Immigration Amendment Bill: submission by Trade Unions, deliberation & adoption; Civil Union Bill: submission by Traditional Lea

Home Affairs

24 October 2006
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

24 October 2006

Mr H Chauke (ANC)

Documents handed out:
COSATU and NUM joint submission on Immigration Amendment Bill
Congress of Traditional Leaders of South Africa (Contralesa) submission
Summary of submissions on the Immigration Amendment Bill, prepared by Parliament Research Unit
Summary of submissions on the Civil Union Bill, prepared by Parliament Research Unit

Two trade unions made an oral submission on the Immigration Amendment Bill. They were concerned with the principles that immigration legislation was being amended piecemeal instead of a comprehensive study and overview of all legislation being carried out, as had been promised in 2004. They were also concerned that the Bill had not been tabled before the National Economic Development and Labour Council (Nedlac) and felt that the consultative process had not been complete. Further to this, they had technical comments on two clauses of the Bill. Members asked questions on the consultation process, the transfer of skills, taxation of migrant workers, tabling before Nedlac and the question of notice. The legal advisors believed that a proper process had been followed but took the point on the overview of the law. The Legal Services division of the Department of Home Affairs then summarised all the comments made during the public hearings. It noted that the Bill was largely technical. The submissions made by PriceWaterhouseCoopers in regard to extension of the period of four years for intra-company transfer permits were not supported after the Department explained that it wished to avoid automatic recognition of permanent residence that would flow from a five year period. The submissions by the Law Society of South Africa were not supported. The concerns of the trade unions were not considered founded, and the Department and the State Law Advisors believed that the proper process had been followed as required. The concerns of Business Unity South Africa were also not supported as they did not appear to reflect the correct legal position. After the Committee had asked some questions of clarity, and had considered each clause, it adopted the Bill.

The National House of Traditional Leaders gave an oral submission to the Committee on the Civil Union Bill. It explained that traditional leaders in effect acted as the voice of the community, not as decision makers on their own. The concept of same sex marriages offended against the traditional view that marriage must be a union between a male and a female, that a marriage bound families and had procreation of children as a primary purpose. The provisions of the Bill dealing with domestic partnerships were also in many cases in conflict with traditional law. Committee members questioned the practicality of the proposals, and whether it would be correct to amend the Constitution to satisfy a relatively small group. They queried whether traditional leaders would recommend that the words “or spouse” should be allowed to be read into the Marriage Act by default, whether there was good cause to request an extension of time, and whether the views would change. The position in other African countries was noted. The role of traditional leaders in civil and customary marriages was clarified. .

A draft report containing a summary of comments made during the hearings on the Civil Union Bill was tabled and introduced by a Parliament researcher. The submissions made had been grouped under various general categories. Members requested the inclusion of the petitions and specific mention of these and the marches. The dates, places, attendees and submissions should be amplified. Members requested a quantitative analysis, an indication of the main points by each presenter, a summary of the legal points raised, with reference to clauses in the Bill, and reference to the fact that most presenters had expressed opposition to the Bill. The legal advisors from the Departments of Home Affairs and Justice would advise the Committee on its procedures and on the legal points. The Committee would commence deliberations on the hearings and submissions on Tuesday 31 October, and would aim to finalise deliberations by 3 November.

The Congress of Traditional Leaders gave the last oral submission to be heard by the committee on the Civil Union Bill. He was speaking on behalf of traditional leaders as well as their community. The Congress was opposed to the marriages of same sex couples. This was considered against nature and African tradition. Marriages were not only between individuals, but families. Succession rights, and the rights of children to be brought up in a traditional family structure would be affected. Adoption of children by same-sex couples would reduce children to commodities. The Congress was not homophobic but urged the Committee to protect the sanctity of marriage as currently understood. The amendments to allow domestic partnerships were also not supported. The Congress suggested that members should vote on personal conscience as opposed to following the party line, and that Parliament should not allow itself to be puppets of the Constitutional Court, whose function was seen as interpreting the law. Members of the Committee stressed, in their questions, that if the Bill was not passed, then the constitutional court ruling would automatically come into force, which would effectively supplement the Marriage Act. Members sought comments from the Congress on the impact of the Bill on children, and on the possible options of applying for more time, of a Constitutional amendment, and of the removal of Clause 11 in an attempt to reach common ground. The move to amend the Constitution by way of a Private Member’s proposal was not specifically supported.


