Civil Union Bill: deliberations

HOME AFFAIRS PORTFOLIO COMMITTEE
7 November 2006
CIVIL UNION BILL: DELIBERATIONS

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Amendments proposed by the Democratic Alliance

Relevant Documents:
Civil Union Bill [B26-2006]

SUMMARY
Members met with legal advisors of the Departments of Justice and Constitutional Affairs and Home Affairs and the South African Law Reform Commission to consider the Civil Union Bill. The Democratic Alliance tabled a proposal that the Bill be amended to cover all unions between two adult consenting partners irrespective of gender, including the deletion of Clause 11 (1) and amendment of clauses 11 (2) and 11 (3). Such amendments would reduce the likelihood of future legal challenges. The African Christian Democratic Party (ACDP) was of the opinion that same-sex unions should not be called marriages. They pointed out that very few other countries, and no other African countries, had allowed same-sex marriage. They therefore recommended that all references to marriage should be deleted, including Clause 11.1. The term “marriage officer” should be replaced with the term “civil union officer”. The ACDP further recommended that the chapters dealing with domestic partnerships be removed from this Bill and be dealt with separately and in detail. Although the ACDP had suggested that an extension be sought from the Court, it accepted that time was running out. It had already submitted a Constitution Amendment Bill to give protection to the current definition of “marriage” as it believed there was sufficient justification for this form of difference. The IFP did not give a view, but wished to reserve its position. The drafters from the Department of Home Affairs were happy that Clause 13 was required to cater for the consequential changes in other legislation. If the references to “marriage” were deleted, the Department did not believe that there would be any conflict with the judgment. civil unions should be in the same piece of legislation. The State Law Advisors indicated that it would be incorrect to refer to “niceties” in clause 11 without any real benefit, and that although same sex couples should be able to celebrate and solemnise their union it should not be called a “marriage”. Inclusion of the domestic partnerships in the same Bill had clouded the issues and civil unions should not be considered equivalent to domestic partnerships. Some ANC members did not believe that there was difficulty with the use of “marriage” while others did not feel it had ever been adequately defined. It was suggested that a marriage officer should be referred to as a certification officer. Another ANC members supported the original South African Law Reform Commission proposal that there be three pieces of legislation; an Orthodox Marriage Act, a Civil Marriage Act and an act dealing with domestic partnerships. The UCDP objected to the concept of marriage being extended to same sex couples.

Questions were raised on the necessity to cater for transgender people, the impact of the Constitutional Court judgment, the definition of the word “marriage” as opposed to “wedding”, the change of the common law definition of marriage, and the difficulty of defining marriage in the South African context. Members were requested by the Chairman to caucus with their parties and to present the parties’ positions the following day.

MINUTES
The Chairperson hoped that all Members had now had time to caucus with their parties and would be able to provide their views on the Bill. He tabled a one-page document from the Democratic Alliance and asked that it be introduced.

Ms S Kalyan (DA) stated that her party believed that, purely from a legal perspective, the Bill was open to Constitutional challenge as presently framed. It would be unfortunate if it were to be passed in a format that immediately led to litigation. The Democratic Alliance therefore proposed that the Bill be amended so that it covered all unions between any two adult consenting partners, irrespective of gender.

She therefore set out the following proposals to amend the current wording of the Bill:

Wherever the words “same sex” appeared, they should be replaced with “any two consenting adult persons” with the possibility of adding also “irrespective of gender” to clarify the issue even further.

The definition clauses should refer to “civil partnerships”.

Clause 4.1 should also be amended to refer to “civil partnerships”

Clause 8.5 should similarly be amended, and there should also be a deletion of the words “apart from the fact that they are of the same sex”

Clause 11.1 should be removed altogether, thus removing all references to persons being asked to decide if they wished to enter into a marriage or a civil union.

Clauses 11.2 and 11.3 should contain no references to “marriage”.

Clause 13 would need to be looked at in relation to other legislation.

Ms Kalyan stated that these proposals would, in her view, make the Bill gender-neutral and would achieve equality for all, irrespective of their sexual orientation.

The Chairperson asked if there should be any changes to the clauses dealing with domestic partnerships.

Mr M Swart (DA) said that there were no changes proposed. By deleting all references to marriage, the same opportunities and protection was deemed to apply to all.

The Chairperson asked whether these proposals would in any way deviate from the Constitutional Court ruling. He noted that the Court had said that same sex couples must be accommodated and given equal rights to heterosexual couples.

Mr M Swart stated that the constitutional law expert consulted had noted the Court’s ruling that if the legislation was not changed then the word “spouse” would be read into the Marriage Act. However, the Court did not say that this was the only remedy. The Customary Marriages Act and the Marriage Act would still stand.

