A DRAFT REPORT OF THE PORTFOLIO COMMITTEE ON HOME AFFAIRS ON PEOPLES’ PUBLIC HEARINGS ON HOME AFFAIRS BILLS: CIVIL UNION BILL AND FILMS AND PUBLICATIONS AMENDMENDMENT BILL
20 SEPTEMBER TO
09 OCTOBER 2006

 

The Portfolio Committee on Home Affairs, having undertaken public hearings in various communities across the country on 20 September – 09 October 2006, reports as follows:

 

 

INTRODUCTION

 

In line with Parliament’s vision of providing a national forum for the public consideration of issues and seeking to act as a voice of the people, the Portfolio Committee on Home Affairs becomes the first Committee in the National Assembly to engage in a robust and rigorous process of hearing the views of the people, on the Bills which are before the House, right where they live in the rural and urban centres of the country. This is done to hear the views of the people about certain aspects that are of value and impact on their lives.

 

The Committee wanted to hear the views of the people on the Civil Union Bill and Films and Publications Amendment Bill.

 

 

BACKROUND

 

2.1. Civil Union Bill

 

The Constitutional Court, in the matters 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, 1996 (Act No. 25 of 1961), were inconsistent with the Constitution and invalid to the extend that they failed to provide the means whereby 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 01 December 2006, failing which section 30 (1) of the Marriage Act, 1961 (Act No. 25 of 1961), will be read as including the words “or spouse” after the words “or husbands”. In arriving at its decision, the Court considered the two options proposed by the South African Law Reform Commission and concluded that these were two firm proposals for legislative action, but stated further that this does “not, however necessarily exhaust the legislative paths which could be followed to correct the defect”. The Bill was drafted in response to the Constitutional Court’s judgement in the Fourie-case.

 

The Civil Union Bills is an important piece of legislation that is generating a great deal of public interest as is seeks to address discrimination against same sex couples. The issue of equality features strongly in the Constitution, which states that everyone is equal before the law and has the right to have their dignity protected. The state may not discriminate against anyone on the basis of, among others, gender and sex or sexual orientation.

 

The Bill seeks to:

 

Legalise the voluntary union of two adult persons of the same sex

Give legal effect to such a union

Legally recognise domestic partnerships between both opposite-sex couples and same-sex couples who do not wish to marry or enter into a voluntary union

Legally enforce domestic partnerships

 

2.2. Films and Publications Amendment Bill

                   

This piece of legislation seeks to improve the Films and Publications Act, 1996, so as to introduce certain definitions; to provide for the composition, functions, powers and management of the classification office; and to withdraw certain schedules of the Act.       

 

The Films and Publications Act 1996 is improved through the definition of “child abuse”. For the purpose of this Act, child abuse means the use of a child in the creation or production of child pornography or for sexual exploitation and includes exhibiting or showing images of sexual conduct to a child or exposing a child to or encouraging a child to witness a sexual conduct.

 

According to the new proposed changes on the Act, any person who creates, publishes or advertises any publication that contains visual images, description or images amounting to sexual conduct should submit such publication for examination and classification to the classification office before such publication is distributed, exhibited, offered or advertised for distribution or exhibition.

 

The Bills also seeks to:

 

Provide for the appointment of the compliance officers to monitor compliance with the Act; and

Compliance officers have the powers to order the removal of films and, computer games and publications that do not comply with the requirements of the Act.  

             

 

THE PURPOSE OF THE VISIT

           

The aim of the visit was to create a platform closer to the people, specifically to:

 

hear the voices of traditional leaders, religious groups, gays and lesbians organisations, media organisations, individuals and the general public on the Bills; and

 

educate and consult the general public about the law making processes

 

 

DELEGATION

 

3.1. Multi – Party Members

 

The visit was undertaken by a multi-party delegation led by the Chairperson, of the Portfolio Committee on Home Affairs, Mr H P Chauke (ANC). The Members’ team was comprised of the following:

 

Mr P Sibande (ANC)

Mr K Morwamoche (ANC)

Mr S Vundisa (ANC)

Ms M Maunye (ANC)

Mr W Skhosana (ANC)

Mr M Sikakane (ANC)

Ms S Kalyan (DA)

Mr M Swart (DA)

Ms S Swart (ACDP)

Ms I Mars (IFP)   

 

3.2. Officials

 

The following officials accompanied members:

 

Mr R Mankge (Committees, Parliament of RSA)

Ms D Martin (Committees, Parliament of RSA)

Mr S Vuke (Committees, Parliament of RSA)