Immigration Amendment Bill: Submission by trade unions.
Ms Prakashnee Govender, Legal Co-ordinator, Congress of South African Trade Unions (COSATU), made a submission to the Committee on behalf of COSATU and the National Union of Mineworkers (NUM). Both unions had a substantial interest in immigration matters, as both were concerned with migrant workers.

The two unions were concerned about the substance, the procedure and the context of the Immigration Amendment Bill (IAB). The unions had understood that immigration policy was to be examined in detail, with a view to assessing the importance of skills and internal security, as well as broad issues of exploitation of migrant workers, human trafficking, and xenophobia. The unions understood that the whole policy would be overhauled, and perhaps that there would be a White Paper, but instead the Department of Home Affairs (DHA) seemed to be adopting a piecemeal approach. The unions wished to have clarity on what exactly was happening.

A further concern was that immigration was never just a national issue but involved regions and the international community. The SADC region had adopted two Charters; the Charter on Fundamental Social Rights and the Protocol on the Free Movement of People within SADC. Although South Africa had not signed all the international treaties and instruments, they could still be used for interpretation purposes and South Africa still had to look also at the long-term feasibility of adopting the international instruments.

In so far as the substance of the Bill was concerned, the unions had two main objections. Clause 6 (referred to as “clause 5” in the written submission, as this was written before the renumbering of the clauses in the draft Bill) dealt with the intra-company transfers of staff, by international companies. The amendment proposed that a period of four years be granted under intra company permits. The unions were concerned that the longer period did not provide for any specific incentives to companies to promote local skills development. On the one hand the skills were scarce and were needed but on the other there was no requirement that they be transferred to local people. The unions also objected to Clause 8, relating to the removal of quotas. The unions were concerned that the provisions might not be workable and might also not provide any incentives to promote skills development.

As a long term suggestion the unions proposed that both the Parliamentary Committee and the Department, who had indicated their support for a holistic examination and overhaul of the legislation in 2004, should enter a public and consultative process, which would also need to be considered by National Economic Development and Labour Council (Nedlac) and the Labour Councils.

The Chairperson asked whether COSATU had been consulted as the list of stakeholders indicated that there was a consultative process, and whether they had been part of the engagement on the amendments.

Ms Govender replied that DHA had asked COSATU to submit comments and NUM had a representative on the Immigration Advisory Board.

Mr F Beukman (ANC) agreed that there was a need to have a full revision of the policies but the object of this Bill was clearly stated as a technical amendment, and it did not really play a part in the major overhaul process.

Ms Govender stated that COSATU appreciated that this particular Bill was largely technical but was expressing concern that the process of overhaul had not yet begun whilst other pieces of legislation were still being presented.

Ms S Kalyan (DA) referred to the objections to Clause 6 and asked whether Ms Govender had meant that there would be no incentive to local or foreign firms.

Ms Govender replied that both local and foreign firms should become involved in skills development. Foreign firms gained a benefit from operating in South Africa and must promote South African interests.

Mr K Morwamoche (ANC) noted that COSATU had referred to a statement that “The Immigration Act provides a policy framework, although it is not perfect” and asked what else COSATU would recommend.

Ms Govender stated that this was a quotation by the Minister of Home Affairs and it was referred to in a specific context. COSATU could live with the Act, but did not agree that it complied with the process, which had been agreed upon but was yet to take place.

In answer to another question from Ms Kalyan seeking clarity, she expanded that COSATU remained concerned about the lack of commitment to drive local development. At the moment there seemed to be an idea that this should be left to market forces. On the one hand the Deputy Minister had stated that South Africa should accept the importation of foreign skills, but on the other COSATU felt that the Department should take a far more proactive role and the business community also should show more commitment to skills development.

Mr Beukman asked whether COSATU believed that the Accelerated Shared Growth Initiative for South Africa (ASGISA) would make a difference.

Ms Govender replied that ASGISA was not her focus area, but in general COSATU were concerned about the processes. COSATU did engage with the ASGISA and JIPSA (Joint Initiative for Priority Skills) programmes but still believed that further proactive drivers were necessary.

Mr Morwamoche noted that no concerns were raised in the submission about the double taxation of migrant workers.

Ms Govender replied that COSATU was concerned about double taxation but had not dealt with it in this submission as the Bill did not impact directly upon it. Agreements from the International Labour Organisation and the United Nations needed to be looked at, and in the national process it would be necessary also to look at problems of double taxation, termination of contracts and deportation, complaints procedures for migrant workers and compulsory deferred pay.

Mr M Sikakane (ANC) believed that South Africa should not attempt to block skills coming into the country as he believed that without those skills coming in, there could be no transfer.

