Civil Union Bill: deliberations and finalisation

SOCIAL SERVICES SELECT COMMITTEE
27 November 2006
CIVIL UNION BILL: DELIBERATIONS AND FINALISATION

Chairperson: Ms J Masilo (ANC North West)

Documents handed out:
Civil Union Bill [B26B-2006]– as passed by this Committee
Summary of Public Submissions
Submissions objecting to the exclusion of plural marriages and cohabitation
Submissions calling for a Constitutional Amendment
Submissions in support of the Civil Union Bill
Submissions objecting on traditional grounds
Submissions objecting on religious grounds Part 1, Part 2, Part 3, Part 4, Part 5, Part 6 & Part 7
Submissions objecting on moral grounds Part 1, Part 2 & Part 3
Submissions calling for a national referendum
Submissions calling into question the democratic process followed
Submissions objecting on the grounds of negative impact on the family environment Part 1 & Part 2
Submissions objecting to the use of the word “marriage” Part 1 & Part 2
Commission on Gender Equality Submission
Report by Dr T Nkoebe: Is Homosexuality Genetic?

Petition indicating those for and against same sex marriages
Researcher’s report on the public submissions
Committee’s report on the Civil Union Bill
Committee’s report on the SADC Protocol on the Facilitation of the Movement of Persons

SUMMARY
The Committee met with the representatives from the Department of Justice and Constitutional Affairs, the Department of Home Affairs, the Office of the Minister of Home Affairs as well as the Office of the State Law Advisor to deliberate on the Civil Union Bill which was passed by the National Assembly on 10 November. The Committee made no amendments and the Bill was adopted with unanimous support from African National Congress, while the Inkatha Freedom Party and the United Christian Democratic Party opposed it. The Members from the Democratic Alliance, Independent Democrats and the United Democratic movement were absent from the meeting. The Bill would be debated in the National Council of Provinces on 28 November.

The Committee also agreed that that the SADC Protocol was desirable and would be reading a statement to that effect in the National Council of Provinces on the following day.

MINUTES
The Chairperson informed Members that Doctors for Life had on the previous Friday sent their submission to the Chairperson of the National Council of Provinces (NCOP) and had declined the invitation to present it to the Committee orally.

The Committee’s researcher, Ms Yolisa Nogenga, read a summary of the content of the submissions the Committee had received.

The Committee agreed that it would go through all the submissions that had been made to the Committee and requested the various departments’ to give responses. The Chairperson pointed out that it was important to recognise each submission so that those who had made them would not accuse the Committee of having disregarded their input.

Objection to the exclusion of plural marriages and cohabitation
Adv Deon Erasmus (Director Drafting and Legal Services: Department of Home Affairs) said that the drafting of the Bill was mainly based on what the Constitution provided for, as well as on the Constitutional Court ruling. Section 9(3) of the Constitution read that the State may not unfairly discriminate against anyone for any reason including sexual orientation. The Constitutional Court’s ruling said that legislation for same sex marriages had to be drafted or else the common law definition of marriage and Section 30(1) of the Marriage Act (1961) would be amended. Provisions for plural marriages fell under the Recognition of Customary Marriages Act. If provisions related to it were to be challenged, those challenges had to be dealt with separately.

Ms F Mazibuko (ANC Gauteng) said that issues such as cohabitation and customary marriages also had to be considered. She wondered whether all different types of marriages would at some stage be accommodated in one piece of legislation. Making amendments would then be made much easier.

Adv Erasmus agreed that there was space for the reform of South Africa’s marriage regime. He said that political guidance would be necessary in order to take such a step. Currently the trend was to try and address issues related to the family dispensation in South Africa through the Marriage Act, the Customary Marriages Act and the proposed Civil Union legislation.

He pointed out that one of the basic rules of drafting legislation was that one kept on amending it until the point where this was no longer possible and it was repealed. The Marriage Act of 1961 thus still relevant despite the fact that it had its origin in the Apartheid era. The South African Law Reform Commission (SALRC) would also have a role to play.

Thinking out loud he said that one could perhaps have one marriage act that dealt with all the different marriage regimes with a definition of marriage under each chapter. This matter would however still have to be decided by the political heads.

He reminded members that if the legislation was not passed the default position i.e. the Constitutional Court judgment would come into play and the necessary amendments to the Marriage Act would be made.

Submissions calling for a Constitutional Amendment
Adv Erasmus reminded members that the drafters had been guided by the 8 guiding principles the Constitutional Court Judgment had laid down.

Mr M Sulliman (ANC Northern Cape) pointed out that the amendment of the Constitution did not fall within the ambit of the Committee.

Mr Johan de Lange (Director Legislation: Department of Justice and Constitutional Development) informed members that there had indeed been a private members’ proposal to amend the Constitution. Mr A Swart of the African Christian Democratic Party (ACDP) had submitted the request which was now officially being dealt with by the Joint Committee on Private Members’ Proposals and Petitions.

Submissions in support of the Bill
Mr B Tolo (ANC Mpumalanga) referred the representatives to the Joint Working Group’s (JWG) objection to clauses 5 and 6 of the Bill. They objected to the fact that ministers of religion could not, without the sanction of their denominations, solemnise same sex marriages.

