change the institution of marriage, or mandated to set up a legislative framework to address the rights of the GLC. CLA believed that only the second option was authorised. The Aliens Control case had called for “institutional recognition” and “comprehensive legislation”. There was no requirement that the interests of gay or lesbian couples should be recognised through the institution of marriage, instead of through some other framework. Arguments in support of same sex marriages proposed that anything less than full marriage status would be a violation of human rights. CLA did not agree as it was merely a legislative framework that was required. The Fourie judgment had in effect broken the international trend in which religious groups would be pitted against the GLC. The Fourie judgment attempted to break a stalemate and aimed to balance the rights of same sex couples against those who disagreed that they should be permitted to marry.
When the sodomy legislation was struck down the Constitutional Court stated that any person disagreeing with same sex marriages was entitled to hold and express his views. Some organisations held that these views must be confined to the religious arena, but in fact there was a sharing of the public space. The Court spoke of “public life” and was concerned with secular space. The whole notion of pluralism was to understand the importance of the modus vivendi of society. Most arguments were flawed as they assumed that one side would eventually be convinced of the other side’s argument. Disagreements on laws were often based on lack of knowledge. The question was rather how to divide the public space. The Court had drawn a distinction between the essential nature of marriage and the benefits obtained through marriage. It did not say that marriage must be a male/female definition was unconstitutional, but did say that it was unconstitutional that same sex couples could not share the benefits obtained through a male/female marriage. Therefore there was a distinction between marriage and its legal consequences. Marriage was only one form of family relationship. The lack of protection to same sex couples was the issue.
In considering whether marriage should be opened up, it was necessary to consider what marriage did. It was a social institution. Parliament should be using an objective test to determine what marriage was and whether it should be opened.
The CLA believed that there were competing models of marriage. The traditional model understood marriage as a social institution between males and females. The liberal model understood it rather to be a contract between individuals, who were not necessarily male and female. These views were divergently opposed and parliament must decide which model to adopt. If the traditional view were accepted, then the Bill as framed would be unconstitutional. If the liberal model were to be accepted the Bill could be regarded as creating a separate but equal relationship, but still had constitutional flaws. CLA believed that the institution of marriage gave fidelity to Western legal history, the understanding of civil society and social institutions, and the African understanding of community and culture, as well as the normative understanding and realities of society. South Africa had a crisis of parenthood and the breakdown of social institutions contributed to crime and other social ills. South Africa needed therefore to protect and promote the institution of marriage as a vehicle to back up society.
The role of procreation was one of the institutions of marriage, although the Constitutional Court said it was not a defining character of conjugal relations. CLA believed the Court had not fully addressed the substance of the procreation arguments as marriage ameliorated the consequences of procreation. Research presented to the Court included the South African Law Commission documents and studies from the Centre for Applied Legal Studies, which contained some errors and had come under criticism. The assumption that the common law definition of marriage was unfairly discriminatory was unfounded. The State was not obliged to sanction the personal preferences of individuals.
CLA also had some substantive concerns with the Bill, which were fully outlined in the written submissions. There were problems with several of the definitions. The objectives of Chapter 2 of the Bill did not seem to match the formulation of Clause 11, and the wording of the various clauses was also subject to some doubt. Chapter 3 did not address unregistered domestic partnerships in addition to registered domestic partnerships. No age determination was given.
In brief, CLA believed that the Bill devalued the institution of marriage, and queried whether it had achieved its protective intention. It was necessary that consultation be carried out with the House of Traditional Leaders.
CLA had suggested that the Bill was unconstitutional because it did not grapple properly with the institution of marriage, nor provide a proper legal framework for the GLC. It had not examined the different aspects of different relationships, nor had made any proper provision for children’s issues. It could clearly not be resolved within the time limits. CLA therefore suggested that the only option was for parliament to go back to the Constitutional Court and request an extension of time. The judgment and time limits presupposed that certain processes were already in place, such as the Law Commission documents, whereas some issues were in fact not properly addressed. CLA believed that further public consultation must be held. No groups were happy with the Bill. There were still important policy considerations to be analysed and decided upon
The Chairperson asked whether CLA had examined the definition of marriage in the 1961 Marriage Act.
Mr F Beukman (ANC) asked if adding a definition of marriage to Chapter 1 would add any problems.
Ms Shelton replied that the judgments were predicated on the definitions of the common law and the Marriage Act, both of which assumed a male/female relationship. CLA wanted to emphasis that there was a fine balance to be struck, and that the importance lay in the distinction that the Court had made. The finding of discrimination related to the fact that heterosexuals obtained through marriage what homosexuals and lesbians could not obtain through any institution at all. The problem did not lie in the Marriage Act, but in the fact that there was no way, either through the Marriage Act or any other means, to access the benefits of marriage. The nature of the institution of marriage, and its definition, was not discussed.
Mr Beukman asked whether any parliamentary law advisors were present to comment on the likelihood of success of an approach to the Constitutional Court, but was advised that they were not. The Chairperson stated that this matter would therefore have to be considered by the Committee later.
Mr S Swart asked for an indication of the prospects of success of an application for extension, and what would be the result if the Constitutional Court were to refuse the application. He asked if CLA could comment on best practice internationally.
Ms Shelton said that government had generally shown itself insufficiently prepared at Constitutional Court hearings and the prospects of success were directly related to the ability to articulate the issues and to persuade the Court why it was impossible to deal with the matter. Parliament had received the Bill in September or October 2005 and it was due to be finalised in November 2006. There was a practical consideration, that more work needed to be done, and a substantive issue in that certain documents were assumed to be ready when they were not. The public consultation process showed that there were many divisions in society, and a need to rethink the issues. In regard to international best practice, she stated that this pointed to either civil unions or domestic partnerships, but it was necessary to bear in mind the directive of the Court to find a solution while meeting the Constitutional requirements and the notion of equality.
Ms Kalyan asked if the Constitutional Court would amend the current Marriage Act if parliament did not introduce any other legislation in the time frame given.
Ms Shelton stated that if parliament did not come up with legislation by the set date, then the Constitutional Court would attach a meaning to “spouse” in the Marriage Act. She did not know whether that alone would allow the right to the GLC to enter into marriages. This, however, would not have the effect, in her view, of changing the common law definition of marriage nor of defining what a spouse would mean. The dissenting judgment of Judge O’Regan had suggested that the common law should be redefined and that “spouse” be extended. The majority judgment merely suggested that “spouse” be extended. There was not sufficient legal clarity of the effect of this action. The main problem was that parliament had not agreed how to set up a legislative framework.
Mr Likotsi also asked what CLA would suggest as the next step if the application for extension were not decided upon, and the Chairperson pointed out that if the Marriage Act were to be amended there were a number of other pieces of legislation, dealing with children’s issues, pension laws and so forth, that would also need consideration.