Ms Kalyan added that South Africa must accept the reality of the skills gap. She asked whether the Unions had any alternative suggestions to address the gap.

Ms Govender stated that there was a problem with xenophobia and therefore both unions were always treading a difficult path. Both represented local and foreign workers and were keen to strike a balance. It was more in regard to highly skilled workers that the restrictions needed to be considered. The unions did not wish to prevent foreign skilled workers from coming into the country but did believe that they should be regulated, particularly in regard to the steps they took to transfer skills. Clearly local workers could not currently take the positions, but they must be developed. Multinational companies were not doing enough to transfer the skills. Furthermore many of the foreign nations may have high skills, profiles and salaries, but might not deliver properly. She cited the Coleman Andrews scenario. In addition there was a problem that many of the skills – particularly of refugees or foreign migrant workers – were not matched with the jobs they were doing, so that highly trained people were perhaps working as car guards. This was reason to have a comprehensive overview.

The Chairperson returned to the question of engagement between the DHA and the unions and asked the Department to comment.

Advocate Deon Erasmus, Director, Drafting, Legal Services, DHA, stated that although Legal Services were not directly involved in policy making it did deal with the policy unit and would convey these comments to that unit.

Ms Kalyan referred to the comment that the Bill should have been tabled at Nedlac before being introduced to Parliament and asked for clarity.

Ms Govender stated that the unions had made a written submission to the Department. Any Act tabled in Parliament, that had any societal or labour implications, should be tabled at Nedlac and this was not done.

Adv Erasmus stated that the procedures had, in his view, been correctly followed. The Bill had been certified and finalised by the State Law Advisors and was then published in the Government Gazette for comment. It was the responsibility of Nedlac then to approach DHA with its input.

Ms Kalyan asked if Legal Services regarded the publication as sufficient notice and engagement.

Ms Govender replied that Nedlac was not a civil society organisation but was a tripartite negotiation body. The normal process would have been to table the Bill before Nedlac so that Nedlac could consider it.

The Chairperson asked whether anything would change if the Bill were now to be referred to Nedlac and whether the unions would challenge the constitutionality of the Bill on this point.

Ms Govender replied that she could not say whether anything would change as the outcome of the process would depend on the negotiations. However, this had been raised as a matter of concern. Increasingly government departments seemed to bypass this procedure and were undermining the structure of Nedlac, when in fact it afforded an ideal platform to get all stakeholders together.

Mr Morwamoche asked whether the Nedlac issue had been mentioned in the written submission

Ms Govender replied that the unions had done so and assumed that DHA would follow the same procedure.

In answer to a question from the Chairperson, Ms Lee Anne de la Hunt, Legal Advisor to the Minister of Home Affairs, stated that she had not considered that point.

Immigration Amendment Bill: Department response to submissions
Adv D Erasmus tabled a summary of the other comments made during the public hearings on this Bill, prepared by the Parliament Research Unit. He summarised the comments for the Committee.

PriceWaterhouseCoopers had raised the point that the period allowed for intra-company transfers, now raised to four years, did not match up with the general five year period of tax legislation, and had recommended that the period be five years. DHA did not agree with this. The reason that the period had been raised was in fact to address the points that COSATU had raised, and to allow an extended period for skills transfer, but at the same time DHA did not wish the people being transferred simply to qualify to apply for permanent residence permits after five years. Whilst they could certainly make application, should they wish to do so, it would have to be an application based on their skills rather than an automatic entitlement.

PriceWaterhouseCoopers had raised the further point that there was apparently a move afoot to amend the rules relating to filling of posts in intra-company transfers, so as not to allow another foreign national to take over from one who was moved on. Adv Erasmus stated that DHA had certainly never made a proposal to this effect and it seemed to be a mere rumour from an unknown source.

Business Unity South Africa (BUSA) had raised a query on the periods of three months mentioned for renewal of permits under the new Section 11 of the Act (Clause 4(a)). Adv Erasmus pointed out that there was no automatic extension; there had to be an application and the permit could be extended for an effective six months, but this would be by incremental periods of three months. Furthermore, BUSA had not seemed to appreciate that there was provision made for special cases. Most visitors were prevented from working on a visitor’s permit, but could make application for a work permit for three months, which could be extended, on application, for a further three months. However, provision was also made in subparagraph 11(b)(4) for foreigners who, for instance, were called into the country to fix specialised machinery, or for academics taking visiting appointments at a local university, and who might be required to complete the job over a defined period of months, which might exceed the six month period already allowed. If this special provision were not included such people would have to apply again for permits, and DHA wished to avoid the necessity, in limited circumstances, of having to do so. The circumstances of the subparagraph (b) permits would be strictly prescribed and set out in the Regulations.

