National Assembly Debate, 14
November 2006 (Unrevised Hansard)
The Deputy
Speaker
CIVIL UNION BILL (Draft Resolution)
The [aj1]DEPUTY
CHIEF WHIP OF THE MAJORITY PARTY: Madam Deputy Speaker, we move the motion in
the name of the Chief Whip of the Majority Party as printed on the Order Paper.
Agreed to.
The DEPUTY SPEAKER
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY
CIVIL [aj2]UNION
BILL
(Second Reading debate)
The [aj3]DEPUTY
SPEAKER: Hon Minister, just before you address the House, while we welcome the
public to the gallery, it must be remembered that this Chamber is a forum for
debate by Members of Parliament only. We are not going to allow participation
of the members of the public by clapping. Thank you very much, and be good
guests to the Assembly.
The [aj4]MINISTER
OF HOME AFFAIRS: Thank you, Madam Deputy Speaker.
Hon members, colleagues and friends, today we present for the consideration of
this House the Civil Union Bill of 2006 after an elaborate process of public
consultation and debate in this country.
The process of debate on this Bill has been rigorous. The extensive media
coverage on the debate on the Bill has resulted in the debate continuing in our
homes, workplaces and communities throughout our country. One thing that came
out of the debate has been an indication that people in all sections of our
society feel very strongly about the issues being dealt with in this Bill.
This dialogue is by no means over, and we continue to engage each other on
these matters in a constructive way in order to lead South Africans towards the
kind of society that we all fought for, as embodied within our Constitution.
For this reason, we are expecting robust debate even during this second reading
debate here in the House. I must also indicate that we have already noted the
changes made by the Portfolio Committee on Home Affairs to the original Bill.
Understanding the difficulties, which they were faced with, we have decided to
support those changes.
The challenge that we shall continue to face has to do with the fact that when
we attained our democracy, we sought to distinguish ourselves from an unjust
painful past by declaring that:
Never again shall it be that any South African will be discriminated against on
the basis of colour, creed, culture and sex.
This House, in passing the Constitution in 1996, recognised the fact that our
nation’s commitment to this noble principle of equality should be the
cornerstone of the society we want to build. In breaking with our past,
therefore, we need to fight and resist all forms of discrimination and
prejudice, including homophobia.
Mr M WATERS: Why have two Bills?
The MINISTER OF HOME AFFAIRS: We should also condemn violence. Why don’t you
wait for me to finish? Then you can raise your issues. [Interjections.] Just be
quiet, man!
We also condemn violence against same-sex couples, fuelled by hatred, as
recently observed here at home and in other countries. This commitment to our
Constitution and in particular the principles of human dignity, equality and
freedom of religion informed the drafting and refinement of this Bill.
The opening clause of the Bill of Rights reaffirms this view for us, and I will
quote again here:
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines
the rights of all people in our country and affirms the democratic values of
human dignity, equality and freedom. The state must respect, protect, promote
and fulfil the rights in the Bill of Rights.
As far back as 1996, government itself recognised that the legal regime that
regulates marriage in our country needs to be realigned with constitutional
principles. It is for this reason that the Law Reform Commission started work
on the review of the marriage legislation in the country. However, during that
process, the definition of marriage in our current law faced a challenge within
our courts. The Constitutional Court, in the matter of Minister of Home
Affairs v Fourie, and Lesbian and Gay Equality Project and Others v
Minister of Home Affairs, 2006, declared that the definition of marriage
under common law and the marriage formula as set out in section 30(1) of the
Marriage Act of 1961 were inconsistent with the Constitution, and invalid to
the extent 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 1 December
2006, failing which section 30(1) of the Marriage Act will be read as including
the words ``or spouse’’ after the words ``or husband’’. This current Bill was
drafted in response to the court’s judgment in the Fourie case.
The court, while noting that ``equal’’ does not mean ``identical’’, ruled that
while it could not pronounce on the constitutionality of it, it would be
helpful to point to certain guiding constitutional principles.
In terms of the first principle, the objectives of the new measure must be to
promote, one, human dignity, the achievement of equality, and the advancement
of human rights and freedoms. The second guiding principle states that, and I
quote:
Parliament must be sensitive to the need to avoid a remedy that, on the face of
it, would provide equal protection, but would do so in a manner that is
calculated to reproduce new forms of marginalisation.
Whatever legislative remedy is chosen must be as generous and accepting towards
same-sex couples as it is to heterosexual couples, both in terms of intangibles
as well as tangibles involved.
The Civil Union Bill presently before this House indeed provides such a remedy.
The objects of the Civil Union Bill are to provide for the public solemnation
and registration of civil union by way of either a marriage or civil
partnership, and to provide for the legal consequences thereof.
As noted in the memorandum on the objects of the Bill, the Bill makes provision
for opposite and same-sex couples of 18 years or older to solemnise and register
a voluntary union by way of either a marriage or a civil partnership. Care has
been taken to ensure that a distinction is drawn between the responsibilities
of the state and the church, as section 15(3) of the Constitution is indicative
of sensitivity in favour of acknowledging diversity in matters of marriage. The
Bill provides for same-sex couples to be married by civil marriage officers and
such religious marriage officers who consider such marriages not to fall
outside the tenets of their religion.
In order to give effect to the Constitutional Court ruling, same-sex couples
have to be allowed to marry so that they can enjoy the status, obligations and
entitlements enjoyed at the moment by opposite-sex couples.
The Bill allows for both same-sex and opposite-sex couples to choose the option
of having their unions solemnised and registered as a civil partnership by a
state-employed marriage officer.
We’ve decided to reject the calls to amend the Constitution. Whilst we
understand that the Constitution can be amended from time to time to deal with
practical arrangements, we are cautious of an amendment to the Bill of Rights,
as it is the bedrock on which our Constitution and our democracy is based.
We also do not share the current view amongst others in our society that in
order to recognise one of the rights in our Constitution, you need to take away
another. Our Constitution clearly makes room for the right of people to be
treated equally without a hierarchy including, as it is in this case, a situation
where those rights are for a minority in our country.
The consultation process in the public has been extensive, with the Portfolio
Committee on Home Affairs conducting public hearings in all nine provinces and
in Parliament. The Constitutional Court itself also noted that the process of
the Law Reform Commission has also ensured extensive consultation.
This process of law reform, particularly with regard to the changing concept of
family law in our society, remains an issue for further engagement. We will be
considering the recognition of religious marriages, revision of the Marriage
Act of 1961, and of course, the regulation of domestic partnerships.
I must thank all members of the portfolio committee, its chairperson, Comrade
Hlomane Chauke and the different study groups of the different parties
represented in the committee for all the hard work they put in finalising this
Bill.
I am aware that you have spent a lot of time away from your families as a
result of this work. You’ve engaged extensively with the public. You’ve
listened carefully to many, many divergent views, and you’ve presented this
House with a Bill that is consistent with the principles of our Constitution,
and the guidelines set out by the Constitutional Court almost a year ago. If
you did not engage as robustly as you did in representing these views, you
would have failed in your duties as public representatives.
It is very important for members to appreciate that within the three spheres of
government, Parliament should continue to be the one bearing the responsibility
to pass legislation and not have the consequences of the judiciary performing
this function on behalf of the legislature.
The principle of separation of powers therefore needs to be protected, and it
is for this reason that we have chosen to adhere to the directive of the
Constitutional Court, and not allow the Court itself to amend a piece of
legislation.
The dynamic interface and respect for the different roles of the three spheres
of governance will be a reflection of a healthy democracy.
Hon members, I present to you for your consideration the Civil Union Bill of
2006. Thank you very much. [Applause.]
Mr H P CHAUKE
The MINISTER OF HOME AFFAIRS
Mr [aj5]H P
CHAUKE: Madam Deputy Speaker, it has really been a task and a half. On behalf
of the portfolio committee, I think there is nothing much to be said today
because we have managed to listen and to engage with the public on the Bill
that has been tabled before Parliament.
Let me start by taking this opportunity to outline the manner in which we have
handled this Bill and that is that, when the Bill was tabled before Parliament,
there were problems already around the constitutionality of the Bill. As we all
know, the state law advisor found that there are problems within the Bill on
which he could not give a clear report to Parliament on the constitutionality
of the Bill with a number of recommendations that he made.
By the time the Bill was tabled before the committee jointly by our Minister
and the Deputy Minister of Justice, the portfolio
committee did its own assessment of the work and the challenge before the
committee. We then decided, after listening to the presentation, that it would
be necessary, since this matter is one of the most sensitive matters - because
even the court itself found that this matter needs to be handled in a sensitive
manner - and we made sure that we moved along with the people in dealing with
the matter.
We then decided as a committee that we should embark on a programme of
public hearings. It’s normal procedure that on any Bill that is before
Parliament, we will have to have public hearings but we then extended the
hearings to go around the country because of our understanding of the nature
and the sensitivity of the matter that was before the committee.