Mr W Skhosana (ANC) asked what the formerly named “marriage officer” would be called.

Ms Kalyan replied that the Bill already made provision for a marriage officer and a registration officer, so there was no necessity to change those references.

Mr S Swart (ACDP) indicated that the ACDP had already suggested that South Africa should follow the international trade, whereby unions of same sex couples were not called marriages. He had already filed the Constitution 16^th Amendment Bill, aiming to reserve the definition of “marriage” to heterosexual couples. Whilst this was the preferred route that his party wished to follow, it was clear that this would not be finalised by the deadline date of 1 December. There had been public outrage at the suggestion that same sex couples be permitted to marry. In addition it was impossible to investigate and amend all 44 pieces of legislation affected by the Civil Union Bill before that date. Therefore he would like the Committee to check very carefully the application of Clause 13.

The ACDP agreed that all references to marriage should be deleted, including Clause 11.1 It recommended that the term “marriage officer” should be replaced with the term “civil union officer”. The ACDP did not believe that the Constitutional Court judgment had required that same sex marriages should be permitted. It had merely required that same sex couples be afforded the same status and treatment as heterosexual couples. The ACDP believed that if the Bill were to be amended in the way suggested, the civil unions would meet the requirements.

Insofar as domestic partnerships were concerned, the ACDP indicated that it appreciated the input of the South African Law Reform Commission (SALRC) but that the reports needed to be studied in depth. He suggested that the chapters dealing with domestic partnerships be removed from this Bill and put in a separate Bill, to be dealt with separately and in detail. A number of submissions made on domestic partnerships had indicated that the drafting might give rise to unintended consequences and therefore there was a need to consider the implications carefully.

The ACDP had suggested, from the start, that the Committee should approach the Constitutional Court for an extension of time and suspension of the automatic Order on 1 December. While he still thought there was merit in this, from a practical point of view the time was passing quickly.

Ms I Mars (IFP) had to leave the meeting at this point and asked the Chairperson to note that the IFP wished to reserve its position.

Mr S Swart stated that clause 13 was still required in the Bill, and the ACDP believed that this would assist in making the Bill constitutional.

Adv Deon Erasmus, Director: Drafting, Legal Services, Department of Home Affairs (DHA) stated that although there would be numerous consequential amendments by the passing of the Civil Union Bill, the other pieces of legislation were administered by other Departments and it would take considerable time to amend them all. The passing of the Bill would result in automatic changes to the other legislation in certain respects. It was impossible to amend all pieces of legislation in this Committee and that was the reason for inserting Clause 13. The drafters were confident that the wording would adequately cater for the position.

Ms Kalyan questioned where the chapters on domestic partnership would be put if they were removed from the Bill, and whether they should be incorporated into the Marriage Act.

Adv Erasmus replied that they would be placed in a completely new Bill, and that the Department would have to work closely with the SALRC.

Mr Johan de Lange, Legal Drafter, Department of Justice, stated that the domestic partnerships had originally been included in the Civil Union Bill as it was considered that this Bill could properly cover different types of voluntary unions. He noted that although the Constitutional Court, in the Volks v Robinson case, had indicated that there was a need to produce legislation as a matter of some urgency to protect the vulnerable groups, but did not attach a time frame to it.

Ms Kalyan replied that if there was no timeframe given for domestic partnerships there did not seem to be any particular reason why both domestic partnerships and civil unions should be in the same piece of legislation.

Mr Swart confirmed that the domestic partnership clauses would have no impact on the constitutionality of the Civil Union Bill.

Kgosi Morwamoche (ANC) asked why transgender people had not been covered in the Bill. He also asked the Committee to be sure about the implications of removing the reference to marriage officers from the Bill.

Ms Kalyan replied that a person undergoing a sex change would apply to the Department of Home Affairs for a change in gender on the ID document. Such a person would still be classified, in his or her new gender, in the population register. She said that therefore transgender was not an issue. Furthermore, she clarified that lesbians or homosexuals did not wish to change their bodies but merely wished to have their orientation recognised.

An ANC member indicated that customary marriages were not unconstitutional and were dealt with in another law. He asked Mr Swart to indicate why there should be no references to “marriage” in the Bill.

Ms S Kalyan said that the DA proposal was that clause 11 in the Bill be removed to prevent confusion around the formula issue. The Marriage Officer would be placed in a dilemma as to whether the two parties wanted a marriage or a union. Irrespective of a marriage or a union, the process of solemnisation only occurred with regard to a civil union. A marriage certificate would not be issued. The Marriage Officer could be referred to as a certification officer to avoid confusion.