In regard to the submissions made by COSATU and NUM, Adv Erasmus stated that the concerns raised on Clause 8 were not entirely correct. The revised sections 19(1) and 27 of the main Act must be read together. The amendments were intended to streamline the Immigration Act and the quotas had not in fact been removed.

The Law Society of South Africa had raised some queries on the definitions, believing that the terms relating to “associate member of a company” needed to be defined. Adv Erasmus said that this partially concerned with the style of drafting, and although it was possible to include some sort of application clause, stating that for the purposes of a particular section, the words would have a certain meaning, he believed that this was not really necessary. The words questioned were already part of the definition of branch and subsidiary, and BUSA had stated that “associate” had a clearly understood and accepted meaning in the business community.

The Law Society had also raised a query on section 11(2) and suggested that the subject of the Regulations by the Minister should be defined. DHA did not wish to do so. It wished to leave the section as wide as possible to allow flexibility to the Minister.

The Law Society had also raised concern about the linking of sections 19 and 27, believing that the effect would be to limit the categories. DHA did not agree. The skills lists were drawn in consultation with the Department of Labour, Education and Trade and Industry and there would be no limitation resulting from the way in which it was drafted. The current draft clearly reflected the intentions of the Department.

Adv Erasmus referred to comments during the hearing concerning trafficking, conveying of migrant workers by land, sea or air and agreed that although the concepts were very important, they were not really relevant to this particular Bill and therefore had not been incorporated into it. All the issues would be considered at another forum and in the longer term.

Adv Erasmus referred to the objections by BUSA to the inclusion of certain offences into the Schedule of the Act. BUSA believed that the extension of the offences, which now included offences such as bestiality, was incorrect and irrelevant, and might be unconstitutional. Adv Erasmus pointed out that the offences were all crimes on the statute books at present, and that therefore they could not affect the constitutionality of this Bill. Whether the existence of the offences could be successfully challenged was another issue.

The Chairperson asked whether DHA could give an assurance that the position of foreign workers would be monitored to avoid another Coleman Andrews situation developing.

Adv Erasmus stated that it was the function of the Department of Labour, ASGISA and JIPSA to look into issues when drawing up the lists of scarce skills, which in turn would influence the Minister’s list that was published in the Government Gazette. This list was not done by way of Regulation and the Minister could publish more than one list per year.

Mr Sikakane asked how many skilled intra-company workers were likely to take up permanent residence, and whether there would be any harm in extending the period of four years now allowed to the five suggested. He was not convinced that the dangers outweighed the benefits of longer times allowed for skills transfer.

Ms de la Hunt stated that there were two ways of acquiring permanent residence and the Immigration Act provided a number of ways in which people could work and stay in South Africa. A person who had a work permit could apply, on expiry of a five year period, for the right of permanent residence, but would have to prove that he / she had the necessary qualifications and skills. It was quite a lengthy process. The intra-company transfers, on the other hand, did not require the same type of proof. This was intentional, so that the major international corporations, such as audit firms, could more easily transfer their management and perhaps get an experienced person, who was already familiar the company’s practices and rules, to run an office in another country. The company would determine whom it wished to appoint, and the skills did not have to be proven. The only requirements, from DHA, related to the existence of a contract between the company and the individual, and police clearance. The company would not have had to advertise the job locally. However, if the incumbent wanted, after his four-year work permit had expired, to apply for permanent residence, this would not be so simply and here he / she would have to go through the full permanent residence application, including proving skills, and if the company wished to re-appoint that person, now a permanent resident, it would have to go through the advertisement process. She noted that it was very difficult for a profession to predict exactly how many professionals it would need, and the quota system tried not just to match the exact number of jobs to the exact number of people, but rather to encourage those with skills to apply and grow the industry.

She reiterated the point by Adv Erasmus that DHA had wanted to keep the position at four years to avoid an “automatic” permanent residence entitlement. The tax legislation could cater for the position without DHA legislation necessarily having to match the time periods.

Ms Kalyan raised a further query on the consultation processes and asked for specific answers whether there had been face to face consultation with COSATU. She asked also if the Act required a face to face consultation with Nedlac, and, since this had not happened, the effect of the Act.

Adv Erasmus stated that there was no face to face consultation with COSATU. However, the draft had been forwarded for comment, and submissions were received. In his view, the process was correct since they had been given the opportunity to comment, their comments had been considered and Legal Services and the policy unit had discussed, in respect of this and other submissions, whether the proposals made were valid and amendments made to the draft Bill. He did not believe that “consultation” had to mean “one on one discussion” but included sending information, receiving comment and digesting the content of the submission.