Ms N Magwagwa (Media Management, Parliament of RSA)

Mr A Sheldon (Sound & Vision, Parliament of RSA)

Mr C Williams (Sound & Vision, Parliament of RSA)

Mr T Lamani (Chief Operation Officer, Parliament of RSA)

Ms M Boikhutso (Language Services, Parliament of RSA)

Mr B Mbo (Language Services, Parliament of RSA)

Ms M Makofane (Language Services, Parliament of RSA)

Mr R Bartlesman (Language Services, Parliament of RSA)

Ms M Makofane (Language Services, Parliament of RSA)

Mr R Ndlovhu (Language Services, Parliament of RSA)

Mr J Hlungwane (Language Services, Parliament of RSA)

Ms S Bopape-Dlomo (Chief Executive Officer, FPB)

Ms M Makwela (FPB)

Ms Y Langa (FPB)

Ms J Naidoo (Chief Director – Legal Services, DHA)

Adv T Sebelemetsa (Legal Services, DHA)

Adv Y Van Aswegen (Legal Services, DHA)

Adv D Erasmus (Legal Services, DHA)

Mr F Khumalo (Legal Service, DHA)

Mr A Madalane (Legal Services, DHA)

Mr L Vena (Legal Services, DHA)

Mr G Mabulu (Ministry, DHA)

Mr M Mawela (Deputy Ministry, DHA)   

 

 

APPROACH OF THE VISIT AND PLACES VISITED

 

The Committee made an attempt to reach out to most people in the nine provinces of the country as shown below:

 

 

20 September 2006                                            Soweto, Gauteng

 

21 September 2006                                            Polokwane, Limpopo 

 

26 September 2006                                            Welkom, Free State      

 

28 September 2006                                            Neilspruit, Mpumalanga

 

29 September 2006                                            New Hanover, KwaZulu – Natal    

 

02 October 2006                                                Mthatha, Eastern Cape

 

04 October 2006                                                Moses Kotana Municipality, North West

 

05 October 2006                                                Galeshewe, Northern Cape

 

06 October 2006                                                Polokwane, Limpopo1

 

09 October 2006                                                Woodstock, Western Cape

 

 

At all the hearings, officials presented the Bills clause – by – clause to the

people in their home languages. Further attempts were also made to offer

translation were it was needed. Key to this was to ensure that every

participant present at the hearings understands the messages in the Bills

clearly. The two Bills were also summarised in brochures in various official

languages.                               

 

In interacting with the members of the public, the Committee listened to the inputs made while also receiving written submissions made. The members of the public composed of mainly the various religious fraternity, lesbian and gay community, traditional leaders and the general members of the public and individuals.

 

 

FINDINGS

 

Inputs made from province to province raised almost the same issues. Noticeable inputs that were made by the people are presented below.

 

5.1. Civil Union Bill

 

5.1.1. Religious group  

 

The religious groups were composed of largely priests or leaders and individual believers from various churches such as the Christian, Muslim, Hindu denominations and others.

 

The Christian fraternity believed that the Civil Union Bill must not be supported or passed because of the Christian belief based largely on the Bible. They believed that:

 

Marriage is created by God as a voluntary union between a man and a woman

The purpose of marriage is for procreation or making children, which same sex marriages cannot fulfil

Same sex couples should not be allowed to adopt children, as children would be confused by the type of family structure they would grow in

The limitation of Gay and Lesbian rights is fair discrimination

Marriage process was not the making of government because people who want to marry do not need the permission of the state

Marriage between persons of the same sex if allowed, it must not be called or regarded as a marriage but something else – to preserve the traditional institution of marriage

Same sex marriages would lead to a destruction of a healthy family and society

Gay and Lesbian marriages would lead to the destruction of the country like the Biblical Sodom and Gomora   

The recognition of domestic partnerships also undermines the institution of marriage  

The Christian fraternity as the majority of people in South Africa belonging to various religions, their views of not approving same sex marriages must be taken into consideration.

 

The Muslim groups, like Christians, are also opposed to the use of the term “marriage” in the same sex context. They highlighted that the right of adoption should not be granted to same sex couples.

 

The religious groups made the following proposals, that:

 

The Constitution be amended to define Marriage and protect the traditional institution of marriage  

If there is no amendment of the Constitution, a referendum should be held on the Bill 

Domestic partnership be removed from the Bill

Government should fight the moral decay and promote high moral fibres by protecting the dignity of human beings 

 

However it should be highlighted that not all Christians, churches, priests and organisations are against the Bill. For example, the South African Council of Churches stated that the discrimination against homosexuals should be opposed. There is no single authorative interpretation of the scriptures, hence government should not interpret the Bible but the Constitution and create a single legal framework to protect all people.