Adv Erasmus explained that if one would appoint just anyone to do solemnisations there would be no way of regulating it. One thus had to determine whether someone formed part of a denomination or an organisation. This would also ease the administrative burden.

Mr Tolo wondered whether the Department had considered the JWG’s concern that if a person was no longer a minister in a particular church he or she could no longer be a marriage officer.

Adv Tsietsi Seblemetsa (DHA: Deputy Director Legal Services) responded that the basic principle was that one first became a religious minister and then one could become a marriage officer. Once one stopped being a minister one could no longer be a marriage officer.

Mr Tolo commented that one would expect the Church to be united on this matter but that did not appear to be the case.

Adv Seblemetsa said that there were those churches who were wiling to solemnise same sex marriages. He added that if the DHA or Government were to enter into the debate within the Church they would be entering into a field that was not their own.

Ms F Mazibuko (ANC Gauteng) wondered whether the Department was not going too far in their attempt to regulate what the Church did. She had thought that Churches were free to do whatever they wanted as long as what they did were within the confines of the law.

Ms J Vilakazi (IFP KwaZulu Natal) agreed and declared that churches listened to God and not to people. The Department was not bigger than God.

The Chairperson pointed out that the Department of Home Affairs had indicated that the activities of churches did not fall within their terrain and that they could not be expected to respond on questions related to churches or faith based organisations.

Adv Erasmus explained that if a denomination wanted to allow its ministers to solemnise same sex marriages they could apply to the Minister of Home Affairs for permission. In terms of Section 2 of the Marriage Act religious ministers were designated marriage officers. He emphasised that the Department was not encroaching on the activities of the church but pointed out that if denominations wanted to apply to conduct same sex marriages there had to be a procedure in place for them to do so.

He explained that solemnisation and registration of civil partnerships under the proposed legislation would only be conducted by a marriage officer in state employ. Provision was however also made for a marriage officer in state employ to inform the Minister in writing if he or she objected on grounds of conscience, religion or belief to solemnising a civil union between persons of the same sex. He or she would then not be competent to solemnise such a union.

Adv Erasmus said that Judge Sachs had ruled that the principle of reasonable accommodation could be applied by the State to ensure that civil marriage officers who had sincere religious objections to officiating same sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience. Judge Sachs continued by quoting the Constitutional Court findings in the Christian Education South Africa vs. the Minister of Education case: the court held that the underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom had to be regarded with appropriate seriousness was how far such democracy could and had to go in allowing members of religious communities to define for themselves which laws they would obey and which not. Such a society could cohere only if all its participants accepted that certain basic norms and standards were binding. Accordingly believers could not claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time the State should wherever reasonably possible seek to avoid putting believers through extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law. Adv Erasmus pointed out that Clause 6 was drafted to be in accordance of these findings.

Mr Tolo felt that Members should be given the opportunity to pose any questions so that they could feel confident that all their questions had been answered to their satisfaction. He urged the representatives present to assure him that the clause was not discriminatory.

Mr J Thlagale (UCDP North West) said that he was not sure what Mr Tolo was saying. The discussion was about civil unions and not any other marriages. Those were not relevant to what was before the Committee. He added that the Committee had engaged with all the presenters already and now it appeared as though members were once more debating issues that had already been explored.

The Chairperson said that Members were not debating but getting input from the representatives.

Mr T Setona (ANC Free State) suggested that members refrain from philosophical and political arguments and to focus on the legalities. The political and philosophical debate could be conducted amongst themselves and with the political heads of the departments. He said that a political choice had been made. One had to reach a balance. Those who were opposed to the legislation would not be able to be convinced by any lawyer.

Mr de Lange cautioned members to not confuse matters. The Committee was dealing with same sex marriages only. The Department could rely on the fact that the Constitutional Court had specifically authorised the approach that had been taken. He admitted that other marriages were also relevant but pointed out that they had been dealt with in the other pieces of legislation.

In response to Rainbow UCT’s concerns that Clause 6 might not be compatible with Section 9(3) of the Constitution, Adv Erasmus reiterated that the Constitutional Court had given specific guidance in the drafting of the clause. He felt that the availability of marriage officers was an administrative issue that could not be dealt with in the legislation.

Objections on traditional grounds
Adv Erasmus again referred members to Section 9 of the Constitution and the Constitutional Court Judgement which guided the Department in the drafting process.

Objections on religious grounds and Objections on moral grounds
Adv Erasmus noted that everyone had the right to freedom of religion etc. The Constitutional Court’s ruling had clearly indicated the need for legislation that would provide same sex couples with the same rights and privileges that other heterosexual marriages enjoyed.

Calls for a national referendum
Adv Erasmus explained that the Department had no control over whether a referendum was called or not.

Ms Vilakazi said that many people opposed the Bill. She wondered why, since the matter was very sensitive and had provoked so much public debate and interest, a referendum had not been held in the first place.

Mr Sulliman realised that Parliament could not call for a referendum. He sought clarity on whether only the Executive was able to do so.