Ms Kalyan and Mr Sikakane differed in their interpretation whether this process could be properly termed “consultation”. Mr Morwamoche believed that the Department had followed the steps set out in the Rules of Parliament.

Adv Erasmus added that in fact Legal Services had published the Bill twice; once before and once after certification by the State Law Advisors in terms of Joint Rule 159. There had been no changes to the initial Bill forwarded to the stakeholders.

Mr H Smuts, State Law Advisor, Office of the Chief State Law Advisor, stated, in regard to the query raised on Nedlac, that only Bills with a labour or social implication had to be tabled. This Bill did not impact on labour hours, conditions of labour or social or economic matters. It was technical in nature. In his view there was no necessity to table it at Nedlac. The Department of Justice was happy with the drafting of the Bill and the processes that had been followed.

Voting on Immigration Amendment Bill
The questions on the briefing having been concluded, Adv Erasmus took the Committee, clause by clause, through the Immigration Amendment Bill. The Committee expressed unanimous agreement with each clause. There was a quorum present, and the Bill was proposed and seconded for adoption.

Ms Kalyan noted that she was abstaining from voting as she had not yet received a party mandate.

The Committee voted unanimously to adopt the Bill, and the necessary procedural steps would now be followed to have it debated in the full House.

Submission by the National House of Traditional Leaders on the Civil Union Bill
Mr Morena Mopeli, Deputy Chairperson, National House of Traditional Leaders, gave a submission to the Committee on the Civil Union Bill. He tendered the apologies of the Chairperson, who was addressing another Portfolio Committee. He reported that the Bill had been referred to the National House of Traditional Leaders (NHTL) in terms of the Framework Act on Traditional Leadership. The NHTL was mandated by section 212 of the Constitution, and had been established by the National House of Traditional Leaders Act.

The Civil Union Bill (the Bill) was considered contrary to African culture, which regarded marriage as a union not only of two persons, one male and one female, but as a union of families. The NHTL had already been concerned, after the Supreme Court of Appeal decision and before the decision of the Constitutional Court, about the implications of the judgments and had therefore embarked immediately on a process of holding public hearings in the rural areas of the six provinces that were identified as having traditional communities. These hearings, and engagements with other structures, indicated clearly that a recognition as a marriage of any union other than that traditionally understood (male and female, with involvement by families) would not be acceptable to the traditional communities. NHTL recognised the provisions of Section 9 of the Constitution in regard to non-discrimination on listed grounds. It was of the view that the interpretation given to the equality clause was correct, but that there should be an amendment of the Constitution, which must qualify that marriage was to be regarded only as one between a male and a female.

Mr Mopeli explained his contention that a marriage was not just a union between individuals but also between families and added that the procreation of children was a primary aim of marriage, which could clearly not be fulfilled by single sex couples. NHTL appreciated the diversity of South African society, appreciated the constitutional recognition of it, and believed in tolerance to all. However, extending the definition of marriage to same sex couples would not be acceptable. Mr Mopeli stated that in the written submission previously forwarded to the Committee there were Biblical references. He asked that these be deleted. Although many community members were Christian, NHTL did not use the Bible as the point of reference, believing also in the ancestral spirits. This was one of the reasons why the procreation of children was important, as a link between living relatives and ancestral spirits, which must be maintained through the continuous growth of families. Families were also involved in lobola, and in assisting the new couple to succeed in their marriage.

For this reason, the idea of domestic partnerships was also not acceptable. The Bill allowed the use of the reference “marriage” to the ceremony. The registered and unregistered domestic partnerships would create competition with customary marriages. These provisions of the Bill were therefore also not supported.

Mr Beukman questioned the practicality of the proposal that the Constitution be amended. He mentioned the deadline of 1 December given by the Constitutional Court, failing which the words “or spouse” would be read into the Marriage Act. The Bill of Rights was the cornerstone of the Constitution, and this had been adopted in 1996. He asked whether NHTL thought it would be possible to obtain a constitutional amendment in the next five weeks, and if there was not some other compromise.

Mr W Skhosana (ANC) also queried whether traditional views could be accommodated in some other way.

Ms Kalyan believed that the timeframe would not allow for a constitutional amendment and asked for comment on the default reading of “or spouse” into the Marriage Act. She also asked for NHTL’s view whether the Committee should apply for an extension of time to the Constitutional Court.

