Ms B Mbete
Speaker of the National Assembly
PARLIAMENT OF THE
FAX: 021 461 9462
Dear Madam Speaker
SUBMISSION OF LEGISLATIVE PROPOSAL: CONSTITUTION OF THE
Kindly find attached hereto a copy
of the memorandum required in terms of Rule 234(1) pertaining to the
Constitution of the Republic of South Africa Sixteenth Amendment Bill, which I
intend introducing in the Assembly in my individual capacity for purposes of
obtaining the Assembly’s permission in terms of Rule 230(1).
I submit that the attached
memorandum conforms to the requirements as set out in the above-mentioned Rule.
You are requested to table the
memorandum in the National Assembly as required in terms of Rule 234 as well as
to refer it to the Committee for Private Members Legislative Proposals and
Special Petitions.
As you are aware, legislation must
be passed by parliament by 1st December 2006 in terms of the
Constitutional Court decision in the matter of Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality
Project and Others v Minister of Home Affairs 2006(1) SA 524 CC (the Fourie-case). I
understand that the
Civil Union Bill, 2006, will be tabled shortly.
There is huge public interest in constitutionally protecting
the traditional view of marriage from legislative or judicial challenge, as
proposed in the attached memorandum. To affect such a constitutional amendment
not only requires various steps as set out in the Rules, but additionally
Your urgent attention and assistance
in expediting this matter will thus be greatly appreciated.
Yours faithfully
MR STEVEN SWART MP
AFRICAN CHRISTIAN DEMOCRATIC PARTY
____________
THE CONSTITUTION SIXTEENTH AMENDMENT BILL, 2006
_________
(As introduced in the National Assembly as a section 74 Bill)
(The English text is the official text of the Bill)
____________
(MR S N SWART,
MP)
[B…..---- 2006]
GENERAL
EXPLANATORY NOTE:
[ ] Words in bold type in square brackets
indicate omissions from existing enactments.
_________________ Words
underlined with a solid line indicate insertions in existing enactments.
________________________________________________________________________
BILL
To amend the Constitution of the
BE IT ENACTED by the
Parliament of the
Amendment of section 39 of Act 108 of 1996
1. Section 39 of the
Constitution of the
“(4) The Constitution
shall be interpreted to mean that a marriage is a voluntary union of a man and
a woman.”
Short title
2. This Act shall be called
the Constitution Sixteenth Amendment Act, 2006.
MEMORANDUM
ON THE OBJECTS OF THE CONSTITUTION OF THE
1.1
The Constitutional Court, in the matter
of Minister of Home Affairs v Fourie (Doctors for
Life International and Others, Amici Curiae); Lesbian
and Gay Equality Project and Others v Minister of Home Affairs 2006(1) SA 524
CC (the Fourie-case), declared that the definition of
marriage under the common law and the marriage formula as set out in section
30(1) of the Marriage Act, 1961 (Act No. 25 of 1961), were inconsistent with
the Constitution and invalid to the extent that they failed to provide the
means whereby the same-sex couples could enjoy the status and the benefits
coupled with the responsibilities that marriage accorded to heterosexual
couples. The Court ordered Parliament to correct these defects in the law by 1
December 2006, failing which section 30(1) of the Marriage Act, 1961 (Act No.
25 of 1961) will be read as including words “or spouse” after the words “or
husband”.
1.2
The Constitutional Court made it very
clear that a remedy that on the face of it would provide equal protection, but
would do so in a manner that in its context and application would be calculated
to bring new forms of marginalisation – a concept of separate but equal – would
be unacceptable.
1.3
Accordingly, the constitutional
amendment as proposed is the only means of protecting the common law definition
of marriage and the marriage formula as set out in section 30(1) of the
Marriage Act, 1961 (Act No. 25 of 1961).
2. OBJECTS OF
THE BILL
The objects of
the Bill are to amend the definitions clause in Chapter 2 of the Constitution
of the
3.
DEPARTMENTS/BODIES CONSULTED
The Marriage
Alliance of South Africa was consulted.
4. IMPLICATIONS
FOR THE PROVINCES
There are no
financial implications for the provinces.
5. FINANCIAL
IMPLICATIONS FOR THE STATE
There are no
financial implications for the State.
6.
PARLIAMENTARY PROCEDURE
The opinion is
held that the Bill must be dealt with in accordance with the procedure
established by section 74(2) of the Constitution since it contains an amendment
which seeks to amend chapter 2 of the Constitution.