Ms Shelton confirmed that if the Constitutional Court were to step in, their actions would affect a host of issues. She summarised that the Fourie case had noted that marriage was of significance in society, and changing marriage would be important. The Civil Union Bill presently stated that wherever reference was made to words such as “male or female” or “husband” and “wife” this should be read as applying also to same sex couples. However, CLA believed that a straight substitution was not the answer. The Women’s Legal Centre submissions had already pointed to the Pension Act complexities. The issue of children had been addressed by CLA. There were assumptions of paternity and issues of biological parents that were simply not transferable to same sex couples. Parliament should engage further with same sex couples to ask what would be acceptable. This should have been done before the draft was created.
On this issue, Ms Beth Goldblatt, Senior Researcher, Centre for Applied Legal Studies, commented (at a later stage of the meeting) that she did not believe the prospects of success of an application for extension were good, and that the Constitutional Court had previously expressed its frustration that government had not dealt with matters within time limits.
Mr W Skhosana (ANC) asked if CLA believed that the question of domestic partnerships, whether registered or non-registered, should be dealt with in another separate Bill.
Ms Shelton stated that some proposals were put forward in the previous day’s hearing that civil unions should be entirely separate from marriages. Including a definition of male and female would give effect to the institution of marriage but not to the rights attached to it. If the concept of civil unions were to be separated from the concept of marriages then the Civil Union Bill should deal with all effects in the same way that the Recognition of Customary Marriages Act dealt with them. She would endorse some suggestions the previous day that the domestic partnerships be excluded from the Bill and dealt with separately. Domestic partnerships had other issues; for instance there was no duty of support while the parties lived together but only on dissolution. All complexities had not been dealt with. CLA believed that further thinking was necessary on the effects of different partnerships and a closer look should be done into all research.
Mr Sikakane noted that the emphasis of the Court was not on the social institution of marriage but on the discrimination. He asked whether CLA believed that the Marriage Act did discriminate against the GLC.
Civil Union Bill: Christian Brethren Church submission
Mr C Isaacs, Pastor in the Christian Brethren Church (CBC), believed that the Civil Union Bill conflicted with what appeared in the Bible. This was an explosive Bill that had created a stir amongst the public. The comments from the Church must be seen in a context that they were intended to generate clear thinking and promote respect. The principles of the CBC supported constructive criticism that was not intended to dehumanise those in the GLC. The CBC believed in human sexuality, and believed that the sexuality determined identity. It believed in the total depravity of mankind, which needed redemption. However, the Church offered a message of hope, love and kindness. All human personality was tainted with sin, and this included sexuality. All relationships and activities that deviated from God’s word were displeasing to Him. Such activities would include polygamy, casual encounters, adultery, and same sex marriages. God had prescribed that a man must be joined to “his wife” and that only heterosexual relationships were sanctioned. God had created both man and woman and the institution of marriage was almost as old as humanity itself. The sexes were complementary and this therefore constituted the basis for heterosexual marriages, for the procreation of children and the creation of a family unit and upliftment of society at a universal level. Only heterosexual couples could consummate their love to create new life. This allowed a child to have both a mother and father, which was in keeping with the Constitution. A true family unit could not evolve from same-sex marriages. It was disappointing to see that the ANC had given its endorsement to the Bill at Cabinet level. The Church believed that Parliament had an onerous task ahead and would offer the power of prayer.
Mr Isaacs quoted from a publication which stated that there were many problems with “family life” as generally known, and stated that the Churches were aware of the problems. However, this spurred them to focus on values and attempt to strengthen family ties. Insofar as sexual orientation was concerned, the CBC believed that orientation could change, and a variety of lifestyles was possible, including monogamy, or multiple partnerships. Some gay or lesbian people would be referred for psychotherapy to underscore the principle of change, and they could change also from one spiritual condition to another. Paul’s letters to the Corinthians noted that pederasts could enter Heaven if spiritual changes would lead them to changes in their lifestyle. Democracy must involve putting all bad laws aside. The doctrine of proportionality would force CBC to look at issues from a particular perspective. On a global level, same sex marriages had been introduced in Denmark, the age of consent had been lowered in Germany and Denmark and the consequent problems would fall to the Church to sort out. Easing of laws and morality would exacerbate the problems of the country. South Africa would merely impose a different type of apartheid if the State were to impose its will on the people by legislating for immorality. This type of law would affect the moral fibre of the country. The Constitution was not written in stone and the foundations of the Constitution must be tested by the will of the people. The Government must take note of the will of the masses and ensure that there was no further degeneration in moral standards.
Mr M Likotsi (PAC) asked CBC to comment on the statement that all should be equal before the law.
Mr Max Strauss, Pastor CBC stated that CBC interpreted this statement to mean that all discrimination based on colour had been removed and that liberty had been created.
The Chairperson suggested that CBC should carefully study the Constitution and the Bill of Rights.
The Chairperson asked for some practical suggestions on what should be done. He noted that the Churches had also been involved in drawing the Constitution. He was concerned that issues of constitutionality had not been at the forefront of all the submissions.
Mr Beukman commented that there was a distinction between a secular state and civil society. Clearly people were allowed to make lifestyle choices and the Church could certainly play a role, but such choices were not the domain of the State.
Mr Isaacs commented that when a law was passed it must be implemented. Implementation would be very difficult if those bound to enforce it were disenchanted.
Civil Union Bill: Centre for Applied Legal Studies (CALS), Wits University submission
Ms Beth Goldblatt, CALS Senior Researcher, stated that CALS had been involved in research and she personally had been a member of the Law Reform Commission dealing with the research and litigation on the Constitutional Court matters referred to earlier. However, she would be making her submissions on behalf of CALS, which was concerned with the less controversial issues of recognition of domestic partnerships. The Bill as drafted would not address the concerns nor remedy the issues of unconstitutionality touched on by the Court, but would crated further discrimination and stigma. CALS, in brief, suggested that the Marriage Act should be amended to open marriages to same sex couples. CALS believed that the judgment of Judge Sachs clearly set out the mandate to Parliament. Parliament was to avoid any remedy that appeared equal but in fact created differences. Segregation of the issues and types of unions would not address this and would create a problem. The differential treatment went contrary to enhancing dignity. CALS urged that whatever steps were taken by Parliament must take into account all the tenets of the judgment.
In regard to domestic partnerships the 2001 census had indicated that 2.3 million people over 14 years old were in a domestic partnership arrangement. This figure was likely to be an underestimate because there was still stigma attached to such relationships. South African society had undergone significant changes and a range of new family forms were a reality. The new laws must take full account of the plurality of families. The court cases and legislation over the past twelve years had sought increasingly to be inclusive and domestic partnerships must not be left out of developments. The purpose of family law was precisely to protect vulnerable families. The Court had found that women in relationships were vulnerable. CALS research showed that many women had stated that they simply could not persuade their domestic partners to marry them, although to all intents and purposes the women were treated as wives, bearing responsibility for running the home, cleaning and cooking, bearing and raising children and often contributing financially to the household as well. Usually the man would own the house and property, although when the relationship broke up the woman would be left without a home, and would often have the responsibility of continuing to raise the children. The apartheid legacy meant that many migrant workers had two partners and households, one in the rural and one in the urban area.
CALS believed that the provisions of the Civil Union Bill had been too hastily drafted and there were many technical problems. The principle of providing recognition was supported and CALS would suggest changes to the drafting so as to give proper effect to the principles.
