Civil Union Bill: briefing by Department of Home Affairs

SOCIAL SERVICES SELECT COMMITTEE
21 November 2006
CIVIL UNION BILL: BRIEFING BY DEPARTMENT OF HOME AFFAIRS

Chairperson: Ms J Masilo (ANC)[North West]

Documents handed out:
Department of Home Affairs presentation on Civil Union Bill
Civil Union Bill [B26B-2006]

SUMMARY
The Committee was briefed on the Civil Union Bill. The purpose of the Bill was to provide for the solemnisation and registration of civil unions by way of either a marriage or civil partnership and to provide for the legal consequences thereof.

Responding to a question why the Department had introduced the Bill, the Department said that several studies were conducted in order to see how to address issues raised in the Constitutional Court judgment. The Civil Union Bill was the most suitable response the judgment. Legally there was no difference between a civil union and a marriage. The Bill would simply allow parties to choose whether to call their union a marriage. The legal consequences would be the same.

Questions raised by the Committee included the following:
- Why the Department was having a separate legislation called the Civil Union Bill. What was wrong with amending the Marriages Act? There was also the Recognition of Customary Marriages Act. At what time would the Department put all legislation dealing with marriages together?
- How civil unions could be expected to subsist if they would not be able to procreate. Would the Bill not allow a situation wherein poor people would be taken advantage of in that they would be forced to give their children to people who could take them and raise them as their children?
- Whether a person married in terms of religious laws would be able to be part of a civil union.
- Whether the Bill complied with the Constitutional Court judgment
- How the Department had arrived at the conclusion that people might want to stay together, prefer to have all consequences of marriage apply to the but not want to call themselves married couples.

MINUTES
Ms Jayshree Naidoo, Adv. Y van Aswegen and Mr T Simelametja (all from the Legal Services unit), represented the Department.

The Chairperson welcomed everybody to the meeting. She said that the Constitutional Court had made a ruling in December 2005 and the ruling was presented to a Cabinet Committee in 15 August 2006. It approved it on 23 August 2006 and the Department complied with all rules on 1 September 2006. A presentation was made to the Portfolio Committee on Home Affairs on 6 September 2006. Public hearings were conducted from 20 September to 13 October. The Portfolio Committee voted on the Bill on 10 November and the Second Reading of the Bill took place on 14 November. The Bill was referred to the Select Committee on Social Services on 15 November. There would be public hearings on the 23 and 24 November where written and oral submissions would be expected. The public hearings were advertised in newspapers.

Ms van Aswegen made the presentation. (See document attached). She briefed the Committee on the Bill clause by clause. The purpose of the Bill was to provide for the solemnisation and registration of civil unions by way of either a marriage or civil partnership and to provide for the legal consequences thereof.

Discussion
Ms F Mazibuko (ANC)[Gauteng] asked why the Department was having a separate legislation called The Civil Union Bill. What was wrong with amending the Marriages Act? There was also the Recognition of Customary Marriages Act. At what time would the Department put all legislation dealing with marriages together? Clause 6 provided that a marriage officer could object to solemnise a civil union on grounds of conscience, religion and belief. At what stage could the officer register his or her objection and to whom should such an objection be registered? Clause 7 provided that the parties to the civil union should produce identity documents before the union could be solemnised. She asked if the parties had to be present when the documents were present.

Ms Naidoo replied that several studies were conducted in order to see how to address issues raised in the judgement. The most suitable was the Civil Union Bill because it was most suitable to respond to the judgement. A person could object to solemnise sex same union at the time of appointment as a marriage officer. Such an objection should be lodged with the Minister in writing. Parties would have to be present when their identity documents were produced.

Mr Simelametja replied that people who had applied to be registered as marriage officers in terms of this Bill would not be allowed to object to solemnising civil unions. Only a marriage officer, other than the one referred to in clause 5 could object.

Mr J Tlhagale (UCDP)[North West] said that one fundamental requirement in marriages was that a marriage should be able to procreate. The country had seen family disintegrating because they had not produced children. He asked how the union could be expected to subsist if they would not be able to procreate. Would the Bill not allow a situation wherein poor people would be taken advantage of in that they would be forced to give their children to people who could take them and raise them as their children?