The first hearings were held in Soweto where we invited the residents and
people generally of Gauteng, who came in their numbers to participate and to
engage robustly with Parliament. They raised their concerns around the issues
that we were placing before them, and those hearings continued in all the
provinces, to cut matters short.
What I want to raise is that during public participation at the public
hearings, there were a number of issues that were raised that came out of the
public hearings. One of the issues that came out was the issue of amending the
Constitution. There was this general call that sort of rejected what we wanted
to do as Parliament, especially looking at the Bill itself that its something
that the public will not accept - that we should solemnise marriages of
same-sex couples. Then there was this call that said- protect the marriage and
amend the Constitution so as not to allow these marriages to take place.
The second view that came out of the public hearing was that of having a
referendum. This was simply to say that there is a need to test the will of the
people on what we want to do as government, and the majority of the people,
because this was informed by the notion that says we reject, we don’t agree, we
don’t support what government wants to do, and let us call for a referendum to
test the will of the people. That was the view that was coming generally from
the public.
The third thing that came out very strongly was that the Bill itself in it has
a component that dealt with the issue of a civil union and the issue of
domestic partnership. The majority of the people again felt that the issue of
domestic partnership sort of interfered with customary marriage and that it
interfered generally with any relationship because what it was saying was that,
like any relationship that you get into, it may be a registered or
non-registered relationship, but automatically you would sort of be covered by
the law. Most of the people felt very strongly that it was not necessary for us
to engage on that matter, especially a matter which was not quite urgent. We
should have put it aside and begin a process so that we can begin to engage
with the public again.
What was coming across, however, was the fourth point which was the time allocated
for Parliament to handle this matter because, generally, the public felt very
strongly about the time given to Parliament. The court in its ruling said that
it would give Parliament one year to come up with the remedy to deal with this
problem. So people felt very strongly that there was a need in fact to have
more time so as to allow more debate around the issue which is before us.
The last point obviously was the usage of the word “marriage” in the Bill.
People felt very strongly that, whatever it is that we want to do, we should
not use the word ``marriage’’. You know that there were a number of
organisations and churches that marched to send their memorandums, who sent a
number of submissions that were talking about the usage of the word “marriage”
itself. Other speakers will come who will open that part as to why we have
opted to have ``marriage’’ in the Bill. Speakers who will come after me will
raise those issues.
So I think, generally, the approach which we took as Parliament was to recognise
the very fact that whatever we do, we are guided by the Constitution. These
rights that we talk about are not rights that are made by the ANC somewhere in
the corner there. These rights are the rights that we ourselves, who have
participated in compiling this wonderful document that we call the Constitution
of South Africa which we all pride ourselves on, entrenched in it. These rights
are rights that you cannot take away. That is the manner in which we approached
these public hearings ourselves. We explained these rights to the people. In
fact, we mostly found that people understand the Constitution more than some of
you sitting in the Chamber here.
The biggest challenge obviously that is facing us is that we have to make sure
that we meet the Constitutional Court judgment and, given the manner in which
the Minister has elaborated on these issues, we have tried in fact to respond
to that Constitutional Court judgment. We have removed the domestic
partnership, as the people have said. We have looked at the Bill itself and
said that to make it only for a specific group of people will not be correct.
Why can’t we open this Bill to allow not only same-sex partners but also each
and every one? Mncwango, if you want to decide and go to another extension of
same-sex marriage, you may. [Interjections.]
The SPEAKER: It’s hon Mncwango.
Mr H P CHAUKE: You may obviously use the Bill and make sure that those rights
or marriages are solemnised. I am saying that it’s a challenge that we have to
take up as a country. There are still marriages that are not yet even covered,
and this Bill sort of begins to attempt to cover some of the areas - Hindu
marriages, Muslim marriages. There are a number of marriages that are still not
yet covered.
Now that is the challenge, and that’s what we have agreed upon in the committee
that we still need to sit and look at some of these areas because there will be
a need to look at the general law that governs marriages as a state. The part
of the celebration of weddings and all of that is not done by the state but is
done by formations, organisations and individuals who decide how they want to
celebrate their marriage at the end. That is not the responsibility of the
state.
What you then found during these public hearings was that the majority of these
people who said don’t use the word “ marriage” were from the church formations,
but the church formations themselves were very divided. You get the SA Council
of Churches coming forward to say, ``We come from the SA Council of Churches
and our position on this Bill is that we don’t support it. We don’t support the
fact that a man must marry another man or a woman must marry another woman.’’
Throughout as we moved around the provinces and you come to Parliament here
with public hearings, the same applies. The SA Council of Churches comes in and
says,`You know, those that claim they were representing the SA Council of
Churches were lying. Here is the position of the SA Council of Churches. The SA
Council of Churches’ position is that we agree that same-sex couples should be
given a opportunity to marry.’’
Now it was very clear in fact from the beginning that we have this problem of
church formations being much divided in fact on handling the issue that we were
dealing with. That in itself obviously wouldn’t hinder the progress that we had
to make as a committee but there are other presentations that came forward, for
example, from the House of Traditional Leaders. All of them were talking about
amending the Constitution. How then do you give this right and tomorrow,
because you feel very strongly that you don’t agree with this thing, you then
say, amend the Constitution not to give that right? I think it’s a challenge
that all of us, when we speak here, must be able to respond to. We must be able
to respond to the right that we have given to this individual, this minority,
that we are so fearful that they will come in and change the whole marriage
system in the country.
I think we should engage on this for us to understand where our standpoint is,
because in our deliberation as a committee, having met with almost every single
top lawyer in this country, every single constitutional expert that we have met
in the committee sort of agreed with us that there is no way that you can move
away from the rights of these individuals because it’s entrenched in the
Constitution. You cannot run away. It’s something that is given and its
something that we have to live with. [Interjections.] So obviously, you gave
it; you were part of the Constitution-making process and you were part of the
drafting of the Constitution. When we adopted that Constitution, all of us
stood there - there is a nice picture that you can see outside there, showing
you are there - confirming that we are part, we will respect and uphold the
supreme law of the country which is the Constitution.
Without any waste of time, I want to take this opportunity to thank the
Department of Home Affairs, the legal team, the Minister for giving that
leadership, state law advisor and the parliamentary advisors, and to thank
Parliament generally on the support it has given to the portfolio committee. It
was not an easy thing for us to have got the resources that were given, the
transport arrangements as well as food and everything that was put together in
making sure that, in the law-making process, we move along with our people. It
is very important.
People have spoken on this issue, and the more we speak about this issue, the
more people begin to understand it - that it is something you cannot take away.
On that note, I really want to thank members of the committee who really gave
of their best - from the DA, IFP, ACDP and everybody, in fact - in making sure
that we listened to the people and came up with whatever that we have come up
with, which is a Bill we believe will pass constitutional muster. The argument
has been that this Bill will not pass constitutional muster but we believe that
the work that was done by this committee confirms that this Bill will go
through the Constitutional Court. In its findings, if it finds that this Bill
is not constitutional, obviously, there will be a particular process that we
must engage on with Parliament. [Interjections.] No, there is nothing wrong with
doing that. It can be done all over again, but we have a responsibility as
lawmakers, and we cannot run away from our responsibility. If the
Constitutional Court finds that whatever we have made is still lacking, we will
come back to Parliament again and engage and resolve whatever it is that is not
in line with the constitutional requirements to make sure that these
individuals that we want to cover are covered.
I know that, from the opposition, some of them have already declared their
position very clearly, and we will support you. We will make sure that if you
want to be unionised, you will be unionised. If you want to get married, we
will make sure that you get married. That is our responsibility. As you go out
as Members of Parliament, go and preach one gospel: These rights are rightly
given and are rights that you cannot take away.
We will still listen to the debate and we will still want to engage more on
these issues as you speak. Thank you very much, and thank you very much members
on that point. [Applause.]
Mrs S V KALYAN
Mr H P CHAUKE
Mrs [aj6]S V
KALYAN: Deputy Speaker, Parliament is doing
something unique today by passing the Civil Union Bill. It is following an
order by the Constitutional Court to create legislation to remedy a defect in
the Constitution of our country, whereby same-sex couples are prohibited from
enjoying the same status, entitlements and responsibilities accorded to
heterosexual couples through marriage.
Normally,
Parliament passes legislation in keeping with the Constitution. Today is
different because we are amending an Act of Parliament, which is unconstitutional.
We were given a whole year to effect this legislation, but with the deadline
almost upon us, the Department of Home Affairs suddenly tabled the Civil Union
Bill as a response to the Fourie judgment in the second week of September 2006.
The
original Bill tabled allowed for the civil union between same-sex couples and,
although there was a reference to the word “marriage” in clause 11(1), we were
told by the Justice legal team that this was a mere legal
nicety. The portfolio committee embarked on a series of public
hearings in all nine provinces and in Parliament to gauge
public opinion and sentiment on the proposed legislation.
A
wide spectrum of input was received. With the exception of
the NG Kerk, all faith-based organisations that presented,
were totally opposed to the proposed Bill. Their main objection was
that marriage could only be concluded
between a man and a woman.
