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
The Portfolio Committee on Home Affairs, having undertaken public
hearings in various communities across the country on 20 September –
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
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:
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
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
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
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
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
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