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.