Many
Christians, if not all, maintain that the Bible was the first
constitution. Many called for the Constitution to be amended to protect
marriage as a sacred institution, and some even proposed a referendum to settle
the debate. Several legal opinions put forward the concept that the Civil Union
Bill was unconstitutional in that same-sex couples could only conduct a union
and not a marriage, and that the separate-but-equal approach would not survive
a Constitutional Court appeal.
The
state law adviser, in fact, refused to certify the original Bill,
and even Parliament’s legal opinion was that the Bill was unconstitutional. Gay
and lesbian groupings echoed the sentiment that by being allowed to have only
civil unions, they were being treated as second-class citizens, and were
clearly unhappy with this.
I
think the Bill faced its fiercest opposition from the National
House of Traditional Leaders and from Contralesa. The
National House asserts that the Bill disregards the culture, customs and
traditions of the majority of Africans, and thereby opposes this Bill.
Contralesa regards Parliament’s task, as ordered by the
Constitutional Court, to be embarrassing
and divisive, and calls on Parliament to reject the Bill in its entirety.
A
significant observation that emerged during the hearings is the extraordinary
high level of homophobia and homoprejudice that exists in our country. While
much of it is rooted in sheer ignorance, some of the views expressed were just
pure vitriol and malice.
On
a personal note, during the public hearings I often had to sit on my hand and
bite my tongue when outrageous and often provocative antigay comments were
made. I would like to applaud the gay and lesbian groupings for standing their
ground, often in the face of strong opposition, mockery and sarcasm.
Five thousand eight hundred petitions, 637 written submissions and countless
hearings later, we are here to vote on an amended version of the Civil Union
Bill. It is quite unfortunate that the ANC pulled the amended version of this
Bill out of the bottom drawer merely a day before voting in the committee.
It is my considered opinion that the portfolio committee has misled the public
in the hearings, because the version before us now is not the one presented
during the hearings. I wonder how Judge Sachs will view the public
participation clause he so expressly set out in the judgment.
The
Bill in front of us today is not purely a Civil Union Bill, but is
in
fact a second Marriage Act, merely couched in a different name in an effort to
appease both sides and arrive at a middle-of-the-road
solution. The essential difference is that the Marriage Act of 1961 allows for
marriage between girls and boys. The Civil Union Bill of 2006 allows for the
union or a marriage between boys and boys or girls and girls or girls and boys.
To put it bluntly, the straight guys have two choices in respect of marriage,
and the gay guys only have one option.
Yet
another significant difference is that in the Marriage Act, one
has to be 21 years of age to marry, while in the Civil Union
Bill the age of consent is 18 years. One wonders what Judge
Albie Sachs will make of the law we have come up with and whether, in
his opinion, it will pass the equality test. The removal of all reference to
gender, as proposed by the DA, is indeed most welcome. Also, the
exclusion of domestic partnerships in this Bill is great, because it doesn’t
belong here.
It
was quite interesting to note how much support there was by the ANC for the clause
that
refers to marriage officers who may apply to the Minister on grounds of
conscience not to conduct unions or marriages for same-sex couples. This option
creates space for further unnecessary discrimination, and causes offence to
same-sex couples. It is quite ironic that the ANC will not allow its MPs to
vote for the Bill on the grounds of conscience,
and yet supports legislation to that effect.
I
do have a great deal of sympathy for my colleagues in the ANC who will be
forced to toe the line or face disciplinary action. Well done to those who
choose to exercise their choice. Judge Sachs
was indeed provocative to place a short timeframe on Parliament to enact
legislation in this matter. The time we devoted to this Bill was too short,
given its consequences, and adhering to a deadline is the wrong reason to pass
legislation.
I
was rather intrigued to read in the weekend papers a comment by the chairperson
of the committee that this is an interim piece of legislation. I
haven’t heard the Minister concur with this. If this is the case, then my point
about rushing legislation merely to meet a deadline is indeed well made.
Parliament
would do well to ask the Constitutional Court for an extension of time, so as
to do justice to the task at hand and to rewrite the Marriage Act in the light
of our democratic dispensation. Nevertheless, the Bill is a starting point in
the right direction, but in the wrong way. The ideal is to have one Marriage
Act for everyone. It is the only way to truly recognise the equality of all our
people.
As
a nation, we have a long way to go to eradicate discrimination on the grounds
of sexual orientation. Some members of the DA are opposed in principle to the
Bill as they are of the opinion that the Bill fails in terms of the
equality clause of the Bill of Rights. The DA will allow a conscience and free
vote on this Bill. [Applause.]
Mrs I
MARS
Mrs S V KALYAN
Mrs [aj7]I
MARS: Madam Deputy Speaker, Minister, colleagues, the rights of equality and
dignity are enshrined in our Bill of Rights and contained in the 1996
Constitution of the Republic. As part of the right to equality, the
Constitution holds that no one may be discriminated against based on his
or her sexual orientation. In the past
few years, the affirmation of this latter element of the right to equality has
been the subject of numerous legal challenges in the High Court, the Supreme
Court of Appeal and, ultimately, the
Constitutional Court.
The
Civil Union Bill is a result of a directive issued by the Constitutional Court
to Parliament to rectify certain defects in our common law to give legal
expression to the rights of equality and dignity.
However,
the Bill before us today has, in many ways, been a headache and heartache for
many South Africans. And, if the Sunday Times quoted
the chairperson of the portfolio committee
correctly, there is only temporary respite, as the Committee on Home Affairs
would begin negotiations with “the
Minister next year on a complete revision on the law on marriage, cutting the
state’s role to a minimum, while ensuring that all groups and faiths are
equally catered for”.
The
conclusion – and the only conclusion – we can draw from this is that the whole
issue is to be revisited and that, currently we are
attempting to satisfy the requirement of the Constitutional Court’s judgment by
1 December. This is a duty we have.
Whether
the version of the Bill before the House today will, in fact,
meets the requirements of the judgment
is open to debate, and one would expect that only the court would provide
clarity on this matter.
The
issue of major concern for us is more or less the
same as that for our colleague from the
DA, which is the shortness of time. The issue is so simple,
because in the judgment there was a hint of the
separation of the religious and the civil aspects of marriage, which should
have been considered. We feel that this issue
should have been opened up for more in-depth discussion. However, there was
insufficient time, as mentioned by the chairperson.
I
would just like to say that the course the committee took in
taking this Bill to the provinces was really what I would call public
consultation. The Bill was put into the hands of ordinary citizens and we did
not just listen, as we often do when we have public hearings in Parliament
where we hear advocacy groups presenting their cases. We
heard ordinary citizens speak and they spoke extremely well, and it was amazing how
informed they were.
We
as a party support strong moral values and the role of the family as the
foundation pillar of society. We know that many colleagues across the political
spectrum share this view. This, however, does not imply contempt of the
Constitution or of the judgment of the court. Last week, and only last week,
the ruling party presented the latest version of this Bill that is
now before us. In all honesty, we have not been able to discuss it
broadly
enough, again, because of the
shortage of time.
It
would be the understatement of the year to say that the original Bill has
caused tremendous controversy on a subject that we all
know is very sensitive, as the chairman said, and it should be treated
accordingly. When the Portfolio Committee on
Home Affairs took the Bill around the country in a comprehensive series of
public hearings, it quickly became apparent that
not only did it stir up emotions on all sides, it was also opposed by large
sections of the communities on religious and moral grounds, as well as by the
intended beneficiaries but for very different
reasons.
This
Bill is not supported by the IFP. I thank you. [Applause.]
Mr K W MORWAMOCHE
Mrs I MARS
Mr [aj8]K W
MORWAMOCHE:
Sepedi: [aj9]
Sepikara, Motlatša Sepikara le maloko ao a hlophegago a Ntlo ye. Tla ke thome
ka gore, tšeo di boletšwego ke Phathi ya Kganetšo mo ke ditaba tša bo, “sehlaga
swara, e ja tša bo Pilo”. Ke ditaba tša bo, “ba lla kae re kgone go hula”.
E re ke thome ka go tlaleletša seo se boletšwego ke Modulasetulo wa Komiti ye
ya tša Selegae ka ditaba tša theeletšo phatlalatšwa moo setšhaba se bego se
lebeletše go šireletša setšo, setlwaedi, sedumedi le ditokelo tša sona - se sa
lebelela ditokelo tša batho bao ba sa swanego le bona e lego seo se ka se re
išego felo ge re lebeletše.
Ke laetše gape gore maloko kamoka a Ntlo ye ao a lego ka mo gomme a be a eme
pele ga sethala a laetša gore a tla ama ke Molaotheo wa Ntlo ye - ge lehono ba
hlanoga, Motlatša Sepikara, go rata gore nke le ba senke gore naa tšeo ba bego
ba di botša setšhaba ba re ba tla ama ke Molaotheo wa Ntlo ye, ba be ba rereša
naa?