CALS firstly was concerned that domestic partnerships could not co-exist with customary marriages, which was considered created inequality. The legislation must apply equally no matter what type of unions were contemplated. Various proposed amendments were more fully set out in the supporting documents. CALS endorsed the Women’s Legal Centre submissions in relation to the duties of support. In general the process had been positive and Parliament was urged to take a clear and principled stand.
The Chairperson asked why CALS had confined its research to only certain groups, and enquired whether the research had also looked at other communities.
Ms Goldblatt stated that CALS had chosen to confine its research to the African and coloured communities because statistics had already indicated that 75% of white and Indian people were formally married, whereas only 40% were married in African and coloured communities, where domestic partnerships were more prevalent. CALS was more concerned also with the needs of the poorer communities, which tended to focus on African and coloured people. Middle class people were more likely to be able to resolve issues through a lawyer. The study had examined rural areas, informal settlements, townships, villages and large cities. It was not just confined to migrant workers although their situation was more likely to lead to dual households.
Mr Likotsi stated that the new law should create equal opportunities for all, and he asked how CALS suggested this could be achieved. He mentioned that there had been a suggestion that marriage should simply be taken away.
Ms Goldblatt answered that if the existing partnerships were to be taken away this would result in equal disadvantage for all, and if the religious components of marriage were to be removed this would make everyone unhappy. It was necessary to create something that was favourable to all. New legislation must be created that gave same sex couples equal rights.
Mr Likotsi asked for an explanation of the references to lobola, and noted that the Civil Union Bill did not deal with this issue.
Ms Goldblatt replied that the reference to lobola related to the research conducted, where several people had given the inability to pay lobola as one of the reasons for not getting married. There was no suggestion that customary marriages should be replaced with domestic partnerships. However domestic partnerships would give protection to those who, for whatever reason, chose not to get married.
Mr S Swart stated that the Bill dealt both with same sex relationships and with domestic partnerships. He asked whether CALS recommended that the issues be separated into two separate pieces of legislation. He noted that there was no deadline proposed in regard to domestic partnerships.
Ms Goldblatt confirmed that CALS did recommend a splitting of the legislation. She commented that she believed there were limited prospects that an application for an extension of time would succeed. The Fourie matters had been decided on the heel of several Constitutional Court judgments that indicated that comprehensive legislation to address all issues was needed.
Ms Kalyan asked why CALS had recommended that if references to civil partnerships were deleted, then the title of the Bill should surely change. She asked what CALS would suggest in regard to clause 38(4).
Ms Goldblatt stated that CALS was of the view that the Court should be able to make orders around the property of domestic partnerships even if there was an existing civil marriage, because both the first and second households would have property and family. The existence of civil partnerships should not affect the rights of any of the parties. In regard to the title, she suggested that the Bill should probably be renamed “The Domestic Partnerships Bill”
Mr Beukman commented that Ms M O’Sullivan of the Women’s Legal Centre had raised the point of retrospective application of the Bill, and asked for CALS’s comment.
Ms Goldblatt stated that the retrospectivity had been raised because the Bill provided that parties would have a period of two years after the relationship had ended to approach the Court for an order in regard to the property. If the Bill were passed and a couple had ended the relationship a week later, then approached the Court, there was a suggestion that they would be asking the Court to rule upon matters taking place before passing of the Bill. CALS did not see that there was a problem, as it would interpret the Court’s decision as relating not to the pre-existing relationship, but rather to the issues at the point of termination.
Mr Sikakane asked whether CALS suggested that domestic partnerships should be equated with marriage, as surely the benefits were the important issue and appeared to have been covered.
Ms Goldblatt did not suggest that domestic partnerships and marriage must be equated fully. By legislating separately and creating a dual system the drafters of the Bill had not created the identical consequences of marriage, but had rather created a separate institution for a different kind of family life.
Ms Goldblatt commented on an earlier remark by the Chairperson that domestic partnerships could result from virtually any relationship. She stated that Clause 38(2) in fact laid down the criteria for deciding whether a domestic partnership existed, and these would include the length of time the parties had been together, and the contributions made by the parties, to distinguish a serious and lasting relationship from one that was less committed.
The Chairperson commented that the Committee would think carefully about separating the issues.
Civil Union Bill: Joint Working Group, OUT and Well-Being submission
Mr Sebastian Matroos, Mr David Bilchitz and Ms Fikile Vilakazi, all representing the Joint Working Group, gave a joint presentation on various issues identified by the Joint Working Group (JWG), which represented 17 member organisations with a national reach.
It was clear that people had been and still were being oppressed because of their sexual orientation. It was clear from apartheid that separate did not mean equal. The Constitution was founded upon the key values of dignity, equality and advancement of human rights. JWG regarded the Civil Union Bill as objectionable because it entrenched inequality through the notion of separate but equal rights. In fact the rights were not equal and full recognition was not accorded by the Bill to same sex relationships. Parliament must therefore decide whether to advance to an era of respecting human dignity and equal freedom or rejecting constitutional equality by perpetuating the discrimination, dehumanising and stigma.
The question was not whether individuals believed in same sex marriages, or regarded them as contrary to religious or African tradition principles. This was not a private but a public issue as the Constitution had demanded the enshrinement of dignity, equality and freedom. Private views and public morality must be separated. Some of the submissions made had advocated the separation of religion and State. JWG believed that some of the interpretations of the Fourie judgment were not correct.
The Bill defined civil partnerships as adult unions and although it was intended that consequences similar to a heterosexual marriage be created the Bill had actually created a separate institution that violated the values of the Constitution. The Constitution prohibited unfair discrimination on the grounds of race, sex, gender and sexual orientation. Different orientation was no justification for differential treatment. There were no material differences between heterosexual and same sex relationships; both could love, have children and bring them up in an acceptable family unit, and needed protection. There was no relevant distinction that would justify a separate legal structure and any differences would perpetuate rather than eliminate discrimination. Civil partnerships were not equal to marriage in that they did no carry the same reputation, influence, standing in the community, prestige, rituals and spiritual and religious meaning. The only way to remedy the differences would be to allow same sex couples to be included unequivocally in the institution of marriage. JWG had made suggestions for amendments and believed marriage must be allowed to evolve in the light of constitutional values. The placing of same sex marriages on a separate register amounted to segregation and stigmatisation. Ubuntu was a relational value which recognised that a person would receive full respect by being permitted to relate fully to others in a community. This would only be achieved if full and identical recognition were given. To deny the choice to many amounted to negating their rights. The fact that some groups might be offended by certain issues did not mean that they should have the right to prevent the issues, and this principle had been clearly outlined by the Constitutional Court judgments. The Bill was regarded as unconstitutional and it was noted that the State Law Advisers had refused to certify the Bill.
JWG therefore recommended that the current wording of Chapter 2 be deleted altogether. The Civil Union Bill should be renamed the Domestic Partnerships Bill and should provide for domestic partnerships for both single sex and heterosexual couples. A Marriage Act Amendment Bill should be drafted as a separate Bill to allow single sex couples to marry in terms of the common law and the Act. JWG had understood that the Department of Home Affairs had already drafted and presented such a Bill. Both the tangible and intangible benefits of marriage should be able to be enjoyed by any person who chose to marry.