Mr Mopedi believed that a constitutional amendment was the only possible route. The interpretation given to the equality clause had been consistent. He could not comment on the short time frame, and whether the amendment would be possible within this time. NHTL would support the idea of an extension of time, indicating that more time was needed to come up with a solution that would be acceptable to all.

The Chairperson asked what would be gained in more time, and if NHTL really thought that the results of discussions would be any different.

Mr S Swart (ACDP) noted that the practice of same sex marriages was generally contrary to customs and traditions in South Africa. He stated that other African countries, including Uganda and Nigeria, had amended their constitutions to reflect that marriage was only to be regarded as heterosexual marriage. He asked if the NHTL knew of any other African country that did recognise same sex marriages. He asked whether the constitutional amendment he had proposed would still allow for polygamous marriage. He noted that about five countries internationally had recognised same sex marriages.

Mr Mopedi was not aware of any other African country that recognised same sex marriages. He was pleased to note that the Committee had recognised the precedent set by other countries in defining marriage. NHTL still maintained its view that same sex marriages were completely contrary to traditional African culture.

Mr Morwamoche asked what NHTL suggested that the Committee should do to accommodate those who had requested legal recognition of their unions as marriages.

Mr Mopedi believed that the legislation already sufficiently accommodated the needs of same sex couples. There were various Constitutional Court rulings protecting aspects of their relationships in the same way as heterosexual couples were protected, covering matters such as inheritance, medical benefits and so forth. Most of the areas of discrimination had already been removed. NHTL did not in any way suggest that there should not be fair and equal treatment, nor would it condone discrimination. It recognised that same sex couples were part of society but felt that the institution of marriage must be protected and its defining feature as one between male and female must be preserved.

The Chairperson asked for clarity on the role of traditional leaders. He understood that they often became involved in non-customary marriages also.

Mr Mopedi stated that in any marriage the issue of lobola was crucial. Although it was neither a requirement of civil marriages nor those performed under the Recognition of Customary Marriages Act, it was included by implication and by the wishes of the parties. Traditional leaders largely played an evidentiary proof role, and to safeguard interests of individuals and families. The people should be seen to have a part in making the laws, and therefore the law should not run contrary to what the people wanted.

The Chairperson pointed out that only a small percentage of the population were represented by the NHTL and he asked whether it was correct that the Constitution be amended to reflect the concerns of a relatively small group. He also asked whether Mr Mopeli had ever heard of the families of a same sex couple coming together to discuss lobola or sharing of assets.

Mr Mopeli said that he had never heard of such discussions and NHTL would be “shocked” to hear of this.

The Chairperson wondered why so many people were afraid of same sex marriages. He asked, in the event that the law was changed to permit same sex marriage, whether traditional leaders would be prepared to perform the ceremony and assist the discussions on lobola.

Mr Mopeli stated that traditional leaders would naturally uphold the Constitution and the law. However NHTL had already stated that it did not believe the law should be passed. NHTL and the people were against the changes proposed, and the law was supposed to reflect the values of people. He was sure that those who had passed the Constitution had never envisaged that the generally understood definition of marriage could be challenged by the Constitution. If the Bill were passed in its current form, NHTL would engage further with Parliament. He would not like to see a situation where people were forced to accept something that was clearly against public opinion and the will of the people.

Mr Skhosana said that same sex couples existed already. He wondered if the views of traditional leaders would change if they were able to see that same sex relationships could be successful, fulfilling and lasting.

Mr Mopeli stressed that traditional leaders did not impose their individual viewpoints, but rather expressed the values and customs determined by the society, which would have reached conclusions and principles on the basis of public gathering and debate.

Mr Beukman asked whether, in terms of the processes, there had been sufficient time for NHTL to consult with its constituencies.

Mr Mopeli stated that the process had already started before the ruling of the Constitutional Court. There had been continuous engagement. He doubted whether any different views would be expressed no matter how long the process was. He stated that the engagement with constituencies was still ongoing, but so far only the constitutional amendment had been put forward as a viable option.

Adv S Maifadi, Parliamentary Manager, NHTL, added that there had been a full consultative process and that all traditional leaders shared the same view. He also stated that in general NHTL was required to comment to parliament on certain areas, and often it was difficult for NHTL to meet the 30-day period prescribed. He suggested that perhaps the NHTL should be involved at an earlier stage, when ideas were being discussed and the Bills conceptualised, so that NHTL’s thinking was clearly understood.

The Chairperson asked whether the public hearing process had been conducted on the basis of the Supreme Court of Appeal, or the Constitutional Court judgment.