Go ditšhišinyo kamoka tšeo di bego di bolelwa ge go be go dirwa theeletšo
phatlalatšwa, ke laeditše gore e be e le tšeo ba lebeletšego ditokelo tša bona
gomme ba se ba lebelela tša bao ba sa dirego tša go swana le tša bona. E be e le ditokelo tša go
swana le gore, a re fetošeng Molaotheo gomme re nyake referentamo gore re kgone
go gatelela bao ba se nago ditokelo tšeo di swanetšego - e lego seo Molaotheo
wa rena o sa se dumelelego. Ka Sepedi ba re: “Di tlogeleng di gole mmogo le tla
di bona ka mohla wa kotulo”.
Go bile le bao ba rego hlalosang lenyalo. Lenyalo o tla le hlalosa bjang mo
manyalong ao a lego gona mo Afrika Borwa. Ka lenyalo la setšo re bolela ka
monna ge a nyala basadi ka dikgomo. A nyala wona “makubukgomo basadi maraga
thetho”. Ge go bolelwa ka lenyalo la semolao, go bolelwa ka monna ge a
nyala mosadi o tee gomme le yena mosadi a tlaleletša se re rego: “A ba tlale ba
ate monapelo ga a tsebje”. Ka Sepedi ge mosadi a nyalwa ka dikgomo re re:
“Moraka monna ke mpa, go apara kobo ke mabala”. Bao ba rego go nyakega
gore go be le molao wa manyalo wa go swana, go tla swana bjang mola go se na
tshwano mo magareng ga manyalo a? “Monna ge a palelwa ke go tia kati o re kgoro
ke ye nnyane”. “Pudi ge e tšhaba go tswala e re kgwatla di a lla”.
English:[aj10]
The Civil Union Bill provides for the formal and legal recognition of gay and
lesbian partnerships with the same rights as conventional marriages. Among its
provisions any two people aged 18 years and older may enter a civil
partnership, which they may call a marriage and which will carry all the rights
of a marriage under the existing Marriage Act. Partners may legally refer to
each other as husband, wife, spouse or partner.
No one may be a partner in more than one civil union or marriage under either
of the laws providing for marriage. Any marriage officer may solemnise a union
under the Civil Union Act after its approval, but any marriage officer may
record his or her objection to the law and decline to officiate the same-sex
marriage. Churches may apply to have the marriage officer registered under the
Civil Union Act, but none are obliged to do so. Partners wishing to marry need
only produce a South African identity document or affidavit confirming their
identity. Anyone who has previously been married under either law will need to
produce proof of divorce or a certificate confirming the death of previous
partner. There will be no calling of bans during the ceremony, but objections
can be made in writing to the marriage officer before the ceremony and must be
investigated.
Civil union marriages must, like traditional marriages, be conducted indoors,
in a public office, house, church or wedding centre. The ceremony requires the
taking of hands and is completed with a vow.
The ANC supports the Bill. Anyone who is opposing the Bill ...
Afrikaans: [aj11]
... hulle kan maar lê en gaap en droom. Die ANC gaan regeer. [Tussenwerpsels.] [... can lie down and
yawn and dream. The ANC will govern. [Interjections.]]
Mr L W GREYLING
Mr K W MORWAMOCHE
Mr [aj12]L
W GREYLING: Madam Deputy Speaker, this is the tenth anniversary of our beloved
Constitution. South Africans always mention with pride that ours is the most
progressive constitution in the world. Unfortunately, however, the values of
our society do not always match the progressive values of our Constitution.
This has been particularly evident in the public hearings on this Bill, which
some people have used as a platform to express some of the most deplorable and
deep-seated prejudices. It is clear that we have a long way to go before we can
build a truly tolerant society where all our divisions can be bridged.
What has shocked the ID, however, has been the attitude of the ANC on this
issue. Instead of showing true leadership, they chose to compromise on
constitutional principles in an effort to appease both sides. Instead they have
alienated both and drafted legislation that could be challenged in the
Constitutional Court. In particular the clause that civil marriage offices can
refuse to marry gay couples can certainly be seen to be discriminatory. Given
our tragic history they should have also known that, as the South African
Council of Churches stated, separate doesn’t ever mean equal. As the ID upholds
the Constitution and the values therein, we are left with no choice, but to
oppose the Civil Union Bill.
Rev K R J MESHOE
Mr L W GREYLING
Rev [aj13]K
R J MESHOE: Deputy Speaker, this I believe is the saddest day of the 12 years
of our democratic Parliament when some members of this House, led by the ruling
party, will be passing into law the Civil Union Bill which is opposed by the
overwhelming majority of our people.
It is indeed very sad that the ANC leadership chose to support this Bill in
spite of the overwhelming objections from bodies such as the Marriage Alliance
representing millions of Christians, various other church and community
groupings and the Congress of Traditional Leaders of South Africa. Their views
have, for all intent and purposes, been ignored and rejected.
Hon Steve Swart made excellent legal submissions on behalf of the ACDP during
deliberations in defence of the sanctity of traditional marriages and argued
that the definition of marriage as a voluntary union between a man and a woman
should be protected by a constitutional amendment. This argument was based on
the fact that marriage was instituted by God Almighty and not liberals and that
we value marriage and the family as a fundamental building block of society.
The ACDP, together with thousands of people and groupings that made submissions
to Parliament, have consistently stated that same-sex marriages should not be
legalised and that our Constitution should rather be amended to protect the
sanctity of marriage as the voluntary union between a man and a woman.
The Civil Union Bill justifies immorality and by inference calls sexual
perversion a legitimate alternative lifestyle that should be openly accepted.
It calls immorality and perversion a true virtue that is commendable freedom.
May I remind this House that rejecting God’s house and despising His word will
result in those doing it being given over to the consequences of their sins and
divine wrath. Members must also be reminded that God will not be mocked. When
this Parliament, under the instigation of the ANC, passes this Bill today then
Parliament will have gone too far and is about to cross the line of God’s
patience with us as a nation.
The prophet Isaiah said:
Woe to those who call evil good, and good evil... woe to those who are wise in
their own eyes and clever in their own sight.
Why are some forces trying to convince the nation that homosexuality is okay
when God calls it an abomination? For the sake of the peaceful future of this
nation, Members of this Parliament must stop provoking God to anger as the men
of Sodom and Gomorrah did and came under His wrath.
The writer of the book of Hebrews said:
... marriage should be honoured by all and the marriage bed kept pure, for God
will judge the adulterer and all the sexually immoral.
Adultery, sexual immorality and homosexuality are grave sins in God’s sight
since they are a transgression of His law and are defiling a marriage
relationship between a man and a woman. With this Bill, the ruling party and
all those who support it are inviting serious trouble on themselves without
even considering the impact this Bill will have on future generations.
While the ACDP appreciates that this Bill is an attempt to meet the
Constitutional Court ruling, we nevertheless believe it has gone beyond what
was required by the court. [Time Expired.]
Ms S H NTOMBELA
Rev K R J MESHOE
Ms [aj14]S
H NTOMBELA: Madam Speaker, Ministers, colleagues, during our public hearing I
received this anonymous message. Let me read it to you: I am a boy of 25 years.
My appearance is that of a girl. My voice, my movement and everything within is
that of a girl. In short, I am a boy in a girl’s body. What must I do? I tried
for the past few years to be a boy, playing with boys, tried to make my voice
deeper. Tried to move like a boy but I cannot. What must I do? Minister, where
must I go? My family won’t understand. They say I bore them. They say I am a
disgrace to the family.
*** Language spoken has changed to Sesotho [aj15]***
Ke ba tshehisa ka batho, ke tlontlolla lelapa la bona.
*** Language spoken has changed to English [aj16]***
The truth of the matter is, I am a boy in a girl’s body. What must I do? Where
must I go? Sometimes I feel like killing myself for my family and my community
make a joke of me. Sometimes I ask myself: why me in this family? Why did God
do this to me? It is because God hates me. Ntate Meshoe, is it because God
hates me? What must I do? Where must I go? Lucky are those who don’t have kids
like me, those who don’t have grandchildren like me, those who live their lives
freely, those who can move and those who are accepted by everyone, those who
are loved by God. What must I do? Where must I go?
The fact of the matter is: I am a girl. I feel free when I am with girls. You
will never understand what is within me, because you are lucky. You are not
like me. You are very lucky because in this land God only loves you. Please, I
want to live like you. I want to be accepted like you. I want to practice my
rights like you. I am human being. I want to be free. I think God loves me too.
Don’t even wish to have children like me. Don’t even wish to have children and
grandchildren like me. I wonder if that happens, what would you do, Ntate
Meshoe? It can happen. It can be your child or it can be your grandchild. I am
a South African. I belong here. I also want my rights and my dignity to be
protected because I am here to stay.
*** Language spoken has changed to Sesotho [aj17]***
Mme Sebui, ka morao ha ho bala molaetsa ona, ke ile ka ipotsa hore nna ke mang,
ke tswa kae? Ka
ipotsa hore na ho a hlokahala hore ke hatelle ditokelo tsa batho ba bang.