Adv Aisha Jehaan (Office of the State Law Advisor) clarified that according to Section 84(2)(g) of the Constitution only the President could call a national referendum in terms of an act of Parliament.

Mr Setona recalled that when members were sworn in they declared that they would serve the people of South Africa with faith, trust and integrity, and would above all uphold the Constitution at whatever cost. People who opposed the Civil Union Bill had a recourse – they should consider who were in favour of the Bill and supported its passing and not vote for those parties during the next election.

He added that there were many issues related to the Constitution, particularly the Bill of Rights that had divided the country in the past. Referendums had not been called in those instances. He agreed that people had the right to voice their opinions, but pointed out that Parliamentarians were compelled to do what they got paid for i.e. uphold the Constitution.

Ms N Madlala-Magubane (ANC Gauteng) reminded members that the Committee was meant to listen to the different representatives’ opinions as far as the submissions were concerned, and not to debate the Bill.

Objections as far as process followed
Adv Erasmus wondered why questions had been raised around the democratic process that had been followed. He pointed out that public participation had been extensive - public hearings had been held throughout the provinces as well as in the NCOP and the National Assembly. He suspected that because the majority of South Africans appeared to be against the proposed legislation many felt that the process was not democratic. He pointed out that the choice of the majority did not always prevail; the Constitution was the supreme law of the country and everyone had to abide by it.

Objections on the grounds of negative impact on the family environment
Adv Erasmus said that these objections could not be entertained from a legal perspective because they operated on another level. He again referred members to Section 9(3) of the Constitution which said that the State could not discriminate directly or indirectly against anyone on one or more grounds including sexual orientation. All objections had to be evaluated in terms of the Constitutional Court’s ruling as well as the Constitution particularly the Bill of Rights and whether one was in compliance of it and in this case minority views were in greater accordance with the Constitution.

Adv Herman Smits (Office of the State Law Advisor) added that there had already been a case in which the Constitutional Court had found that same sex couples could adopt children. Adoption was a substantive issue and the rule was always that one had to act in the best interest of the child.

Objections to the use of the word “marriage”
Adv Erasmus pointed out that the Department had wanted to keep the proposed civil union legislation in line with the equality clause. Clause 11 of the Bill provided a choice between calling the union a civil partnership or a marriage. This was also done in an attempt to comply with the Constitutional Court ruling. He explained that civil union was defined in the legislation. The terms “marriage” and “civil partnership” were the two ways of registering a civil union.

Report by the Commission on Gender Equality
Ms Lorette Louw (DOJ&C Legislation) said that the Commission had had two concerns. They were firstly concerned that there were still other religious marriages that were not covered by the proposed legislation. She said that the Department of Home Affairs would look into these categories of marriage at a later stage.

Their second concern was that the proposed legislation could be seen as a separate but equal approach. The Department of Justice and Constitutional Affairs did not agree with this view. Even the State Law Advisor’s office had endorsed the constitutionality of the latest version of the Bill. The Constitutional Court felt SALRC’s suggestion of a reformed as well as an orthodox act was a solid approach. The fact that one granted same sex couples marriage via a separate piece of legislation did not mean that they fell under a separate regime.

Report by Dr T Nkoebe: Is Homosexuality Genetic?
Mr Setona thought it necessary that South Africans be educated in terms of the role Parliament played. He though that such public education was fundamental. Parliamentarians could not be asked whether homosexuality was genetic or not. This question was part of an unresolved discourse. There as no agreement as to what the origin of homosexuality was.

Adoption of Bill
Ms Mazibuko was concerned that “partnership” had not been defined. She also sought clarity on Clause 8 which said that a person could only be a partner in one marriage or civil partnership at any given time and wondered what would happen if that person took a second or third partner. Ms Mazibuko wondered why it was necessary to put a date to when the legislation would come into operation. She was concerned about what would happen if the date of 30 November was not adhered to.

Mr Setona objected on a procedural point of order. He said that the debate had already been exhausted and that the Committee was at the last stage of their deliberations and pleaded with members to raise any other concerns they had with the Department after the meeting. The previous week the Committee had made a harsh ruling against a member of the opposition who had wanted to raise matters that had already been discussed. He emphasised that the merits of the Bill could not be discussed in the last stage of the deliberations.

Mr Tolo agreed that the Committee had already met with the different stakeholders to get clarity on certain issues.

The Chairperson concurred and said that members had been given the opportunity to raise all their questions. That process could not be revisited in the adoption stage.

The Committee agreed to the motion of desirability and then proceeded to adopt the Bill: the ANC supported it unanimously, while the UCDP and the IFP opposed it. The other opposition parties’ members were not present.

Committee Report on Civil Union Bill
The Chairperson read the Committee’s report on the Civil Union Bill.

Committee Report on the SADC Protocol on the Facilitation of Movement of Persons
The Chairperson read the Committee’s report on the protocol. Mr Tolo speaking on behalf of the Committee said that the protocol was desirable. The Chairperson reminded members that their statement would be read in the NCOP on the following day but that there would be no debate.

The meeting was adjourned.