Mr Mopeli replied that some hearings were conducted before, and some after, the Constitutional Court judgment. However, the principles and views did not differ.

Ms Kalyan asked if traditional leaders would still be prepared to act as marriage officers if the Bill was passed.

Mr Mopeli stated that that would depend on the individual traditional leaders and he could not presume to speak for them.

Mr S Swart stated, on the issue of domestic partnerships, that NHTL had felt these could impact on the rights of spouses and children. Child issues had been of concern to the Committee. He asked for further elaboration.

Mr Mopeli stated that a detailed submission in this regard would be prepared and forwarded to the Committee.

The Chairperson asked if NHTL had interacted with DHA.

Mr Mopeli replied that NHTL had not yet been able to do so. It had requested a meeting but had been unable to get a response. He would let the Committee have details of the attempted contacts.

The Chairperson asked if NHTL would be happy with the removal of the words “marriage” from the Bill, and whether the idea of civil unions would be supported.

Mr Mopeli replied that this was really a technical point and NHTL would support this, but he stated that traditional leaders would probably not be involved in the solemnisation of the ceremonies.

The Chairperson indicated that the traditional leaders were key stakeholders in matters pertaining to marriage, be it civil, religious or customary, and the Committee had welcome the input made both here and during the public hearings in other centres by traditional leaders.

Summary of submissions on Civil Union Bill hearings
Mr Rousseau Mankge, Committee Secretary, tabled a draft summary of submissions given at the hearings on the Civil Union Bill. Further comments would still be added from the hearings that day. He indicated the Introduction and Background set out in the draft. He stated that the purpose of the visits and public hearings was summarised, together with a list of those attending and the dates and places. The submissions made had been grouped under various general categories. Religious Groups had included Christian, Muslin, Hindu and other denominations. Gay, lesbian, bisexual and transgender groups were mentioned under one heading. Traditional Groups and others included chiefs and traditional healers. It was noted that whilst they had generally rejected the Bill, some men who had assumed the care of abandoned female relatives and their children had welcomed the provisions in regard to domestic partnerships as providing some measure of protection to the women and children.

Mr Mankge noted that the report also contained some comments on the Films and Publications Amendment Bill, but that these comments would be left out of the final version, since this latter Bill would be dealt with only in the new year.

The Chairperson mentioned that certain petitions had also been handed over and he felt that there should be reference made to the recent marches and the petitions.

Mr Beukman suggested that the section setting out the visits should also include reference to specific venues visited, and the most recent hearings held in the Committee’s meetings during the last week. An annexure should reflect who had attended and made submissions. In regard to the groups listed, he felt that these should be amplified, indicating that there had also been input from civil society organisations, legal advisors or commentators, and programmes or units from academic institutions.

Ms Kalyan agreed, and added that it would be useful to have a quantitative analysis of the number of submissions received, and the numbers and percentages who had been in favour of or against defined principles in the Bill. She also noted that Mr Mfundisi had attended, at least in Rustenberg, and requested that he be added to the list. There were some grammatical errors that required to be corrected.

Mr S Swart felt that it would be useful to have a summary of the points made in each written submission, and that mention should also be made of the petitions. He thought that this was rather too truncated. Reference should be made clearly to the fact that the overwhelming majority of those consulted were opposed to the Bill.

Mr Swart asked who had been assigned to comment upon the legal points raised by groups such as the Equality Project, Doctors for Life, the Christian Lawyers Association, and the universities. He suggested that the legal arguments should be set out and summarised in respect of each section of the Bill and that the legal advisors comment upon them.

The Chairperson responded that Legal Services, DHA should pick up on those areas. He asked Adv Erasmus to prepare himself and his team to discuss these points with the Committee during the deliberations. He requested also that the legal advisors of both the Departments of Home Affairs and Justice must be fully involved and brief the Committee in detail upon whether it had followed all the procedural steps required.

Mr Morwamoche agreed and asked for assurance that the Committee had done all that was required in terms of public engagement. This too should be set out in the Report.

The Chairperson stated that the Committee would still consider a further submission that afternoon. The South African Law Reform Commission would give a brief summary of its findings on the issues covered in the Bill on the afternoon of Thursday 26 October. The Committee would not meet on Friday 27 October. It would commence deliberations on the hearings and submissions made on Tuesday 31 October, and would aim to finalise deliberations by 3 November.