Ke mang nna, ya tlang ho tlosa le ho silafatsa seriti sa batho ba bang. Ke mang
nna, ya ka etsang hore batho ba bang ba seke ba thabela tokoloho ya bona. Nna ya neng a sena
ditokelo, ya neng ha hatelletswe.
Le nna ke ne ke sena ditokelo tse kang ho fumana metsi, ke ne ke fuwa metsi a
ditshila, ke nweswa metsi ha mmoho le matata le difariki letamong. Ke nna mang
ya ka bang le tokelo ya hore tjhe ho ditokelo tsa batho ba bang. Nna ya neng a
sa gone le ho fuwa ntlwana, nna ya neng a sebedisa thota, ke ne ke sebedisa
lejwe le jwang jwalo ka pampiri ya ntlwaneng. Ke ne ke amohilwe seriti sa ka.
Ke nna mang ya kareng tjhe ho ditokelo tsa batho ba bang. Ke mang nna ya neng a
pepala ngwana fates ha ke ne ithwetse, ke ne ke sa tsamae tliliniki, ke ne ke
tholla ngwana fatshe mobung, ho ne ho sena le ngaka, ke ne ke nketswe ditokelo
tsaka tsa bophelo bo botle.
Ho baneng ke
tshwanela ho etsa dintho tsena ho batho ba bang? Ho baneng ke tshwanela ho kgetholla?
Ho baneng ke tshwanetse ho hatella batho ba bang, ha molao theo wa rona o
dumelletse hore motho emong le emong o na le ditokelo.
Sebui sa Palamente ha re ne re tsamaile, ntho e hlokolotsi e ileng ya hlaha ke
hore, bana ba batho ba bong bo tshwanang ba nyalaneng, ba tla sotlakwa ka
thobalana. Modulasetule le manyalong a tlwaelehileng bana ba rona ba ntse ba
sotlakwa.
Ho na le bontate ba tswetseng bana, ba be ba boele hape ba robale le bona bana
bao, hona jwale re ntse re nyalana re le bomme le ntate. Hona jwale re ntse re
nyalana ka tsela ena e tlwaelehileng ho na le ntate mane Bethelem ya ileng a
nka bana ba hae ba babedi a ba otla ka lejwe; a ba pakela ka sutukheising; a ba
lahlela letamong. E ntse e le motswadi wa bona. Ebe phapang e kae he moo, ho
tswa ho botho ba motho, re ke ke ra etsa dintho tse tjena.
Modulasetulo re na le Molaotheo wa rona, Molaotheo ona ha oa ngolwa ke ANC
feela, o ngotswe ke Afrika Borwa ka ofela, ho kenyeleditse le bona ba hananang
le ona ka jeno leen, e ne le le banka karolo ho ngolweng ha Molaotheo ona.
Re tlameha ho
hlompha Molaotheo ona, le hona ho etsa bonnete ba hore oa sebetsa. Ke mosebetsi
wa rona ho etsa bonnete ba hore Molaotheo oa sebetsa. Rona ba ANC le ba bang re
utlwisisa hore kgethollo bathong ke ntho e jwang. Re phetse tlasa mahlasipa a
kgethollo moo re neng re tshwantshwa le ditshwe ebile re bitswa megodutswane.
Afrika Borwa ena, ke ya rona bohle, bohle ba dulang ho yona seriti, hlompho le
ditokelo tsa bona di tshireletsehile.
[Time
expired.][Applause.]
Dr C P MULDER
Ms S H NTOMBELA
Dr [aj18]C P MULDER:
*** Language
spoken has changed to Afrikaans [aj19]***
Geagte Mevrou
die Huisvoorsitter, die agb lid Mtombela wat so pas gepraat het, het ’n lang
betoog gelewer oor die werklikheid van mense met ’n ander seksuele oriëntasie
wat in Suid-Afrika bestaan. Dit is ’n werklikheid en ons ontken dit nie, maar
dit is nie waaroor dit vandag gaan nie. Dit gaan vandag oor die instelling van
die huwelik en die werklikheid daar rondom. Hierdie wetsontwerp wat huwelike
tussen mense van dieselfde geslag sal moontlik maak, is uiters omstrede.
Niemand wil dit hê nie. Ook nie eens die meerderheid van die ANC se koukus nie.
Die ANC moes in ’n besluit al sy lede forseer om vandag vir hierdie wet te stem
en tog word dit deurgeforseer.
Die vraag kan gevra word: hoekom is dit die geval? Hoekom? Omdat die Woord van
God nie die hoogste gesag in hierdie land is nie, maar wel die mensgemaakte
grondwet. Die grondwet behoort daar te wees om die gemeenskap te dien. Dit kan
nooit korrek wees dat die grondwet kan verwag dat die gemeenskap sy eie waardes
moet verloën nie.
*** Language
spoken has changed to English [aj20]***
A constitution and its practical implications in law should take the values of
the community it serves into account. Exercising rights should not go against
the value system of society, because if it does, it estranges the constitution
from the community.
*** Language spoken has changed to Afrikaans [aj21]***
Dit is presies
wat hier gebeur. Hierdie saak druis in teen die waardestelsel van die breë
Suid-Afrikaanse gemeenskap.
*** Language
spoken has changed to English [aj22]***
The strong Christian nature of the South African community and the influence of
Islam and the traditional African religions in our communities are all strongly
opposed to the legitimising of marriages between persons of the same gender.
However, this government does not want to listen to the people and what they
are saying.
Afrikaans:
Die
Christelike gemeenskap is daarteen. Die Moslemgemeenskap is daarteen. Die
tradisionele leiers is daarteen en tog word dit deur geforseer.
English:
Marriage
is an institution created by God between a man and a woman. That is why God
created Adam and Eve and not Adam and Steve. We will vote against this Bill for
that reason. [Interjections.]
The MINISTER OF DEFENCE
Dr C P MULDER
The [aj23]MINISTER
OF DEFENCE: Madam Chairperson, hon members, I think it is important that we
place the Bill in its proper historical context. The roots of this Bill lie in
the pronouncements of our people over very many years and decades of struggle.
In particular, the roots of this Bill lie in the declaration our people made at
the Congress of the People in 1955. In the preamble of the Freedom Charter, our
people declared, and I quote:
Only a democratic state based on the will of all the people can secure to all
their birthright without distinction of colour, race, sex or belief.
It was this declaration amongst others, which guided us in drafting the present
democratic national Constitution, hailed throughout the world as one of the
most advanced, at this time.
The Constitution itself does not prevaricate on this question, for it says that
in Chapter 2, section 9, subsection 3. We ourselves declare to this House that:
The state may not unfairly discriminate directly and indirectly against anyone
on one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
What the Constitutional Court did was not to impose on us the task to make a
new law. Rather, the Constitutional Court drew our attention to the fact that
we have granted the right to all South African citizens to choose who to marry
or take as a life partner. That right is already granted to the citizens of our
country.
The Constitutional Court reminded us that, in this regard, we have not as yet
delivered in relation to those who prefer same-sex partners for life. They were
not saying: Grant new rights. They said: You have already granted this right,
but deliver on that right in relation to those who prefer same-sex partners.
They said that we had not done so because we had not aligned the law with the
basic law of the country, the Constitution.
The question before us, therefore, is not whether same-sex marriages or civil
unions are right or not. That’s not the question. The question is whether we
suppress those in our society who prefer same-sex partners or not. That is the
challenge. Are we going to suppress them? [Interjections.]
At this time, we are bound to fulfil the promises of democracy that we made to
the people of our country, especially during the long, hard years of struggle.
Are we going to suppress this so-called minority, or are we going to let these
people, like ourselves, enjoy the privilege of choosing who will be their life
partners or not?
By the way, voting for this Bill is not advocating. We are not being asked to
advocate same-sex marriages. We are being asked to grant this right, so if you
vote for this, you only deliver, you only grant the right to those concerned;
you will continue to live your life as you choose, but let’s grant the right to
those who also must exercise the same right.
We have no need indeed to preserve for ourselves, purely because of the
majority of our numbers, the exclusive right of marriage as recognisable in
law, while we deny others the same right. Why would we want to do that?
I take this opportunity to remind the House, to remind those who know, and
inform those who do not know, that in the long and arduous struggle for
democracy, very many men and women of homosexual and lesbian orientation joined
the ranks of the liberation and democratic forces. [Interjections.] Some went
into exile ... [Applause.] Some went into exile with the movement, yet others
went into the prisons of the country with us. They accepted long prison
sentences. Some stood with us, ready to face death sentences.
Indeed, as we stand here today, we can recall names and graves of comrades who
resisted and refused to cave in in the face of probable death sentences. How
then can we live with the reality that we should enjoy rights that we fought
together with for, side-by-side, and deny them that?