Mr N Hendricks [Western Cape] said that clause 8 referred to people who were already married in terms of the Recognition of Customary Marriages. There were religious marriages that were not recognised by State and many people, especially in the Muslim communities, were married in terms of religious laws. He asked if a person married in terms of religious laws would be able to be part of a civil union. How would the Bill deal with objections by a divorced spouse who would now see a former partner who had been granted custody of children born under the marriage just about to be a party to a civil union? Would they have to go through court procedures? He also asked what two competent witnesses meant.

Ms Naidoo replied that parties to legally recognised marriages could not enter to a civil union while the other marriage still subsisted. People who were parties to a marriage in terms of the Recognition of Customary Marriages Act could not be parties to a civil union at the same time. The overhauling of religious marriages was also a priority for the Department but a study first had to be conducted to analyse the needs of all denominations.

Ms van Aswegen replied that children were dealt with in the Children’s Act but the Act was not yet in operation. The Act contained a section that dealt with children in same sex marriages. The adoption of children was already legal.

Mr B Tolo (ANC)[Mpumalanga] said that the Committee should not start looking at the merits of the Bill. The purpose of today's meeting was just to take a briefing from the Department. It would have opportunity to engage on the finer details at a later stage. He asked the State Law Advisors if the Bill complied with the Constitutional Court judgement. Clause 13 was about the legal consequences of a civil union and the consequences would be similar to those that applied to people married in terms of the Marriages Act. He asked why the Department did not simply use same terminology if the consequences were the same.

The Chairperson agreed that the agenda of the meeting was a briefing by the Department. There would be deliberations at a later stage.

Mr M Sulliman (ANC)[Northern Cape] asked for clarification on the financial implications for the State. The Bill provided that there would be financial implications with regard to the development of new registration systems and forms pertaining to civil unions. Was there costing done on the Bill? The Department was supposed to cost the Bill if it would have financial implications. Would the Committee be in a position to finalise the Bill if no costing had been done?

Ms Naidoo replied that the costs were limited to printing forms and training. The costs could be accommodated in the departmental budget. There were be no major systems changes and systems had already been amended to accommodate civil unions. The costing of the Bill was dealt with in terms of the current budget.

Mr Sulliman said that the question was whether on not the Bill had been costed.

Ms Naidoo replied that it had been costed.

Ms J Vilakazi (IFP)[KwaZulu-Natal] said that some of the comments by Mr Tolo were infringing the freedom of speech. Members should be allowed to speak freely for the majority of voters. The preamble to the Bill provided that "the family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and benefits couples with responsibilities that a marriage accords to opposite-sex couples". Corruption was so high in the country. Would the Bill not further promote corruption? Public hearings were conducted in all provinces and none of the provinces had agreed with the Bill. The Bill was being fast tracked without any amendments to the benefits of the majority of the people.

Mr T Setona (ANC)[Free State] said that the Committee might have to review some of the practices or conventions of dealing with Bills so that Members could not be seen as suppressing debate and discussion on the Bill. Nobody can have the confidence to say that they were representing the masses more than the African National Congress. The Committee should enter into discussion acknowledging and recognising the polarisation that existed in the society. The reality was that the problem arose from the supreme law which was the Constitution. There were two options on how to deal with the present issue. The first was for the State to undermine the Constitution and submit to popular views. What would be the implications of undermining the Constitution and what kind of precedent would such a move set? Nobody could claim to be more cultural than the next person. All people had evolved through different cultural formations. There was a need for a more robust debate on the issue so that some of the views could not be seen as sacrosanct. He asked what was the rationale for the Department to define civil union and civil union partner but not a civil union partnership. Could the Department distinguish between a marriage and a civil partnership in the context of the Bill? The Committee should not be blinded into passing the Bill while some issues remained unclear. It was important to have a clear understanding of the consequences of passing the Bill.