Mr M Swart declared that the issue revolved around consent between two adults irrespective of gender in terms of the civil union proposal. Sex-change individuals could also be included in the framework.

Mr S Swart emphasised the fundamental position of the protection of the institution of marriage. The institution of marriage was centuries old and of great significance to all religions. The State had to protect the nuclear family. Few states recognised same-sex marriage. No other African state allowed same-sex marriage. Various stakeholders had argued for the protection of the institution of marriage. The Committee had to consider whether it had the right to redefine a centuries old institution.

The Chairperson referred to the role of Members to create legislation. The Constitution served as the supreme law of the country.

Mr S Swart reiterated that great care should be taken when tampering with centuries-old institutions. Many submissions had been received requesting that the institution of marriage be protected. The Constitution should be amended to protect the institution of marriage in line with international practice. Civil unions should also afford the same rights and legal benefits enjoyed by married partners to same-sex unions.

The Chairperson stated that the Constitution dealt specifically with issues of sexual orientation.

Mr Swart stated that section 9 outlawed unfair discrimination. New Zealand had a positive right that banned all forms of discrimination. The Constitution did allow justifiable discrimination in terms of section 36. Therefore, the Constitution could be amended to define and interpret marriage. The civil union would convey the same benefits to same-sex couples. The provision to prevent same-sex marriages would therefore be justifiable. The court order was one option to address the situation. He believed there was sufficient reason to protect the institution of marriage.

The Chairperson declared that Members had to focus on the Constitutional Court judgment. The ruling contained a clear instruction to Parliament. The Committee had to ensure that the chosen option responded adequately to the judgement. Future challenges to the Bill should be avoided. The definition of the word “spouse” had to be finalised.

Mr K Morwamoche (ANC) concurred that it was important not to deviate from the court judgement. Same-sex couples wanted legal recognition and the right to solemnise their union or marriage. The Constitution stated clearly that every one was equal before the law. However, he argued that an amendment to the Constitution was not appropriate at the present time.

The Chairperson sought legal comment on the use of the word “marriage”.

Adv Deon Erasmus stated that the Bill contained the word “marriage”. Legal recognition would be accorded to same-sex couples irrespective of whether they opted for “a marriage” or “a union” in the same manner as accorded to heterosexual couples.

Mr S Swart asked whether it would be preferable to remove the word “marriage” from the Bill and allow civil unions to have the same legal consequences.

Adv Erasmus responded that the final decision rested with the Committee on the matter. Irrespective of marriage or union, same-sex couples would receive legal recognition. The Department of Home Affairs had proposed that the word “marriage” should be included.

Ms Jayshree Naidoo, Chief Director, Legal Services, Department of Home Affairs stated that if the Bill did not refer at all to the word “marriage” it would not conflict with the judgment. The ruling stated that the same status had to be accorded to same-sex couples as accorded to married heterosexual partners.

The Chairperson stated that Members would have to closely scrutinise the judgement at the meeting the following day.

Kgosi Morwamoche felt that there was no point in including domestic partnerships in the Bill as the judgment had made no mention of such arrangements.

The Chairperson asked whether the proposal to remove the word “marriage” and to generalise the Bill would address the stipulations of the court order.

Ms Ayesha Johaar State Law Advisor, stated that her office held similar views as expressed by the African Christian Democratic Party. The granting of “legal niceties” to people without any real benefit or transformation in current legal practice was degrading. Same-sex couples had to be granted the opportunity to celebrate their union in public but such an arrangement should not be referred to as a marriage. It would not be construed as unconstitutional if such a union were not referred to as a marriage.

The Chairperson asked whether the celebration of marriage fell within the responsibility of the state. He asked for a definition of the word “wedding”.

Adv Erasmus responded that a wedding was perceived as a ceremony and should not be equated to the concept of marriage.

Ms Kalyan stated that the Bill sought to convey the right to solemnisation that related to the registration of a marriage. Same-sex couples would be afforded the right to solemnise their union.

Ms Johaar stated that the judgement referred to the right of same-sex couples to publicly declare their commitment to each other and achieve the status, entitlements and responsibilities that flowed from marriage. Therefore, clause 11 was essential but the reference to marriage should be removed. The public declaration of commitment referred to the concept of weddings or celebrations.

Adv Erasmus stated again that the issue of domestic partnerships was included due to the Volks v Robinson judgment. Numerous court cases were being heard based on legal recognition of same-sex unions.

Ms Carien Pienaar, Researcher, South African Law Reform Commission, had proposed that domestic partnerships should be placed in a separate Act. The placement of civil unions within the same piece of legislation as domestic partnerships would result in civil unions acquiring the same status as domestic partnerships. Such a move would discredit the attempt to accord same-sex unions the same status and legal recognition as marriage. Therefore, the Law Reform Commission proposed two separate pieces of legislation.