Today, as we reap the fruits of that democracy, it is only right that they must
be afforded similar space in the sunshine of our democracy. We do them no
favour, but reward their efforts in the same way that our own efforts are being
rewarded. I have to remind the House that, after all, culture is not static.
There was a time when voting was only for men. It was rejected that women
should vote. There was a time when society would not accept that women should
vote.
Yet, in the 1890s, New Zealand led the world in granting her women the right to
vote. Then, in 1918, Soviet Russia followed suit, and then, in 1921, Great
Britain followed. In 1924, the Soviet Union extended the right to women. In
this country, in 1930, white women, for the first time, were allowed to vote.
Culture is not static. There was a time when you could not even talk about the
possibility of a woman becoming a church minister. Today, denominations, one
after another, are accepting that women may indeed become church leaders and
church ministers. [Applause.]
Oh yes, there was a time when being a homosexual meant imprisonment. Just by
being a homosexual, you got locked up in jail. Oscar Wilde, in Victorian
England, was locked up in jail, not for any crime, but simply because he
declared his homosexuality. Today, Great Britain is a different society,
because culture is not static.
This country cannot afford to continue to be a prisoner of the backward,
timeworn prejudices, which have not basis. The time has come that we as this
society, as this Parliament, on behalf of our nation, must lead.
I therefore wish to urge members of the House to look past the prejudices of
our time, and grant this right to those who have been pleading with us for so
long now so that we may bequeath to succeeding generations a society democratic
and more tolerant than the one that was handed down to us by those who preceded
us. I thank you. [Applause.]
Mr B E PULE
The MINISTER OF DEFENCE
Mr [aj24]B
E PULE: Madam Chair, the UCDP will not align itself with any institution that
seeks to negate that marriage is between male and female. The argument that the
Constitution calls for same-sex marriages is lame, because that very same
Constitution is a result of men and women in this very same Chamber, whereas
the Bible has stood the test of time as the inspired word of God.
It is a sad day in the history of this country that such bad legislation has to
be passed in our time. What is the result of a union that does not procreate?
The legislation is bad in the sense that it allows 18-year-olds to enter into a
union even without the authority of their families.
Civil unions are a direct negation of attempts at moral regeneration. We should
expect that with civil unions succeeding, we will be legalising sodomy, because
the impression we are being given here is that the struggle was for sodomy and
not for freedom. [Interjections.] Otherwise, how are these men going to show
their marital status? [Interjections.]
The UCDP pities some members of this House who will vote for this Bill much
against their will, conscience and religion. Poor colleagues will be voting
through fear and not from a sense of justice. The UCDP will always look back
and curse the day on which this legislation was passed. [Interjections.] The
UCDP will not and will never support the Civil Union Bill. [Interjections.]
The HOUSE CHAIRPERSON (Ms C-S Botha): Thank you. Order, members! Order! Order!
Dr S E M PHEKO
Mr B E PULE
Dr [aj25]S
E M PHEKO: Chairperson, the traditional institution of a union between a man
and a woman for procreation must be protected. It cannot be equated with
same-sex unions. Same-sex marriages are so repugnant that only four countries
in the whole world have legalised them. Do we want our country to be the fifth
in the world and the first in Africa to be in this mess? [Interjections.] Which
country in Africa will accept leadership from a country that suffers from
Eurocentric eccentricity? Only those who have sold their souls to cultural
imperialism will support this obscenity.
It is hypocritical in the extreme to talk of moral regeneration and African
Renaissance and then to turn around and surrender to this cultural aberration.
It is no excuse that it is in the Constitution. It should never have been there
in the first place.
The issues in the country are landlessness, inhumane squatting, unaffordable
education, unemployment, lack of good health care and the eradication of
poverty. These are the things that people fought for.
This Bill needed a national referendum if this Parliament respects the people
of this country. A large body of scientific researchers has established that
there is no scientific basis for a homosexual gene. [Interjections.] [Izwe
lethu.] [Our land.] [Time expired.]
Mr J B SIBANYONI
Dr S E M PHEKO
Mr [aj26]J
B SIBANYONI: Hon Chairperson, members of the House ...
IsiNdebele [aj27]:
... kiledibheyidi, ngifuna ukuqala khulu khulu ngehlangothini lomthetho.
Lapho ngithi khona: Uthini umthetho? AbeSuthu bathi: Molao o reng? Amakhuwa
wona athi: Wat sê die wet? [What does the law say?]
English:
The Constitutional Court ruled that the definition of marriage under the common
law and the marriage formula in the Marriage Act of 1961 contradict the
Constitution and are invalid to the extent that they fail to provide the means
in terms of which same-sex couples could enjoy the status and benefits together
with the responsibilities that marriage accorded to heterosexual couples. In
this respect, the Marriage Act and the common law definition of marriage are in
conflict with the Constitution and violate the rights enshrined in the Freedom
Charter and our Bill of Rights.
I will not go into detail regarding the Freedom Charter because the hon Lekota
has already done that. But maybe I should immediately say that there are those
who are saying that we should consider amending the Constitution and taking
away the sexual orientation rights. To them I would like to say that that will
not be enough, because you would have to go further than the Constitution and
look at the Freedom Charter and try to amend the charter, which was signed in
1956 at which there were 2 808 delegates from all corners of the country.
They came from Sekhukhune, from the Cape, from Mafikeng and the like, and they
said that “All shall be equal before the law” and that all discriminatory laws
shall be abolished.
The quote cautioned providing a remedy to the effect that Parliament should
avoid 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 reproduce new forms of marginalisation. Historically, the concept
of separate but equal served as a threadbare cloak for covering distaste or
repudiation by those in power of the group subjected to segregation.
The hon Lekota has elaborated on the fact that when you are in power, you
should not oppress or suppress those who are not in power or who are in the
minority. Judge Sachs held that whatever legislative remedy was chosen must be
as generous and accepting towards same-sex couples as it was to heterosexual
couples, both in terms of the intangibles and the tangibles involved, and that
appropriate sensitivity must be shown to providing a remedy that was truly and
manifestly respectful of the dignity of same-sex couples.
I submit that the present Bill caters for this. Parliament, as we know, has
until 1 December to correct this defect. Also, the Constitutional Court has
said that if Parliament fails to do so, the word “spouse” will be read as being
added to the Marriage Act after the words “wife” or “husband” in order that the
defect is cured.
Now, in responding to the Constitutional Court judgment, Parliament enacted
this piece of legislation that goes a long way towards confirming our
constitutional values of equality, dignity and the advancement of human rights
and freedoms.
The Bill defines a civil union as the voluntary union of two persons who are
both 18 years of age or older, which is solemnised and registered by way of
either a marriage or a civil partnership in accordance with the procedures
prescribed in this Act to the exclusion, while it lasts, of all others. The
effect of this is that the Civil Union Bill is open to homosexuals,
heterosexuals and intersex persons. Intersex refers to persons with ambiguous
genitalia and who are neither male nor female. The Marriage Act excludes such
persons from marriage.
The Civil Union Bill sets the age of getting married at 18 years. This will be
in line with the Children’s Act when it comes into operation. The age of
majority will be 18 years. So, too, is the case with the age at which one can
become a voter.
The Marriage Act provides for females of 12 years and males of 16 years to get
married with the Minister’s consent. But this Civil Union Bill is saying
everybody will get married at the age of 18 years.
During the era of the parliamentary state in South Africa, there was what was
known as a constitutional crisis. The parliament at that time wanted to take
away the rights of coloureds as voters. When the court declared that law
invalid, parliament convened and created what they called a high court of
parliament. In that court they appointed people as judges who did not
necessarily have legal qualifications.
The court also declared that high court of parliament not to be a court of law,
but to be parliament operating under another name. I am supporting my argument
by saying: let us not do that. Instead, we are going to be affirming or giving
rights to the people who do not have rights.
IsiNdebele:
Ngifuna ukutjho ukuthi thina, njengabantu ababuya emtlhagweni we-apartheid,
umtlhago nobuhlungu siwazi khulu. Akusingithi godu esingajika sifune
ukugandelela abanye abantu sibakhuphele ngaphandle. Umhlonitjhwa ukhulumile
bonyana abantu ebebagandelelwa ngaphandle, bagandelelwa ngilabo ababaphetheko
begade bathwele budisi kangangani. U-Kalyan uthi thina esimalunga we-ANC
bazosigandelela ukuthi sivowude nofana sikhethe namhlanjesi. Mina-ke ngithi
sithabe khulu namhlanjesi ngombana sithole ithuba lokobana sivowude; sinikele
abantu amalungelo lawo ebegade banganawo; sibe babantu abanikela abantu
amalungelo lapha eSewula Afrika. Abanye bavika ngeBhayibheli. Ngifuna ukutjho
ukuthi ...
English:
... marriage is an institution recognised by the state in South Africa.
Marriage, in terms of the Marriage Act, is a civil act. It is not a religious
act.
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon member, your time has expired.
Mr J B SIBANYONI: I want to say that the ANC that lives and leads. We support
this Bill. [Applause.]