Afternoon session
Congress of Traditional Leaders of South Africa (Contralesa) submission
Nkosi Mwelo Nonkonyana, Contralesa Chairperson, apologised for the delay in the report, and tendered apologies from his colleagues who could not attend. He emphasised the fact that at the time of the adoption of the Constitution some of the concerns of the Traditional Leaders had been ignored, and he hoped this time they would be heeded. He also stressed that the Congress were not homophobic but they and the communities they represented were against the idea of same sex marriages, as this was against nature and the African culture. He begged the Committee to uphold the sanctity of marriage and stated that the electorate should have the power to change the law, and not the judges. He concluded that the Bill could not be supported, nor should there be any changes to the definition of marriage as one between a man and a woman.

Ms S Kalyan (DA) asked Nkosi Nonkonyana’s comments on the fact that if the Bill was not passed, then the constitutional ruling to substantiate the Marriage Act by adding the words “or spouse” after “or husband” would automatically take effect.

Nkosi Nonkonyana replied that doing nothing and letting the constitutional ruling kick in was objectionable but he emphasized that to reject the bill was not the same as doing nothing, and the majority of the people were clearly opposed to the changes proposed.

Ms Kalyan asked whether he was of the opinion that the Committee should request more time from the Constitutional Court to allow time for a more amicable solution to be negotiated.

Nkosi Nonkonyana replied that this was the best solution as more consultation needed to be done.

The Chairperson asked whether people would change their minds, and if there was no suggestion that the extension would alter ideas then it was best to deal with the Bill immediately.

Nkosi Nonkonyana replied that an extension of time might allow the committee to come to more workable solution

Mr F Beukman (ANC) referred to the proposition in the written submissions of the Congress that members should vote according to their conscience as opposed to party lines. He said this would be hard to follow, considering that South Africa had a party based system.

Nkosi Nonkonyana replied that this might be so but they should take a leaf from the British system where Members were entitled to express disagreement with the party line.

Mr S Swart (ACDP) asked if the Congress was of the opinion that that the deadline for constitutional amendment be extended.

Nkosi Nonkonyana replied that he indeed was of the opinion that there should be an extension for consultation to be done with the people.

Mr Morwamoche (ANC) asked for the Congress’s opinion on the accommodation and acknowledgment of gays and lesbians.

Nkosi Nonkonyana replied that South Africa was a rainbow nation that accommodated everyone’s diversity, but this should not be extended to negate the basics of life. People who, for instance, performed obscene acts or indulged in deviant practices could not have their preferences and actions condoned.

Ms N Mathibela (ANC) asked for the opinions of the Congress on children being adopted by gays and lesbians, who had this right by law.

Nkosi Nonkonyana replied that one of the reasons for opposition to same sex marriages was the inability of these couples to procreate. The Congress felt that heterosexuals should not be reduced to machines who could bear children, nor reduce children to commodities.

Mr Morwamoche asked for elaboration on the suggested impact of gay and lesbian marriages on the administration of estates.

Nkosi Nonkonyana replied that in the African culture there were universal heirs who stepped in the shoes of the father. Marriage was a family as well as an individual issue. If lesbians could marry, and did not adopt children, there was nobody who could inherit. This caused chaos in intestate succession. There was also an issue of maintenance, which was the prerogative of the father.

Mr W Skhosana (ANC) asked for comment on the view that many women who were unemployed would use marriage as an excuse to be supported. He asked what might be the consequences of the changes in respect of domestic partnerships.

Nkosi Nonkonyana replied that this was an incorrect concept and might lead to an amoral society, and thus the electorate should not promote such behaviour. Again he stated that Parliament should not pass law without considering its consequences as this might lead to something they could not control.

Mr Beukman suggested that if Clause 11 be removed there may be some consensus.

The Chairperson asked for comment on the suggestion made by Mr Beukman, especially considering the fact that gays and lesbians were not happy with the Bill.

Nkosi Nonkonyana replied that this was not an option as the whole idea of the bill was objectionable. He implored the committee to protect the institution of marriage as it currently stood, and for the Committee not to be puppets of the constitutional court. Parliament must make the law, and it was the court’s job to interpret it.

Mr S Swart asked whether the Congress had any opinion on the impact of the Bill on children. This issue had been raised several times but had never been fully discussed.

Nkosi Nonkonyana replied that this was the most compelling argument of all, as children were the future who should be protected from an amoral society, and should be exposed to the family unit, which was beneficial for their growth.

Mr Swart asked for Mr Nonkonyana’s opinion on the current constitutional amendments that were under discussion in the Private Members’ Legislative Proposals Committee.

Nkosi Nonkonyana replied that he was opposed to this notion, since as far as he was concerned there was the Constitutional Review Committee which adequately performed its functions.

Meeting concluded.



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