JWG handed a petition to the Chairperson.
The Chairperson asked the Department of Home Affairs to give some information on the Bill referred to. Mr Beukman reiterated this concern.
Ms Fikile Vilakazi noted that it had been mentioned as having been presented to Cabinet on 1 August and reference to it was contained in the Parliamentary Monitoring Group website.
Adv Erasmus stated that some drafts had been prepared along the lines mentioned, but these were never presented to the Portfolio Committee. A presentation had been made to Cabinet and the Ministers had looked into certain issues. A Bill was never presented to Cabinet and was therefore neither approved for referral to parliament nor considered.
Mr Sikakane confirmed that all Committee Members fully supported equality, dignity and freedom. He questioned why, if the Civil Union Bill gave the right to marry, academic issues were being raised.
Ms Kalyan asked the delegation to comment upon the South African Law Commission’s recommendation that conventional and traditional or customary marriages be dealt with in two separate pieces of legislation. Secondly she asked for JWG’s views on whether all marriages should be regarded as civil unions.
Mr Matroos stated that the Bill did not provide for anything that equated to the full package of rights of marriage. Creation of a separate institution did not give what JWG regarded as full rights. Customary marriages were catered for in separate legislation because they represented a different type of institution for a specific sector of society. Same sex marriages did not differ in any material respects that would justify separate legislation. Issues of choice were also very different. Those choosing to enter into a customary union could choose to do so, and the relationship thus created was given the term of “marriage”. The Civil Union Bill did not offer the right to “marry” but only to enter into a domestic partnership.
Ms Vilakazi stated that her parents had been discriminated against and offered “separate development” because of their race. She urged that similar discrimination should not be permitted for any reason. She felt this would be an insult to the history of the country.
Mr Bilchitz added that the Court had realised that marriage also involved intangibles and social status. Lack of choice would entrench the prejudices of the past.
In regard to the suggestion that marriage be done away with, the Court said that to deny access to civil marriage to all, thereby practising exclusion for all, would cause resentment. There should be equal celebration, not equal marginalisation. Same sex couples wished not to destroy the concept of marriage, but to participate in it fully.
Mr Likotsi asked whether JWG would be happy with an amendment that simply removed the wording of Chapter 2 and amended the Bill to be described as the Domestic Partnerships Bill.
Mr Bilchitz stated that JWG would not be happy with this amendment alone. An exclusion of Chapter 2, plus an amendment to the Marriage Act would be accepted. There was no particular hurry to pass the Bill. Whatever parliament did must accord with the values of the Constitution. JWG was happy to be part of the process and its comments should not be perceived as negative criticism but positive suggestions for change. JWG did not believe that an amendment to the Marriage Act would pose insurmountable legal problems. Any shortcomings in the law in fact applied already to heterosexual couples who were raising children other than their own. One marriage law should be created that applied to all, and in the process an amendment Bill could correct many of the current deficiencies.
Ms Mary Hames from the University of the Western Cape’s Gender Equality Unit and Dr John Gosling a Psychiatrist presented the TRIANGLE submission. The organisation felt that the Marriage Act should be amended to make provision for heterosexual as well as same sex couples.
The Chairperson asked the Triangle Project’s opinion of the Civil Union Bill and whether the organisation felt that the initiative Government had taken to address the Constitutional Court’s ruling was appropriate.
Ms Mary Hames responded that the Triangle Project believed that the Civil Union Bill was an unequal initiative. The Constitution stated that everyone had the right to equity and equality; the Civil Union Bill fundamentally opposed this. Nothing less than a Marriage Act that included all citizens, irrespective of their sexual orientation, would be acceptable.
The Chairperson pointed out that issues around children had been raised repeatedly throughout the public participation proceedings. Referring to the decrease in population growth in countries that allowed same sex couples to adopt, he asked how South Africa’s population growth would be affected should same sex adoptions be allowed.
Dr Gosling agreed with Ms Hames that only an amendment of the Marriage Act would be acceptable. He said that reasons for the decline in population growth in Europe were complex and could not merely be ascribed to the impact of same sex unions. Many children in South African were in need of care and extensive studies revealed that same sex couples were as capable of providing excellent parenting to children as heterosexual couples were. He was in favour of the equal Marriages Act as anything less would always be a lesser alternative exposing children to possible ridicule and giving them second class status.
Mr F Beukman (ANC) said that the Committee had during the public hearing process listened to many submissions and would have to come to a decision that would take into account all the views that had been he wondered whether there was anything about the Civil Union Bill that met with Triangle’s satisfaction.
Dr Gosling responded that he was “100% unhappy with the Bill.”
Mr M Sikakane (ANC) noted that the Triangle submission denied the commonly held belief that homosexuality was a choice. He requested the presenters to elaborate on this aspect because it was the cornerstone of why people were opposed to homosexuality and that sometimes people need to be educated so that they could have a better understanding.
Dr Gosling pointed out that no one would choose a lifestyle that guaranteed alienation from family and friends, condemnation by most religions, ridicule by peers, problems at school etc. There was no question that homosexuality was not a choice but something inherent in the fundamental nature and that it formed part of the spectrum of human sexuality. He said that the member had raised an excellent point and that an enormous amount of education was required to help people to understand - tolerance developed through education and understanding.
Mr W Skhosana (ANC) noted that Triangle had indicated that there was absolutely no difference between homosexual couples’ and heterosexual couples’ ability to raise children. He was concerned about a child’s ability to understand the prejudice he or she might encounter having homosexual parents if adults could not even understand it. He asked whether there was any distinction between girl child raised by a gay couple and girl child raised by a heterosexual couple. The Chairperson added that concerns around how two men would raise a girl-child had been raised often during the public hearings.
Ms Hames said that these questions were stereotypical and reflected a patriarchal approach to parenthood. South African society consisted of many different kinds of households. She said that at the University of the Western Cape many of the students had been raised by girl-children or their grandmothers. People also got divorced and some were now raising the children of previous marriages in same sex households. She said that considering that households were constituted in different ways in ny case she did not predict that there would be any problems.
Dr Gosling added that he thought that the questions raised were extremely important. He said that children did not come with an instruction manual attached; parenting skills had to be acquired and were not necessarily inherent. Assistance in terms of basic parenting skills was provided to both same sex and hetero sex parents. It would be naïve to imagine that there would be no difficulties as far as raising a girl-child in a gay household, but these difficulties could be overcome. Usually people in these situations did have an extended family to which they could turn for guidance and support and it was very rare for a couple to raise a child in isolation. The more one understood of issues related to child rearing the better equipped one was to offer intervention (especially around the time of birth and shortly thereafter) to help parents to interact with children and to form appropriate bonds. This applied to all parents irrespective of their sexual orientation.
Mr Beukman wondered whether there was anything in the Bill that Triangle thought could serve as a terms of reference in further discussions.
Dr Gosling replied that since the law was not his area of expertise he could not comment in a legalistic fashion. He could only approach the issue from the perspective of what would be psychologically important i.e. not to separate the status of the two groups of people as this would lead to stigmatisation and marginalization. His position was that there should be equal marriage legislation.