Mr S SIMMONS
Mr J B SIBANYONI
Mr [aj28]S
SIMMONS: Madam Chair, the UPSA will not support this Bill. [Interjections.] The
nature and content of this Bill clearly reflects that this institution, namely
Parliament, is abandoning the essence of its primary function. This primary
function is not just one of lawmaking, but rather of making laws that reflect
the norms and values of society.
The Civil Union Bill, in its very essence, represents everything against the
norms and values of our society at large. The acceptance of this Bill as an Act
would be a failure of this Parliament’s objective to give a true enunciation of
society’s values. The sensitive nature of this matter should have given
government the opportunity to test this matter, together with the death penalty
and affirmative action, by means of a referendum, precisely to test the will of
the people.
The desire to have such an ethically challenged law is the wish of only a
portion of society, minute in relation to the overwhelming majority of South
Africans that finds it undesirable. I thank you. [Interjections.] [Time
expired.]
Mr M R SIKAKANE
Mr S SIMMONS
Mr [aj29]M
R SIKAKANE: Chairperson, this is one Bill in which we should have had the Chair
saying, “As there is no speakers’ list, the Bill will be sent to the President
for concurrence,” or something like that. [Applause.] I don’t know what this is
all about, because are you here to suppress other people, to take away their
rights? I can’t understand you. What are you talking about? I just can’t
believe you.
I take the podium as a disadvantaged person in the sense that I don’t know what
happens with technology. This is not the first time that the Minister of
Defence has handicapped me. I used to play soccer and I was a star. I’m sorry
to tell you that. I played in Durban for Zulu Royals. I was called “Terror”.
[Applause.] And, as he is younger than me, when he came into the picture
playing for Claremont Home Defenders - we were playing at Msizini – just
because Claremont Home Defenders wanted him to be seen like terror, they
nicknamed him “Terror”. So all the time he has been following me. [Laughter.]
So, this time I wrote my speech, and the title is: Rights. Now I see he has
taken everything – every word – I have written in my speech. [Laughter.] I’m
really, really disadvantaged. I don’t know what happens with technology today.
I’m not sure.
I want to highlight two things. I won’t bore you now by going back to what my
namesake has said. I grew up in Empangeni in the rural area. When I opened my
eyes, our neighbour – I’m telling the IFP – was Mulondo. This baba was a huge
man, bearded like myself. He used to dress up like this, and then take a doek
and put it on his head and put on a pinafore. He was staying with a man, and
this was in my youth. When I talk about my youth, you must know I’m talking
about the 1940s. He was staying with a man in the rural area, but, for God’
sake, the community respected and accepted that situation. [Applause.] There
was no problem whatsoever.
In the early 1960s when I started working, I worked for the Department of Bantu
Administration in KwaMuhle, Durban. I went with Durban boy – the ANC used to
call him “Durban boy” – Johnny Makhatini. He stayed in North Street. Black
people could not stay in town, but he stayed in the back yard.
One day I was with him in his house and we were sitting there talking. There
were two guys there I didn’t know – with ... [Inaudible.] ... Ngoma, who was
the leader of the youth league. The next thing I saw a curtain open – there was
no door leading to the bedroom – and there tata Sulu came out. That was at the
time when they wanted tata Sulu dead or alive. He was hiding in Johnny
Makhatini’s room in North Street. He started saying to these guys: Hey, what
are you doing here? Didn’t I tell you to go and do one, two, three? They jumped
up and left. Afterwards, Johnny told me that they were gay, but there were
doing underground work for the ANC. They had been part of us in the struggle.
So, what are you saying today? [Applause.]
So, just to highlight my speech now ... [Laughter.] When we went out to these
public hearings, there was the outcry of “Change the Constitution; call for a
referendum”. All the time I was morose, feeling so out of place. I asked myself
that if people were saying: “Call for a referendum; change the Constitution”,
what does that mean? Does that mean that they want us to change the
Constitution so that we suppress other people? Because, in short, that is what
they were saying with their call for “change the Constitution; call for a
referendum”. Are you sitting here, wanting to suppress other people’s rights?
No, people, you can’t say that.
I won’t give my speech now; Terror, my namesake, has said everything. The other
thing I want to highlight is that when you say “Change the Constitution” and so
forth, what does that mean? Are you telling me you are the first people sitting
here to say: “This is our success; today I’m going to have a very good,
peaceful sleep”? Because I would say to myself this is one time I have made a
contribution because I have liberated other people, I have freed them; I have
given them equal rights just like everybody else. So, this is a good time for
members to pass and endorse this Bill. [Interjections.] And, understand one
thing: when the Constitutional Court said we must amend, what it was saying to
us was: “Parliament, you have repealed all discriminatory laws, but I think you
have overlooked this one. Just go and repeal this law so that everybody is
equal.” So, it is not actually the court that told us what to do. It reminded
us of our duty, of our function, to change and repeal this discriminatory law.
The other thing that bothered me during the hearings was people saying, “Don’t
use a certain word like ‘marriage’.” I was saying to people, “Where do you get
the right to say to other people ‘don’t use this word’?” No one seated here has
the right to say “The word ‘marriage’ belongs to me; it’s my right. Don’t use
it.” Where do you get the right to say, “This word belongs to us”, or “to me”
and “You mustn’t use the word ‘marriage’”?
I don’t want to say it’s all crazy when we use those terms. A very important
part of this is that today we are fulfilling the requirements of the Freedom
Charter. When you look at it all, all of our struggling, arrested for freedom,
arrested for nondiscrimination, arrested for uplifting the lives of other
people – how on earth could we think, in all of those respects, of not allowing
and giving other people their rights? We are fulfilling our document that was
crafted and done by the ANC. That is all we are supposed to do today.
I should thank you that finally we have now honoured the wishes and the
aspirations of other people by voting solidly for this Bill. I thank you,
Chairperson. [Applause.]
Mr L M GREEN
Mr J B SIBANYONI:
Mr [aj30]L
M GREEN: Chairperson, the FD will never support legislation that undermines the
Word of God. The FD rejects the Civil Union Bill because we believe it
undermines biblical values, especially the sanctity of marriage between a man
and a woman ordained by God.
Michael Cassidy of the Marriage Alliance of South Africa writes in a leaflet
entitled Same-Sex Marriage, why South Africa should say no to this
legislation:
I imagine some 98% of South Africans believe we should say no to the same-sex
marriage.
Let me add that I do not know of one Islamic country throughout the world that
would support same-sex civil unions. Most Islamic countries view same-sex
unions as the immoral decadents of the worst, and they are right in this
regard.
Why do committed Christians, Muslims and Jews collectively and unequivocally
reject same-sex relations, let alone civil unions? According to the Bible, the
Koran and Torah, homosexuality and lesbianism are an abomination in sight of
God. The versions of the creature He made in His own image.
Chairperson, I have two minutes and I only used one. [Interjections.] The Bible
says in the book of Leviticus 18:22 that homosexuality is absolutely forbidden
for it is an abomination.
God has some monopoly on human rights. He created us and he knows what is good
for us. He defines what is right and wrong, not culture or manmade
constitutions. God destroyed Sodom and Gomorrah because of the sin of
homosexuality.
In the New Testament God equally condemns homosexuality and same-sex unions,
especially in Romans 1:26, where the Bible says that, that is why God let go of
them and let them do all these things so that even their women turn against
God’s natural plan for them and indulge in sexual sin with each other.
As believers we must decide today whether we will accept and support God’s Word
or whether we will support the sexual orientation clause in the Constitution.
Our decision is quite; we believe that God is greater than our Constitution and
our courts and that His Word is the final authority. The FD therefore rejects
the Civil Union Bill with the contempt it deserves. [Applause.]
Mr [aj31]M
SWART
Mr [aj32]L
M GREEN
Mr [aj33]M
SWART: Chairperson, the Constitutional Court recently declared two Acts of
Parliament unconstitutional due to a lack of public consultation and
participation. The Portfolio Committee on Home Affairs however went to great
lengths and great expense to obtain the views of the public on the Civil Union
Bill being considered here today.
Interested parties were provided an opportunity to present Parliament with
written and oral submission and thousands of submissions were in fact received.
Public hearings were mostly held in rural areas and it became abundantly clear
that the majority of citizens preferred that reference to the words “marriage”
and “same-sex” be deleted from the Bill.
After conducting public hearings the portfolio committee held a series of
committee meetings at which very little was achieved. One of these meetings was
scheduled for 6 November 2006 in which members received scant notice of the
meeting. Diaries had to be rearranged and appointments called to attend the
meeting.
An hour before the scheduled time, members were advised that the meeting is
cancelled. No explanation for the cancellation of the meeting or an apology to
members has been forthcoming. It became abundantly clear then that then ANC had
not yet clarified their mandate. Committee members were asked to put their
mandates before the committee, which they did, but no input came from the ANC.
Only two days later the ANC came up with an amended Bill now before Parliament.