Ms Naidoo replied legally there was no difference between a civil union and a marriage. The Bill would simply allow parties to choose whether to call their union a marriage. The legal consequences would be the same.

Ms S Madlala-Magubane (ANC)[Gauteng) asked the Department to clarify the meaning of "two competent witnesses" referred to in clause 10. A person could drag anyone from the street to act as witness. Clause 14 provided for a penalty for solemnising a civil union without authorisation. She asked who did the authorisation. The clause also penalised the making of any false statement or representation knowing it to be false. She asked how the Department would find out if the representations or statements were false.

Ms Naidoo replied that false representations would be picked up by the system. For example, the system would be able to indicate if a party to a civil union was already a party to a marriage. Witness had to be competent in terms of the common law. They should be majors and be able to understand the nature of the act to which they were consenting.

Mr Mazibuko asked the Department to clarify the meaning of clause 14(3).

Mr Simelametja replied that the clause meant that a person who had done anything contrary to the legislation knowing that it should not be done would be guilty of an offence.

Mr Sulliman said that clause 5(1) provided that "any religious denomination or organisation may apply in writing to the Minister to be designated as a religious organisation that may solemnise marriages in terms of this Act". He asked what was an organisation for the purposes of the clause.

Ms Naidoo replied that a denomination was almost like religious sect as opposed to a small organisation.

The Chairperson asked for more clarification on clause 3.

Mr Simelametja replied that the Bill would not apply to any other kind of relationship other than a civil union as defined in terms of the Bill.

Ms H Lamoela (DA)[Western Cape] asked how the Bill would affect the rights of children. She cited an example of a mother who was divorced and wanted to get into a civil partnership. She also asked the State really had a duty to give recognition to same sex relationship.

Ms Mazibuko asked if the issue of cohabitation was also covered. How will anti-nuptial contracts have a bearing on civil union?

Ms Naidoo replied that co-habitation was not covered in the Bill. It would cover anti-nuptial contracts because it had a bearing on all the legal consequences of a marriage in terms of the Marriages Act.

Ms Setona asked how the Department had arrived at the conclusion that people might want to stay together, prefer to have all consequences of marriage apply to the but no want to call themselves married couples. There were many people who were staying together but were not married.

Ms Vilakazi agreed with Ms Mazibuko and Mr Setona. People could cohabitate until death. Why were such people not included in the Bill? They were also partners. The Bill was being fast tracked with many loopholes.

Ms Naidoo replied that the Bill contained a clause that dealt with domestic partnership when it was presented to Cabinet. The clause had since been deleted following the consultation process that the Portfolio Committee had conducted. A new Bill to deal with cohabitation would be introduced at a later stage.

Mr Tolo agreed that there were people who were cohabiting. The Bill did not deal with this. The Department initially wanted to deal with this issue but realised that the Bill was going to be very big. Dealing with the issue of cohabiting in the Bill would not have responded to the Constitutional judgement. It was important to protect people involved in such relationship. There was a need to have a Bill to address such issue at a later stage.

Ms Mazibuko raised a point of order. She said that Members of the Committee were posing questions to the Department. They could not be expected to deal with legislation that they did not understand. Mr Tolo could not speak for the Department because he was not a spokesperson for the department. He should allow the Department to respond to questions posed. Members of the Committee would be expected to go out and respond to questions from the public on the Bill. How will they answer questions on something that they did not understand?

The Chairperson said that the Committee would debate on 27 November 2006.

Mr Tolo asked the Chairperson to make a ruling on whether to debate on the Bill today. There were procedures and conventions on how to deal with the Bill. The procedure was that the Committee should take the briefing from the Department and deliberate at a later stage. He noted that that some members were insisting on a debate. He appealed to members not to play to the gallery.

The Chairperson said that the programme indicated that the purpose of the meeting was to take a briefing and allow for clarity seeking questions. The Committee would deliberate on Monday next week.