 

Others felt that Gays and Lesbians are also created in the image of God and they should be respected, as there is a Constitution, which defends and protects them. Discriminating against Gay and Lesbian would fuel homophobic behaviours and intolerance in the society. Diversity needs to be recognised.   

 

Those against the proposals to amend the Constitution to define marriage as a union between one man and one woman believe that this may discriminate against other cultures in South Africa. We should be careful about using the word “culture” which is forever changing and never static.

 

5.1.2. Gays, Lesbian, Bisexual and Transgender group  

 

Gays and lesbian fraternity raised their views based largely on the Constitution of the country and as Citizens of South Africa who should be treated equal like anyone else. They believed that:

 

There is no need for the Civil Union Bill because there is the Marriage Act, 1961

The Bill will be discriminating if it is passed, because it will be separating and clearly discriminating between the so – called Christians and Lesbians and Gays

The Bill does not subscribe to principles of Batho-Pele, the Bill of Rights, rights to freedom, equality and expression

The notion that the Gay and Lesbians couples cannot raise children is unfounded and they can do a lot to raise and support destitute children

Marriage and sex is not only for procreation

The Bill, if it is passed, will be contradicting the same principles enshrined in the Constitution, and

Gays and Lesbians are part of South Africa and they must be given equal rights the same like other citizens    

 

The Gay and Lesbian fraternity proposed that:

 

The Marriage Act be amended in accordance with the Court’s ruling to include the words “or spouse” after the words “or husbands”

There must be a right to equal marriage for all

Government should educate the public about the Constitution, and not entrench separate developments 

 

 

5.1.3. Traditional groups and others

 

Chiefs and traditional healers also raised their views about the Bill. Those rejecting the Bill do it on the believe that:

 

African culture does not allow people of the same sex to marry each other – girl parents expect lobola from the boy parents who also expect a makoti (daughter in law)

Same sex marriages are a taboo

Marriage is naturally for a man and a woman as a woman is meant to bear children and built a family

Same sex marriages would lead to erosion of traditional leadership as kings, chiefs and queens are borne by a man and a woman    

Lesbians and Gays do not correctly interpret the Constitution of the Republic of South Africa

If the Bill is passed it would lead to the reduction of human development because if a man marries another man they would not produce children – population would be reduced

One of the preaching of the government is moral regeneration and values, hence values would not be protected if Gays and Lesbians are allowed to marry

 

Traditional leaders and parents also came strongly to opposing Domestic Partnerships because they believed that people would no longer pay lobola. The other fear was that “vat en sit” (Domestic Partnerships) would destroy the traditional family structure where a home is called by a man’s surname as the head.

 

Uncles of children left in their care felt that the Bill was long over due, as it would protect children and their mothers. Men would learn to be more responsible for their children. Proponents of the Bill argued that it would protect children and women. This piece of legislation was also thought to prevent disputes over properties should one partner dies.       

 

In addition other public views indicated that the Civil Union Bill was being rushed. The processing of the Bill was premature and people needed to be educated first. 

 

5.2. Films and Publications Amendment Bill

 

Majority of people who participated in the hearings were against pornography on television, cell phones, Internet and print media. They suggested that:

 

The government must have stiffer penalties and taxes on the film industry, especially those dealing with pornography

Measures be instituted to control the publication of pornographic material through media, television, radio and publications as well as the selling of pornographic materials

Pornography is an un-African action that must not be allowed to happen.     

 

However others argued that government should not totally ban pornography as this could lead to disastrous consequences, as it would resurface uncontrollably from underground.   They have proposed that:

 

Pornography on television be shown at two o’clock in the morning

Parents should guards their children against watching pornography  

           

On the other hand, the media people, particularly newspapers editors, argued that the press was given freedom in the new democracy, which the Bill seeks to undermine. They were very concerned about the implementation of the Bill on the freedom of the press. There were also questions as to how hate speech could be defined.

 

 

7. COMMITTEE RECOMMENDATIONS

 

Based on its deliberations and what had transpired throughout the hearings, the committee recommends as follow:

 

________________________________________________________

________________________________________________________

________________________________________________________

________________________________________________________

________________________________________________________

________________________________________________________

 

 

Report to be considered.



1 The Committee had decided to visit Polokwane again since there was few people during the first hearings held on 21 September 2006 due to a short notice of the event.