The Bill was steamrolled through the committee with no discussion being allowed
and in totally unprocedural and undemocratic manner it was virtual disregard of
the views of the
public.
According to press reports the chairperson of the portfolio committee now
states that the Bill should be regarded as an interim measure. Should this be
true, it would probably have been easier and cheaper to allow the
Constitutional Court judgement to take its fate, i.e., by inserting the word
“spouse” in the Marriage Act.
It would have achieved the same result as this new Bill and it could have been
amended in time to come. By just having two Bills, it could be seen as
discrimination. The Bill is therefore unconstitutional; it would attract
constitutional action and government should not be surprised if they land up
with egg on their face once more.
[aj34]
The DEPUTY MINISTER OF JUSTICE
Mr [aj35]M
SWART
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT[aj36]:
Chairperson, hon members, ladies and gentlemen, when I was growing up in a
Christian home I was told - God is love. I was told that religion is about
tolerance, inclusivity and love.
I am ashamed to be South African and to have experienced what people had to
experience before the passing of this Bill and by some of the things that were
said in this House.
If God is the God of love and you want to come and profess that God to us then
show us his loving face. That is what you should be doing. [Applause]
Afrikaans:
Jammer, het ek nie vir jou gewys nie. [Sorry, I didn’t show you.]
English:
I think the second issue is that the ANC has very clearly stated its position
on this. The Constitution is very clear; we are not doing any favours to gay
people here. We are not giving them little pieces of goodwill. We are here
dealing with what we have decided at least 12 years ago when the equality
clause was passed, which said we should not discriminate on the basis of sex,
sexual orientation or marital status. That is what your Constitution says.
Today some of the people that helped pass that Constitution sit here with wide
eyes and say: But we could never have meant that. What on earth do you think
you meant ... [Laughter.] ... if you said you are not going to discriminate on
the basis of marital and on the basis of sexual orientation?
So, the ANC position which comes from long before the Constitution, which has
been entrenched to the Constitution, is that these are rights that a group that
has been marginalised in society are entitled to and all that we are doing is
making sure that we bring an alignment.
Some people have said here that this has happened the other day. I would remind
you that when the Fourie judgment was given, the ANC already made a statement
on this matter. On 1 December 2005, the ANC had the following to say about the
Fourie judgment:
The ANC reaffirms its view that citizens should not be discriminated against on
the basis of sexual orientation and that the Constitution’s legal system and
institutions of state have a responsibility to uphold that basic human right.
Today’s ruling, like others before it, is an important step forward in aligning
the laws of the country with the rights and freedoms contained in the South
African Constitution. So, the issue is not whether we should give rights. The
issue is how we should do that, and I will get back to that in a minute.
The second issue, we have some luminaries here, the hon Kalyan being one and
the hon Greyling. They tell us that it is definitely going to be
unconstitutional to allow people to not solemnise marriages on the basis of
their conscience. Now, I see there is a law adviser who also said this in the
newspaper. I find this stunning, because all you had to do is to go and read
the judgment, which deals with this issue.
So, it shows me that all those members and the legal adviser didn’t read it.
Let me remind you what Judge Sachs said on dealing with this issue about
conscience. It says in paragraph 159:
The principle of reasonable accommodation could be applied by the state to
ensure that civil marriage officers who had sincere religious objections to
officiating at same-sex marriages would not themselves be obliged to do so if
this resulted in the violation of their conscience.
It goes on to quote the Christian education case where it ends off by saying:
At the same time the state should wherever reasonably possible seek to avoid
putting believers to extremely painful and intensely burdensome choices of
either being true to their faith or else respectful to the law.
The judgment dealt with it. It says:
Do not allow such people to be forced to do against their conscience.
Now, we are told that the Constitutional Court will find that to be
unconstitutional. I think the issue here is simply this, the Constitutional
Court in its court order did two things, the substance of marriages is only
dealt with in two places; in the common law, the definition of marriage and in
the formula for marriage is the substance of marriage dealt with.
In then rest of the Marriage Act it is just the procedures and processes how
you do that. Those two substantive issues the court found to be
unconstitutional, both the definition of marriage and the formula to marriage.
Now, the issue for us in government was not whether we would allow this or not,
it was how to do it best. The problem with amending the Marriage Act is that
the Marriage Act we all know really catered for Christian marriages of a
certain kind. By doing so there were certain unforeseen circumstances that we
are very worried about. For example, the Act, as it stands today, allows girls
between 15 and 21 to marry. It allows girls under the age of 15 to marry if
they have the permission of the Minister to do so.
So, if we were to amend the Marriage Act the consequence of that is that we
would have had that problem of children at very young and tender ages getting
involved in gay marriages or trying to do so and creating further controversy
in society. [Time expired.]
There were other two unforeseen circumstances. I do not have time to deal with
them, but we will do so at a later occasion. Thank you very much. [Applause.]
The MINISTER OF HOME AFFAIRS
THE DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
The [aj37]MINISTER
OF HOME AFFAIRS: Madam Chair, I just want to correct the fact that some people
have made comments which I really think are not correct, and we need to set the
record straight.
It is not true that we are dealing here with a new piece of legislation. I
think what we are dealing with here is the same Bill which was presented before
the portfolio committee or before Parliament.
What has happened is that, on the basis of what has emerged from the public
participation process and from the consultation with a variety of stakeholders,
certain amendments have been made and that’s what we are dealing with here. So,
there is no new piece of legislation.
If I may touch on just two of those, most stakeholders actually made the point
that there is a need to deal with the issue of domestic partnerships at a later
date, because we had no constitutional deadline to meet. That has been removed
from this piece of legislation.
The second issue was the issue of being separate but equal. In spite of trying
our best to meet the two principles which were made by the Constitutional Court
and also to look at the rights, status, benefits and the responsibilities to
give all those to same-sex couples in this particular piece of legislation, people
still maintained that this was a separate but equal route. The religious
groupings were raising the issue of, for instance, the fact about even the mere
mention of same-sex.
To deal with the issue of separate but equal, we then had to actually make sure
that this Bill did not only cater for same-sex couples but also for
heterosexual couples who want to go the civil partnership route. That’s what we
have done here.
So, it is not a new piece, but one area which remains contentious, which I
believe is still in the public discourse and there is a need to engage on, is
the whole issue of marriage. There has been insistence on that from quite a
number of stakeholders that there should be no reference to marriage at all in
this piece of legislation. That is the one issue which is the bone of
contention here.
What we have been advised is that we then have to engage in a discussion as
whether having marriage in this piece of legislation is a legal necessity or a
legal nicety. That’s what somebody said. It was said, in fact, that it is a
legal necessity because what we are likely be confronted with is a ruling
against the Bill, that it is unconstitutional even before people have even
looked at this piece of legislation.
I am not sure if in this debate, by rejecting this piece of legislation, people
are suggesting that perhaps government should have allowed the courts to then
amend the Marriage Act on 1 December.
We believe we knew when we brought about this Civil Union Bill that this is not
a matter society is going to agree on. That society is polarised. We are a
divided society on this matter, but we have a responsibility of conducting
continuous public education, of actually talking to people about the rights
which have been provided by this very Constitution which we all passed in 1996;
which we provided to all the people of South Africa. We now have a
responsibility to deliver the promise contained, amongst others, in that
Constitution and that Bill of Rights and that’s what we are trying to provide
here.
Now I just thought that we needed to set the records straight that it is not
true that we are bringing in a new piece of legislation.
However, people in fact – I have actually seen the submissions of all the
parties, including the submission from the DA. One of the proposals you made
two weeks or a week ago before this matter was finalised was the issue of
actually ensuring that this Bill does not just cater for same-sex partnerships
but also is inclusive and therefore you have two consenting adults allowed to
go the route of a civil union if they so wish. [Interjections.] You did say
that.
But, secondly, you yourselves proposed in your submissions that the entire
clause on domestic partnerships should be removed. That is exactly what has
happened here; it has been removed.
The issue revolves around marriage, and I think it is the responsibility of all
parties, not just the opposition party or the ANC. Our responsibility as
leadership or representatives is to continuously engage on the issue because of
course some of the people are going to be voting for the Bill because they have
obligation to do so to provide these rights, not necessarily because people may
be agree about this particular issue.
The last thing I want to say is, I think we all have a responsibility to step
back, remove ourselves from the situation and look at the rights of a
particular grouping of people here in this country, which does exist. It does
exist and you cannot wish them away. There is no dustbin where you are going to
collect a particular group of people and throw them into. We have a
responsibility to society. Thank you. [Applause.]
Debate [aj38]concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided.
[TAKE IN FROM MINUTES]
[aj39]Mr
[aj40]J
P I BLANCHÉ: Madam Chair, we seem to have a fault with some of the equipment.
Would it have been registered or not?
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon Blanché, will you come to the Table,
and they can record your vote here please?
Question agreed to.
Bill accordingly read a second time.
The MINISTER OF PUBLIC ENTERPRISES
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