A member wondered what Triangle meant by the statement that children of same sex parents were being penalised because they were being deprived of State benefits (p2 of submission). To his knowledge all children were eligible for grants.
Dr Gosling said that after consulting with some legal colleagues he had removed that section from his presentation. That was an incorrect statement. There were no particular state benefits afforded to children of heterosexual couples but they were they enjoyed better social status and suffered less stigmatisation.
The Chairperson said that Dr Gosling might be invited back to discuss issues around children and the legislation in greater detail. These issues came out very strongly during the hearings. The Committee had met social workers who said that Members should be led by their conscious in this regard.
Dr Gosling said that he would be more than happy to assist. Since same sex couples have been raising children for several decades now there was a big body of research available. Detailed follow up studies have been done to show that children from same sex couples developed similarly to the ones of heterosexual couples. He reiterated that they did experience problems such as prejudice from fellow learners at school. Widespread ignorance and associated problems needed to be addressed.
Mr Skhosana was pleased that Triangle acknowledged that there were some problems related to single sex parents raising children. He mentioned that there had recently been a case in which a child could not be forced to refer to a woman as ‘father’.
Ms Hames did much work around violence against women and children. Statistically it had been proven that it was in heterosexual relationships and households that instances of violence, incest, etc were prevalent. The UWC’s child and youth centre did much research into the rights of children. She felt that raising isolated incidents because they were sensational was problematic. She agreed that there were challenges in raising children but these applied to homo- as well as heterosexual households.
Dr Gosling reiterated that there were challenges. In the case that had been cited the couple needed help in not insisting that the child addressed the parent in a specific manner. He added that same sex relationships would cover the entire spectrum to very warm and caring to very problematic; relationships were the same whether they were homo or heterosexual. When people encountered problems help was available. Much education was still needed and he hoped that more community centres would be established in communities so that counseling and assistance with parenting could be provided.
South African Pagan Rights Association (SAPRA) submission
Mr Lukas Meyer and Mr Donovan Brown made the submission. They had no strong objections to the Civil Union Bill but would prefer if the Marriage Act were amended. The main concern related to whether their priests and priestesses could be allowed to perform marriage ceremonies that would be considered legal.
Ms S Kalyan (DA) wondered what the South African Pagan Rights Association’s beliefs and mandate were.
Mr Lukas Meyer explained that paganism was nature based and did not follow any of the Christian doctrines. Followers believed that nature was supreme and venerated it as the basis of its belief system. The religion predated Christianity by approximately 10 000 years.
Ms Kalyan noted that the South African Pagan Rights Association (SAPRA) had marriage officers in their organization but that they were not recognized. She wondered whether freedom of conscious was an area of concern for them.
Mr Meyer explained that there were people within the organization that were entitled to perform marriage ceremonies but were not legally allowed to. Their marriage ceremonies were called hand-fastings and if a believer wanted to get hand-fasted he or she had to have a religious ceremony as well as a legal process before the magistrates’ court. This was discriminatory. He pleaded that since Marriage Act was under discussion pagan priests and priestesses should also be allowed to perform marriage ceremonies and that such marriages should be considered legal pagan followers should be allowed to get married to.
The Chairperson wondered whether the religion allowed for both homo- and heterosexual marriages. Mr Meyer responded that both homosexual and heterosexual hand-fastings occurred. The organisation did not discriminate against anybody.
Ms Kalyan wondered how the SAPRA felt about the section of the Civil Union Bill that related to domestic partnerships.
Mr Meyer responded that while they supported the section, they still felt that the Constitutional Court demanded that the Marriage Act be revised. They did not recall that the judgment called for a new law to be made. They would prefer if the Marriage Act were amended.
The Chairperson requested clarity on how pagan marriages were performed.
Mr Meyer explained that pagan priestesses and priests performed marriage ceremonies. These ceremonies had been taken place for a long time. He reiterated that they married all people because discrimination went against their religious principles. What was problematic was that they had to perform their own ceremonies only to then perform another ceremony so that the union could be considered legal. More often than not pagans were required to make promises and oaths before a god which they did not recognize during these second ceremonies. When he got married he had to do so in the Methodist church because it was the only one that would remove the word ‘god’ from the marriage formula.
The Chairperson wondered how big the organization was.
Mr Meyer explained that the SAPRA represented various pagan denominations and had 10 000- 20 000 members. Exact numbers were not available because the census classified the religion as ‘other’. The organisation had successfully interacted with the Department of Home Affairs and the new census would specify all the religions.
The Chairperson wondered whether members had applied to be recognised as marriage officers.
Mr Meyer responded that they had on numerous occasions applied to be recognised as marriage officers. Some pagans went abroad where they completed courses and then got certified. They then returned to South Africa.
The Chairperson said that when the Committee considered the entire marriage regime SAPRA might be invited to give input again. Currently a lot of small pieces of legislation were being created. It would be necessary to at some point consider the entire marriage regime.
Upon the Chairperson’s request Mr Meyer said that members were more than welcome to come and observe pagan religious ceremonies.
Christian Action Network submission
The Christian Action Network was represented by its National Co-ordinator, Ms Taryn Hodgson and executive member Mr Charl van Wyk who argued for a constitutional amendment.
Mr Beukman wondered how the Christian Action Network (CAN) felt about the Bill itself.
Mr Charl van Wyk was of the opinion that the Bill aimed to give specific privileges to people who acted in a certain way and felt that homosexuality was not a benign characteristic such as disability or race. The CAN’s basic argument was that one could not give special privileges to people just because they acted in a specific way when it came to sexual issues. He pointed out many other people with other specific sexual preferences would still be left out and wondered who would decide upon who qualified for such privileges. He felt that discrimination was inevitable but the question has to be whether it was fair or not.
Mr Sikakane wondered what the CAN meant when it said that homosexuals were infringing upon their rights. This statement had been made by more than one presenter and he could not quite understand it. He emphasised that everybody had rights and the right to defend them. He wondered why the CAN spoke as though only they were entitled to certain rights.
Mr van Wyk said that CAN saw marriage from a Christian perspective. It was an institution by God. God was autonomous and instituted marriage between a man and a woman. They felt that anything outside of that pure definition of marriage required special privileges that certain people demanded because they acted in a certain way. It was not the norm or what God had ordained.
Ms Kalyan raised a number of questions related to the research quoted in CAN’s submission. She wondered whether the Dutch example which spoke of the number of children borne out of wedlock increasing in that country, included children borne to heterosexual couples, teenagers or same sex couples. She could not see the logic of providing such a broad category. She wondered whether they had intended to show that since that society was more permissive there was an increase in children borne out of wedlock.
Ms Kalyan questioned the truth of CAN’s research which reflected that heterosexual marriages were the best environment in which to raise children. She said that by virtue of its history, South Africa did not have a history of having traditional heterosexual families.
Ms Kalyan also noted that the research stating that homosexual relationships were more violent than traditional marriages referred to US figures. She pointed out that South African research indicated that violence in heterosexual marriages was on the increase and that South Africa was one of the most abusive societies.