Mr Setona said that some of the issues were ideological and positional. The Department could be allowed to take the Committee through the Bill clause by clause. The Committee could then have preliminary discussion on the substance of the Bill. The African National Congress was not afraid of the debate but members should distinguish between debate amongst themselves and debate with the Department. Without undermining the delegation, he said that a legal officer could not respond to some of the questions. He had thought that at least the Deputy Director General would attend the meeting.

Ms Vilakazi supported Mr Setona.

The Chairperson said that the Committee had not received an apology from the head of the Department. It seemed that the Department was not ready to respond to the questions raised.

Mr Hendricks used an a example of a divorced wife who had been granted custody of the children. The wife might want to enter into a civil union with another woman. The father of the children might object to the marriage on religious grounds and the Bill made no provision for the father to object.

Mr Setona said that Mr Hendricks' objection was based on religion. He asked what would happen if the woman was getting married to a man who held a belief or religion that was totally different to the one held by her former husband.

Ms Vilakazi asked if the Department had taken the concerns of the provinces into account.

Ms Naidoo replied that the inputs from public hearings were taken into consideration by the Portfolio Committee. The removal of domestic partnerships was as a result of submissions during the hearings.

Mr H Smuts (State Law Advisor) said that the Chief State Law Advisor had indicated that the Bill addressed the issues raised in the judgement.

Mr J de Lange (Department of Justice) said that the Committee should not loose track of the fact that it had a Constitutional Court judgement to deal with. The introduced Bill had a long Chapter on domestic partnerships but such partnerships were not covered by judgement. There were two judgements and one dealt civil domestic partnerships and the other with same sex unions. The problem was that the same sex partnership judgement had a deadline. The National Assembly had decided to focus on same sex partnerships. The State had a duty to recognise same sex unions. The Constitutional Court had amended the common law. Clause 13 amended the definition of marriage in the common law.

One of the most important amendments made to the Bill was that the National Assembly had made the Bill applicable to heterosexual partners as well. The end product was an extension of the whole marriage regime. It would allow people to enter into marriages in terms of the Marriages Act or into civil union or marriages in terms of the Bill. The Marriages Act had been left intact in order to balance the interests of religious communities. The Bill would create a new regime that was completely equal to Marriages Act regime.

Mr de Lange said that the Bill did not deal with children. The adoption of children partly was dealt with in terms of common law. A point had been raised about a couple divorcing and one of the parties getting involved in a same sex union. Custody of children was a different matter altogether. The court would normally make an order taking into account all surrounding circumstances. It could vary the order should circumstances change. Civil partnership would have similar consequences as marriages. The Marriages Act did not define a marriage.

Ms Mazibuko was worried that it seemed that the Committee was doing something just to satisfy the Constitutional Court ruling. The Committee should get an extrapolation of the ruling so that it could check the issues properly.

The Chairperson said that the Committee should be briefed on the court ruling.

Mr de Lange said that his Department would provide to the Committee with the court judgement. It should be clear that the Bill did not affect common law and customary marriages. It only affected them by saying that people who were parties to such marriages could not be party to a civil union or marriage in terms of the Bill whilst that other marriage was still subsisting. The rationale for the legislation was to provide for an opportunity for people who could marry to do so and not to affect anything else.

Mr Setona said that people could read the judgement and come up with different interpretations and perspectives. He said that he had the privilege of sitting with three lawyers from his party. The meeting was scheduled for two hours but lasted for four hours. What was important was for Parliament to pass the Bill by 1 December in order to satisfy the court judgement. The court did not prescribe what would be considered to be constitutional. It only provided that there was a constitutional obligation to recognise same sex marriages.

Ms A Qikani (ANC)[Eastern Cape] said that a marriage was between a man and a woman. The Bill would allow people of the same sex to get married. She asked who would inform the public that a person who was a man or woman had become a woman or man.

Mr Setona said that the Bill was not about sex change. He was not sure if there would be a Bill to one deal with such an issue.

Ms Qikani asked who would pay lobola because the parties would be of the same sex.