Ms Johaar declared that the State Law Advisors had refused to certify the Bill due to the issue of domestic partnerships. Civil unions should be accorded the same status as a marriage to avoid the association with domestic partnerships.

Kgosi Morwamoche supported the position raised by the Law Reform Commission. He proposed that the issue of intestate succession should also have been included in the proposal.

Ms Pienaar responded that intestate succession for domestic partnerships was included, due to the concern of the constitutional Court that the rights of people in such arrangements had to be catered for. Issues such as property division and maintenance should also be included.

Mr I Mfundisi (UCDP) stated that his party had objections to the addition of “or spouse” to the words “husband “ or “wife”. Marriage was a heterosexual as opposed to a homosexual concept. The Constitutional Court judges had not given a unanimous decision.

Mr Johan De Lange referred to the recent public hearings and noted that all gay and lesbian advocacy groups had supported the position that same-sex unions should be referred to as marriages, as opposed to civil unions. Therefore, a challenge was inevitable if same-sex unions were not granted the right to refer to their unions as marriages. The Constitutional Court had considered the Law Reform Commission submission when contemplating the matter of same-sex unions. The SALRC had put forward various options. One option was to create two separate Acts, being the Orthodox Marriage Act and the reformed Marriage Act. The existing Marriage Act would be renamed as the orthodox version but would not be changed otherwise. The reformed Act would be the new vehicle governing civil unions or marriages, which would be open to both same-sex and heterosexual couples. The Court stated that Parliament had to be careful not to provide a remedy that could produce new forms of marginalisation. The principle of separate but equal could lead to forms of discrimination. Proponents of separation would tend to justify the arrangement as part of a natural order or divinely ordained state of affairs. Members had to be aware that the best solution would not create a separate but equal scenario where new forms of marginalisation occurred. The Constitutional Court was of the opinion that one year had been ample time for Parliament to formulate an appropriate remedy as much work had already been completed by the SALRC.

Dr Linette Louw, Department of Justice, noted that the Court’s remedy that could become applicable on 1 December would amend the Marriage Act by reading in the word “spouse” so that the concept of marriage would be extended to same-sex couples. The SALRC had proposed that marriage should be accorded to same-sex unions. If the Marriage Act was not to be amended, then marriage must be provided to same-sex couples.

The Chairperson noted that the repeated word was “marriage” but he felt that still no clear definition existed.

Mr Mfundisi referred to the SALRC report where a proposal was made to create a new Orthodox Marriage Act that would apply to heterosexual couples only. The Constitutional Court had regarded the dual Act proposal as sound.

The Chairperson referred to the common law definition of marriage, which stipulated marriage between a man and a woman, and asked how the Bill could amend a common law definition that did not appear in the Marriage Act.

Mr de Lange noted that many legal concepts were defined in the common law. Some had been amended or clarified in other legislation. The common law definition of extortion had been amended in the past. The common law definition of marriage could be amended by, for example, including the word “spouse” as the Constitutional Court had stated it would do should there be no other legislation passed by 1 December.

Kgosi Morwamoche declared that defining marriage in the South African context was difficult due to various interpretations. For example, customary marriage had its own particular approach.

Mr F Beukman (ANC) reminded Members that their task was to legislate the framework that accorded rights to individuals. All possible arrangements could not be incorporated in legislation.

Mr S Swart stated that the Committee faced certain legal arguments of a constitutional nature. The Committee needed guidance on the constitutionality of the various proposals. The minority Constitutional Court judgement referred to the need to redefine the common law firstly and then include the word “spouse”. The majority judgement made no mention of the need to redefine the common law. Certain religious groups claimed that the default position where the word “spouse” was introduced would not assist the homosexual lobby as no redefinition of the common law would prevail. He felt that the Committee needed legal guidance on this issue.

The Chairperson stated that the Committee should not engage with the drafters but should debate the various party positions.

Ms Kalyan declared that the proposal to simply insert the word “marriage” as a means to accommodate all concerns was a regressive move. Clarity was sought on whether the Bill referred to a marriage or a union. She asked whether a marriage certificate would be issued and whether unions would be recorded in the Population Register as a marriage.

The Chairperson stated that parties should still caucus on the issues and consult where necessary. Legislation had to abide by the dictates of the Constitutional framework. Extensive public hearings had occurred in line with the Constitutional Court ruling.

Kgosi Morwamoche stated that the Civil Union Bill was the only proposal that to his mind fully addressed the Constitutional Court ruling.

The Chairperson stated that parties should finalise their positions so that final statements could be made at the meeting on the following day.

The meeting was adjourned.