ATC200612: Report of the Select Committee on Security and Justice on the Civil Union Amendment Bill [B11B-2018] (National Assembly – sec 75), dated 11 June 2020.

NCOP Security and Justice

Report of the Select Committee on Security and Justice on the Civil Union Amendment Bill [B11B-2018] (National Assembly – sec 75), dated 11 June 2020.

 

The Select Committee on Security and Justice, having considered the Civil Union Amendment Bill [B11B – 2018] (National Assembly – sec 75), referred to it and after revival in the Council on 17 October 2019 and classified by the JTM as a section 75 Bill, reports that it has agreed to the Bill and reports as follows:

 

1. Background

 

The Civil Union Act, 2006 (Act No. 17 of 2006) (‘‘the Act’’), was enacted as a result of the Constitutional Court decision in Minister of Home Affairs v Fourie 2006 1 SA 542 (CC). The Constitutional Court ruled that it was unconstitutional for the State to provide the benefits of marriage to opposite-sex couples whilst denying them to same-sex couples. This infringed the right to equality before the law and the right not to be discriminated against by the State on grounds of sexual orientation.

 

The purpose of the Bill is to repeal section 6 of the Act, which allows a marriage officer to inform the Minister that he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex.

 

1.  Public participation process on the Civil Union Amendment Bill

 

The Committee took a resolution, to involve the public and called for written submissions on the Bill. The Committee placed the advertisements on electronic platforms calling for written submissions on the Bill from 05 November to 06 December 2019. 

 

 

 

1. Summary of Submissions

 

The Committee received a total of 325 submissions from organisations and individuals either in favour or against the amendment Bill. Those in favour argue, in the main, that marriage officers as employees of the State should marry same-sex couples. Those not in favour argue, in the main, that marriage officers should also be able to exercise their religious beliefs.

 

The following organisations submitted written submissions which are not in favour of the Bill:

1. Gayo Communities International;
2. Limpopo Council of Church Elders;
3. Christian View Network;
4. Hart van God ministries;
5. Full Gospel Church of Southern Africa/Lede in Christus Kerk;
6. Freedom of Religion South Africa;
7. Cause for Justice; and
8. Family action SA.

 

In addition to the aforementioned organisations, the Committee received submissions from 156 individuals who are not in favour of the Bill.

 

The following organisations submitted written submissions which are in favour of the Bill

1. Cape Town Progressive Jewish Congregation;
2. Jewish Queer CPT;
3. Ecclesia de Lange;
4. IRANTI;
5. GALA Queer Archives;
6. Free Gender and Legal Resource Centre;
7. Gender Dynamix;
8. Women’s Legal Centre and the Triangle Project;
9. ACCESS Chapter 2;
10. OUT LGBTI; and
11. Congress of South African Trade Unions (“COSATU”).

 

In addition to the aforementioned organisations, the Committee received submissions from 153 individuals who are in favour of the Bill.

 

1. Committee consideration of the written submissions on the Civil Union Amendment Bill

 

The Select Committee on Security and Justice received a briefing on the Civil Union Amendment Bill from the Parliamentary Legal Advisor on 18 October 2019. Following this briefing, the Committee took a resolution, to involve the public and called for written submissions on the Bill.

 

At a further Committee meeting on 18 May 2020, the Committee received a briefing by the Content Advisor on the salient points contained in the written submissions. At this meeting, the Committee agreed to request a legal opinion on the aspects pertaining to public participation, particularly whether or not it is recommended that the Committee hold public hearings. This was done despite the fact that most members were satisfied with and understood the contents of the written submissions. The legal opinion was required to ensure that the Committee processes are above reproach and would pass any potential constitutional legal challenge.

 

On 4 June 2020, the Committee received a briefing by the parliamentary legal advisor on the legal opinion on public participation. In light of the legal opinion, the Committee agreed that sufficient time had been afforded to the public to make written submissions, and within its discretion, its deliberations and its understanding of the contents of the written submissions were sufficient in ensuring that adequate public participation had taken place.

 

Further, the Committee agreed that the responses to the written submissions provided by the parliamentary legal advisor and the Department of Home Affairs had adequately addressed any outstanding questions that members may have had in relation to the content of the bill and the implementation thereof.

 

In particular, members were satisfied with the Department’s explanation of Clause two (2) of the bill which deals with transitional provisions. The Department explained that they have undertaken a process of awareness raising with their officials which is still ongoing. The Department informed the Committee, that the 24-month period as set out in Clause two (2) of the Bill, is necessary to ensure that there is adequate time provided for the Department to continue with its training and to ensure that all officials are ready to implement the legislation effectively. The Department indicated that the awareness raising has been successful and officials are more sensitized to the solemnization of same sex unions.

 

Members had also considered Section 195 (1) of the Constitution which provides that public administration must be governed by the democratic values and principles enshrined in the Constitution, including in subsection (d) that services must be provided impartially, fairly, equitably and without bias.

 

Members noted further that Section 197(3) of the Constitution provides that no employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause. Members agreed that the repeal of Section 6 of the Civil Union Act, 2006 was important in advancing equality and upholding the Constitutional rights afforded to persons entering into same sex unions.

 

The committee thanked the organisations and individuals for their written submissions on the Bill.

 

 

1. Recommendation

 

The Select Committee on Security and Justice, having considered the Civil Union Amendment Bill [B11B – 2018] (National Assembly – sec 75), referred to it and classified as a section 75 Bill, reports that it has agreed to the Bill without amendments and recommends the National Council of Provinces approves the Bill.

 

Report to be considered.