Mr Tolo said that it would be very unfair to expect the Department to respond to the question raised by Ms Qikani. South Africa knew what discrimination could cause. He appealed to members who wanted the country to continue to discriminate against other people to clearly indicate that they wanted to do so. People had fought for the country to be in the current position and people of different sexual orientation had taken part in the fight. There was a tendency for people to impose their own morals on other people and this was very wrong. The Bill would not force anyone to marry a person of the same sex. People who wanted to marry people of the same sex should be allowed to do so. The Constitution provided that there should be no discrimination on sexual orientation. One could not go back and change the Constitution because of this issue because every little disagreement would mean that the Constitution should be amended. There was the danger that people would say that the African National Congress did not respect the Constitution. The issue under discussion was the same as the choice on termination of pregnancy.

Ms Lamoela agreed that SA was a constitutional State but reminded the Committee how it had discriminated in the Older Persons Bill when it came to the ages of 60 and 65. It was agreed that the discrimination was fair. There might be a need to review that discrimination in light of the current discussion.

Ms Vilakazi said that all Members knew about the Constitution and respected it. There was no need to emphasis it on daily basis. People should know who was going to be a Mr and a Mrs before the parties walked down the aisle.

Mr Setona said that one would be naïve to say that the questions that were being raised should not be raised. The questions were legitimate but not necessarily the direction that the country should take. He said that his nine years daughter had asked him questions about the Bill. He could not convince her to share his understanding or perspective on the Constitution. The question was what came first between the Constitution and the law. One might ask why not simply change the Constitution if the problem was in the Constitution. Political parties had negotiated the Constitution unlike the Constitutions of other countries that were products of blood. There was a call for cease-fire so that there could be negotiation. People had pride in the Constitution.

He said that some people had said that the African National Congress should not get the majority in Parliament because it would use its position to undermine the minorities. It had been said that it would amend the Bill of Rights and the property clause in particular. The party had never dreamt of changing the Bill of Rights. The Bill was not premised on some academic research in universities. It was about reality and there were gay and lesbian people all over the country. It was true that gays and lesbians were in the minority but the country had protected other minorities. The Constitution Court had made a ruling that there should be a legal framework to recognise same sex marriages. It was not important to define who would become a man or a woman after the union. There was no way that the country was going to submit to a particular religion at the expense of the other. The Bill was a test to the African National Congress. There were parties who had always said that the government should respect the courts but such parties were today telling their members to vote by conscience. No political party would tell its member to vote by conscience if the African National Congress was to say that it was going to amend the property clause.

Mr Hendricks raised a point of order. He felt that Mr Setona's points were beside the issue under discussion. Mr Setona was now debating on the merits of the Bill.

Mr Setona said that the Committee had agreed that there could be a debate on the merits of the Bill. The Bill was a test to the African National congress and the party had passed it. It would go back to its constituencies and explain all issues so that they could understand the obligations. People should not impose their religious or religious values on other people. The two-third majority votes that the African National Congress received during the elections included votes by gay and lesbian people.

The Chairperson said that she had explained the Bill to born again christians in a church in Mabopane and they understood it.

Mr Hendricks said that members should understand that no man-made Constitution could be cast on stone. One was dealing with natural laws and right and wrong. Some members of the Committee had argued that people should not impose their moral values on others but the truth was that people build on moral values. The chickens were coming back to roost in the country because of lack of moral values. It was problematic to say that the country should do wrong things simply because it was a secular State.

Mr Tolo asked what was natural law. He encouraged people to read Engels on the origin of a family. Families started at a certain time in history. The African National Congress was aware that people were opposed to the Bill but the party had an obligation to lead them and not to tail them.

Mr Sulliman said that people should not lose sight of the fact that the government had been taken to court and a ruling was made. All Members understood the justice system. Parliament had created Constitutional Court and it should uphold its decisions. Any parties opposed to the judgement should indicate their opposition. The Bill came as a direct result of the judgement.

The Chairperson invited the Committee to take the Committee through the Bill clause by clause.

Mr Tolo said that the agenda of the meeting was a briefing by the Department. He proposed that clause by clause deliberations should take place on Monday. The Chairperson agreed.

The meeting was adjourned.