Ms Taryn Hodgson agreed that the statistics were quite broad. She felt however that they illustrated that when marriage was redefined in the law it influenced how people perceived it. Marriage became seen as less and less important and necessary.
Ms Kalyan wondered whether CAN failed to acknowledge the Constitution as a way by which to live their lives. She wondered what their view on the Constitutional Court ruling which said that all people irrespective of sexual orientation should enjoy equal rights.
Mr Van Wyk responded that someone had already mentioned that the Constitution was not cast in stone. Africa has had about 500 Constitutions in 30 years. The Constitution was a man made document that could be changed. Africa has set a precedent of as far as changing constitutions was concerned, and South Africa could change theirs. The fact was that the South African constitution was not a document that would remain the same forever.
Ms N Mathibela (ANC) asked the CAN presenters to explain what they meant when they implied that granting equal rights to homosexuals would mean that one was discriminating against people who preferred children.
Mr Van Wyk said that he sought to indicate that discrimination was inevitable and that it happened any way. People were not allowed to marry their brothers and sisters. This was a form of discrimination. Adults could not marry minors - this too was discrimination on the basis of age. Certain values and qualifications had been laid down and there would always be discrimination. The question that should be asked was whether same sex marriages were a legitimate issue to be discriminated against.
Ms Mathibela recalled that the previous constitution had only nine sections dealing with children’s rights. Laws prohibiting marriage to minors were there to protect children.
Mr van Wyk agreed that there should be criteria for marriage and he too was very much against adults marrying minors. He said that this in itself was a form of (acceptable) discrimination on the basis of age.
Mr Skhosana noted that the CAN indicated that the longest homosexual relationship lasted for 37 years. He wondered whether they had information related to the divorce rate amongst same sex couples. Ms Hodgson responded that no such research had been done yet but that it would be a viable are for research.
Marriage Alliance submission
The Marriage Alliance was represented by the General Secretary of the Evangelical Alliance of South Africa, Rev Moss Ntlha, Ms Naomi Boshoff (General Administration/Communications) and a member, Rev Japie de la Porte. They felt that an amendment to the Constitution would be the most appropriate course of action.
Mr Beukman noted that the Marriage Alliance raised concerns around the process leading up to the provincial public hearings. He wondered whether the Marriage Alliance felt satisfied that it had adequately participated in the process.
Rev Ntlha said that some organisations had experienced difficulty in attending the hearings. The Marriage Alliance almost had to do the Committee’s work as far as determining the details of the venues and ensuring that organizations received them. He said that while the Committee had made a good attempt the process had been flawed and could have been much more effective. He felt that while the Marriage Alliance had had the opportunity to make a meaningful contribution many other smaller organizations had experienced difficulties. The majority of people had not received a “fair deal”.
Mr Sikakane noted that the Marriage Alliance was in favour of an amendment to the Constitution. He wondered whether the organisation sympathised with the dilemma the Committee found itself in – the Committee could do nothing other than abide by the Constitutional Court ruling.
Rev Ntlha realized that the Committee was faced with a difficult task. He felt that an amendment to the Constitution was the best option available: it would please the Constitutional Court in that it would then be able to continue functioning in a manner that provided clarity on issues, Parliament would then be faced with a doable task without having to please everyone in their decision and even the gay and lesbian community would be pleased since they would then be living in a country in which everyone was clear about what was wrong and what was right.
Ms Kalyan said that to her understanding the Marriage Alliance was opposed to civil unions but would be satisfied with the domestic partnership clause. She added that contrary to what the organisation’s submission stated the Bill had been referred to the House of Traditional Leaders who were now deliberating on it.
The Chairperson wondered how many hearings would have satisfied the organisation that sufficient public consultation had taken place. He could not recall that nay public hearings were cancelled on very short notice. The issue had been raised the day before as well. It appeared as though there was no appreciation for the energy and effort the Committee had put into the public hearings. The Committee had done much in a very short space of time. He felt that the Marriage Alliance’s concern, which might not reflect the truth, would be placed on record and therefore the Committee needed to rectify it.
Ms Boshoff said that while public hearings were a very good practice in the case of the Civil Union Bill there had been massive time constraints which hampered large sections of the public’s participation. The Marriage Alliance questioned the value of the process because there could have been greater participation. She added that the organisation acknowledged the effort the Committee and its support staff had made and felt that they had been heard and were given the opportunity to participate. They understood that the Committee was under much pressure and had done the best it could.
Rev de la Porte added that one of the Committee members had stated that the Committee had very little choice but to abide by the Constitutional Court’s ruling. He said that it would be a sad day if the Committee had gone through the entire process simply to disregard the views it had heard.
The Chairperson said that everyone would agree that there had been time constraints. He felt however that what the Marriage Alliance was reporting was not a true reflection of what had happened. The Polokwane event had been poorly organised but after corrective measures had been taken, the event took place and was successful. The Committee had embarked on the provincial hearings despite the fact that at the time of their departure from Cape Town some venues had not been finalized. The Committee had been very organized and that lack of organisation should not impact on the Constitutional Court’s ruling. He warned against some organisations claiming that Parliament had failed the process due to lack of organisation. He said that whatever was put before Parliament should be a true reflection and that there were certain rules and protocols that needed to be observed. He appealed to other presenters not to include unfounded allegations in their reports.
He said that the belief that there was nothing the Committee could do in the face of the ruling was incorrect. The Committee was tasked with making the law and taking the views of the public into account when doing so. He emphasised that no political party could influence the process – the Bill was before the Committee and everyone’s views would be taken into account. He urged contributors to trust the members of Parliament would do what they thought was right for the country.
De Vos and Barnard submission
Prof Pierre de Vos an academic at the University of the Western Cape and a constitutional lawyer, and Dr Jaco Barnard of the University of Cape Town made a submission in their private capacity. They argued that the Civil Union Bill unless amended would be up for constitutional challenge should it be passed. They felt that the proposed legislation did not meet the Constitutional Court’s judgment and that only legislation that guaranteed equal rights would be acceptable. They proposed that the Marriage Act be amended.
The Chairperson wondered in what way the presenters thought the Civil Union Bill was flawed.
Prof Pierre de Vos responded that the judgment did not give Parliament much leeway. It required that same sex marriages should have exactly the same status, the same rights as heterosexual marriages and that the law should be as generous with same sex couples as it was with heterosexual couples. He said that separate but equal legislation would never be acceptable because as everyone who had lived in South Africa during Apartheid could attest, separate could never be equal. He felt that the Civil Union Bill could never comply with the Constitutional Court judgment. He was very certain that should the Bill be passed in its present form, Judge Sachs would not find it in compliance with his judgment.
The Chairperson wondered whether the presenters could make any suggestions that could improve the Bill.
Prof de Vos said that his personal opinion was that the Bill could not be improved. As a constitutional lawyer he felt that if Chapter 2 were changed and the civil partnership was renamed “marriage”, if the definition of marriage was changed to include same sex couples and if it allowed for marriage officers that were not necessarily religious it could possibly pass constitutional muster. He added that though these amendments would be sufficient he did not think them to be elegant solutions. The amendments he had suggested would be necessary to avoid a constitutional challenge.
The Chairperson said that the hearings were not about constitutionality. They were considering what could be done to have the Civil Union Bill meet the Constitutional Court’s requirement.
Dr Jaco Barnard said that p30 of their submission contained a full recommendation on what exactly they believed would be the proper correction of the Bill. They also suggested that the gist of the amendments to the Civil Union Bill would involve the deletion of Chapter 2 and the renaming if the Bill as the Domestic Partnership Bill. They also suggested that the Committee should either draw up a Marriage Act Amendment Bill which would make certain amendments to the Marriage Act or make no amendment to the Marriage Act and allow the time to run out so that the court’s decision would take effect.
Prof De Vos said that during the ceremony one was allowed to call the union either a marriage or a partnership. After the ceremony however it was referred to as a civil partnership. The word ‘marriage’ had special significance in our society and culture. The judgment made clear that denying same sex couples access to that word meant denying them equality. While allowing the use of the word ‘marriage’ in the ceremony was a clever finesse it unfortunately did not comply with the judgment. He was also concerned about the Chairperson’s earlier comment that he did not take into account constitutionality - the Constitutional Court had spoken and the Committee’s constitutional responsibility was to try and comply with its ruling. The Committee could not ignore the ruling and simply draw up another Bill that they knew would be considered unconstitutional.
Dr Barnard said that it appeared that the provisions of the Civil Union Bill allowed for the same rights but this was not the case. Marriage was probably one of the most important institutions within civil society today. He thought it a compliment to those who wanted to conserve marriage that homosexual people also wanted to be included.
The Chairperson wondered why homosexuals wanted to be part of an institution that, if reports were to be believed, was already corrupt.
Prof de Vos said that like heterosexuals, not every homosexual person wanted to get married. There were two reasons why people wanted to get married. One related to the rights married individuals enjoyed. The second related to the emotional significance of marriage – pictures on the mantel piece, the memories that go with it and it affirmed you as a member of the society. Many people chose not to get married while for others marriage was a profoundly affirming institution.
Mr Beukman said that in their submission they made mention of the Massachusetts case. He wondered whether in foreign jurisdictions there was legislation that legislated marriage and civil unions separately.
Dr Barnard said that the Massachusetts case mentioned in the submission was uncannily similar to the legislation under consideration. The Massachusetts Supreme Judicial Court ruled against civil partnership provisions.
Prof de Vos said that there were some jurisdictions that had civil partnership laws that covered both same sex couples and opposite sex couples (France, Germany, the United Kingdom etc). Britain did not have a constitution and the judiciary did not enjoy supremacy. There Parliament was supreme and they had no formal Bill of Rights. South Africa was one of the few countries in the world whose Bill of Rights included a clause that said there should be no discrimination on the basis of sexual orientation and the Constitutional Court had no difficulty in deciding the case. He added that one either discriminated against someone or one did not; there was no way that one could “half” discriminate.
Dutch Reformed Church Submission
Dr Gerber (General Secretary General Synod) and Dr Ben Du Toit (Parliamentary Desk Genera Synod) represented the Dutch Reformed Church. They called for the judgment to be allowed to take effect as an interim measure. Issues could then be discussed more thoroughly.
The Chairperson wondered why the Dutch Reformed Church suggested that the Constitutional Court judgment should be accepted as an interim measure whereby the Marriage Act would be temporarily amended.
Dr Gerber did not feel that the Civil Union Bill had been adequately thought through. Allowing the ruling to take effect by 1 December would be a measure to get out of the current impasse. The DRC pleaded for a process that would accommodate everything that was on table and would reframe how one thought about marriage and constitutional rights. He thought not only marriage but also the Constitution and the Bill of Rights needed to be discussed. The Church would fight for what was in the Constitution as that was the framework in which they could give expression to family and marriage as they saw it. They pleaded for more time and not to have a bill approved that would, in a year’s time, have to be revised.
He added that the Civil Union Bill before the Committee contained much discriminatory aspects. He candidly stated that the Bill might even reflect in a discriminatory way upon the DRC and other Churches. The DRC and how it viewed marriage and family, as well as its pastors might one day due to ill thought through legislation discover themselves discriminated against.
Ms Mathibela wondered whether the presenter could clarify its opinion of customary marriages.
Dr du Toit responded that the DRC could not understand why there was a separate act for customary marriages. They felt that a union between more than two persons was contradictory to the Marriage Act, which defined marriage as a union between one man and one woman to the exclusion of any other. Because of this contradiction they felt that the whole issue should be revisited and included in one act. They were not debating the contents of the Customary Marriage Act but its status.
Mr Morwamoche asked whether the presenters were speaking on behalf of the entire Dutch Reformed Church. Dr Gerber responded that the submission had been cleared with the Dutch Reformed Church and was within the mandate of its parliamentary desk.
Christian View Network Submission
Mr Philip Rosenthal represented the Christian View Network. He voiced his opposition to the Constitutional provision guaranteeing equal rights irrespective of sexual orientation and called for a constitutional amendment.
Responding to some of the questions that had earlier been asked Mr Rosenthal of the Christian View Network said that he had been involved in lobbying at the time that the Constitution was drafted. He reminded members that there were huge objections to the sexual orientation clause because people predicted a huge range of associated problems that would follow it. No one at the time would have predicted that it would go as far same sex marriages. There had been no consensus around the issue. Prof Kadar Asmal had admitted that the decision to include sexual orientation in the Constitution was made by himself and Judge Albie Sachs in a kitchen in Dublin while they were still in exile. The inclusion was thus not as a result of a legal process in South Africa or of lobbying and was not really democratically taken.
For him marriage was sacred and the Constitution was not. There was much good in the Constitution and he agreed with a Member of Parliament who had said that if there was something wrong with the Constitution it should be fixed. The CVN thus supported a constitutional amendment.
Responding to Mr Beukman’s earlier question Mr Rosenthal denied that South Africa was a secular state. At the time the Constitution was written Mr Cyril Ramaphosa had been challenged on exactly this point and had assured lobbyists, in print, that South Africa would not be a secular state. Even the Constitution in its preamble referred to God. He believed that South Africa was a religiously tolerant state.
He felt that it was impossible to divorce belief and law. All laws enforced some form of belief or morality. The only question related to whose belief to enforce. It was discriminatory and unconstitutional to exclude a belief simply because it was of religious origin. This was discriminatory and unconstitutional. It was not religious communities opposed the legislation. He said Human Science Research Council polls showed that only 7% of South Africans believed that same sex relationships were morally acceptable. The debate thus transcended religion.
Mr Rosenthal said that unfortunately there was no acceptable compromise as far as complying with the judgment was concerned.. Parliament was forced to make a choice between what the Constitutional Court said or passing a constitutional amendment. He supported the latter option.
Mr Rosenthal acknowledged that same sex adoptions were legal but this did not mean that the legislation could not be overturned especially if a constitutional court amendment was made. He had been contacted by social workers did not feel that they could in fair conscious facilitate such adoptions because they believed that children should not grow up in dysfunctional families.
He denied that there was a long history of homosexuality in African tradition. Although there was always a little bit of homosexuality within society it had, never on a substantial scale, been accepted in African culture.
He could not see how it could possibly be true that 10-12% of South African citizens were homosexual when only 7% of South Africans agreed that same sex relationships were morally acceptable. He felt that the real figure was probably far less than 1%.
Mr Rosenthal discarded the notion that all mental health professionals agreed that homosexuality was not a mental disorder and said that the change in the policy of the American Psychological Association was made in response to intimidation by militant homosexual groups.
He said that there were many people who had “moved away” from homosexuality which showed that it was a choice. He acknowledged that it was a difficult choice to make. There were many psychologists and organisations who worked to assist people in making the change.
He said that most common cause of homosexuality was due to a dysfunctional bond with parents of the same sex. Very often such people look for that intimacy and love with someone of the same sex who could give them what the parent failed to give them. Often this resulted in a homosexual relationship.
He would supply the Committee with a paper that proved that the children of same sex parents did not do as well as other children.
Mr Beukman said that the only thing the presenter appeared to agree with was that the hearings were flawed. The Committee disagreed. Considering that he’s organisation had had ample time to prepare and participate in the hearings he wondered how Mr Rosenthal could have objections to the process.
Mr Rosenthal said that he affirmed the huge effort that had gone into the consultation process. He did not think that his organisation had experienced any problems. He had however received many letters from organisations who had wanted to present at provincial hearings but did not have an opportunity to do so due to late advertising.
Mr Skhosana wondered how long an extension the Committee should request so that it could find an amicable solution.
Mr Rosenthal felt that many years would be needed to discuss the matter properly. He felt that a two year period would be a reasonable request.
Mr Skhosana wondered how old the study claiming that children of same sex couples were worse off than children of heterosexual couples was. Mr Rosenthal said that he read the study in April 2005 and would provide it to the Committee.
Ms Mathibela requested Mr Rosenthal to give greater clarity on his statements around customary marriages. Customary marriages appear to be interpreted as polygamy. She clarified that once lobola had been paid one was considered married.
Mr Rosenthal said that he had not raised the issue of polygamy. His concerns related to the manner in which the legislation referred to customary marriages as though it enjoyed a similar status as a registered or unregistered partnership. He recognized that customary marriages were real marriages but he did not recognise a registered partnership as anything like a marriage.
Mr M Sibande (ANC) said that the presenter had raised some issues that needed to be addressed. He strongly disagreed that people had not been given enough time to respond because in some provinces people had arrived in large numbers. Going to the various provinces was assisted people who could not afford to come to Cape Town to make their input.
Mr Rosenthal said that while he commended the Committee for the actions that had been taken he felt that they were given unreasonable time frames. The normal time frame for advertising for pubic participation was 10 days and in this case it had, in many of the locations give less than 24 hours.
Mr Sibande also felt that statements made about Judge Albie Sachs and Prof Kadar Asmal was unacceptable because they were not present to respond.
Mr Rosenthal responded that he had heard the statement by Kadar Asmal himself. It was made while Prof Asmal was Minister of Environment Affairs.
He knew that Albie Sachs had been one of the main architects of the Constitution and had not been interested in removing the sexual orientation clause when asked to do so. Mr Rosenthal felt that an inordinate of power had been wielded by one person and felt that no one could deny that.
The Chairperson asked Mr Rosenthal whether he was saying that the clause of the Constitution dealing with non discrimination along sexual orientation lines came from one person only and whether he was of the opinion that the will of the people had not been addressed in it.
Mr Rosenthal felt that there were many good things within the Constitution. At the time that it was written he had submitted a fifty page submission to the Constitutional Assembly raising his concerns. He felt that an inordinate amount of power had been wielded by a few people.
The Chairperson said that Mr Rosenthal had made a very strong statement against former Minister of Water Affairs and Forestry, Prof Kadar Asmal. He wondered whether Prof Asmal had made the statement formally.
Mr Rosenthal said that the statement had been made formally about ten years earlier at a gathering of about 100 people.
The Chairperson pointed out that at that time South Africa had only an interim Constitution.
Mr Rosenthal said that he would have to go through his archives to determine the correct details of the meeting he was referring to. He agreed that that might have related to the interim Constitution.
Mr Sibande said that Mr Rosenthal had prematurely stated that most of the majority party’s members supported the Bill. He pointed out that the ANC had not yet declared itself.
Mr Sibande requested Mr Rosenthal to elaborate on the statistics he had quoted on his presentation. Mr Rosenthal would forward the academic paper containing the statistics to the Committee.
Defence for Marriage
Rev Mostert, a DRC Minister, made a submission in his personal capacity and in support of marriage. He felt that a constitutional amendment would be appropriate and feared that in South Africa as was the case in some other countries the more liberal views would enjoy preference.
The Chairperson said that Section 9 of Chapter 2 of the Constitution which was the supreme law of the country dealt with matters that could be aligned with the Ten Commandments in the Bible.
Rev Mostert, a DRC Minister who was making a submission in his personal capacity and in support of marriage, said that while he liked the Constitution very much he had to agree with many of the previous speakers that there were aspects that he could not agree with. He believed that while the Constitution should govern all other laws in the country law makers and law givers should respect it at all times. Nevertheless he believed that there comes a time in every Christian’s life when he or she had to decide whether to obey God or the Constitution. A Christian would have to obey God irrespective of whether it brought him or her at loggerheads with the Constitution.
The Chairperson said that the Constitutional Court’s ruling required lawmakers to find a way of accommodating same sex couples who wanted to get married. Homosexuality dated back to biblical times and he wondered how one dealt with homosexuality in a Christian context.
Rev Mostert said that he did not believe that one could build a position on any issue based on a few texts from the Bible. Marriage was an institution of God and brought man and woman together making them His image bearers.
Mr Skhosana said that he realized that the Bill was controversial and felt that people should have a clear understanding of where the Committee came from. He thought that the Speaker’s comment that South Africa was not as focused as many other countries who had dealt with the situation was inappropriate. He wondered whether he was implying that those countries who allowed same sex marriages were also less focused. He thought that the submission had racist undertones.
Rev Mostert appreciated the question and apologized sincerely if that was the impression he had created. He had not intended to sound patronizing but intended to point out that the Committee needed assistance from advisors since they could not possibly know everything related to the matter at hand. The more liberal material was well known and he thought it necessary to bring some of the lesser known material to the Committee’s attention. He said that he had been deeply impressed by the care with which the matter had addressed the matter but English being his second language he might have created the wrong impression. He had been raised not to be a racist.
Mr Swart (ACDP) knew that each member had the right to make their statement but felt that they needed to take care not to accuse presenters. He said that the dilemma they were faced with was referred to in the Christian education case in which the judge found that the State should wherever reasonably possible seek to avoid putting believers through the extremely painful and burdensome choice of either being true to their faith or respectful of the law. He felt that this adequately illustrated the point the Committee found itself at.
[PMG did not monitor the meeting from 7pm onwards. The Human Life International, the South African Council of Churches, Couples for Christ and the Consultation of Christian Churches made submissions. Following these submissions Business Unity South Africa (BUSA) made a submission on the Film and Publications Amendment Bill. See their submissions documents].
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