Kgoshi M L MOKOENA

National Council of Provinces Debate, 28 November 2006 (Unrevised Hansard)

Kgoshi M L MOKOENA

CIVIL UNION BILL
(CONSIDERATION OF BILL AND OF REPORT OF SELECT COMMITTEE ON SOCIAL SERVICES THEREON)

The [aj1] MINISTER OF HOME AFFAIRS: Chairperson of the NCOP, Chair of the Select Committee on Social Services, hon Joyce Masilo, members of the Select Committee, hon members, colleagues and friends, today is the culmination of an important process in the consolidation of our democracy. Over the past few months, our Parliament has led the public in engaging on one of the most emotive and difficult issues since the dawn of democracy in our country. This work culminates with a debate in this House on the Civil Union Bill, which was passed in the National Assembly two weeks ago.

I must emphasise that the adoption of the Civil Union Bill is in itself not the end of the public engagement process. The public debate has however brought forth the issue of the extent to which society is prepared to adhere to the Constitution as an embodiment of our democratic values.

The question that has been asked repeatedly over the past few months since the introduction of the Bill has been: ``why?’’ Why is it that this government feels compelled and determined to pass a piece of legislation that has caused so much controversy, which has polarised our society? The answer to that question stems from our belief in, and our struggle for equality for all people in the true sense of the word.

Perhaps the most important foundation that laid the basis for our principle of equality were the remarks of the late ANC President, Pixley ka Isaka Seme, during his keynote address on 8 January 1912 when the movement of our people was born. His premise for a united action against all forms of oppression was that: “We are one people”. He went on to say:
We have called you therefore to this conference so that we can together devise ways and means of forming our national union for the purpose of creating national unity and defending our rights and privileges.

From the onset, the ANC has always had as its historic mission the unity of our people and the defence of their rights. It is very important that the seriousness that the ANC attaches to the ability of every human being to enjoy rights and privileges should be understood within this historic context.

The ANC has always associated the issue of rights with the accomplishment and the logical conclusion of the struggle for freedom. We have maintained that our country can never be truly free if any segment of our society is still denied their rights and liberties. Accordingly, in the drafting of our Freedom Charter in 1955, we proclaimed:
Only a democratic state, based on the will of the people, can secure to all their birthright without distinction of colour, race, sex or belief. That our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities. We indeed further proclaimed that all people shall have equal rights.

I’m raising these issues here because there are some who have argued that we can afford to take the rights of same-sex couples lightly in our country. In anyway, our commitment to these rights only came with the new democratic constitution. Not only is this assertion wrong, but also it is a misinterpretation of what our struggle for freedom was about. As you will note from the history of our struggle, our people have always been impatient with the state-driven discrimination as well as the treatment of any section of our society as outcasts and second-class citizens undeserving of rights accorded to the rest of the population.

It was with this in mind that government, in the context of its political and legal obligations, started with the process of aligning old apartheid legislation with the Constitution, including the Marriage Act of 1961.

The SA Law Reform Commission started a consultative process on the changes to the legal regime governing marriages as early as 1996, two years after the attainment of democracy in our country. However, during that process, the definition of marriage in our current law faced a challenge within our courts. The Constitutional Court declared that the definition of marriage under common law and marriage formula as set out in section 30(1) of the Marriage Act 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 benefits coupled with 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 would be read as including the words “or spouse” after the words “or husband”. This current Bill was drafted in response to the court’s judgement in the Fourie case.

The court, while noting that “equal” does not mean “identical”, ruled that it would be helpful to point to certain guiding constitutional principles. In terms of the first guiding principle, the objectives of the new measure must be to promote human dignity; the achievement of equality; the advancement of human rights and freedoms.

The second guiding principle states that Parliament be sensitive to the need to avoid a remedy that on the face of it we provide equal protection but would do so in a manner that is calculated to reproduce new forms of marginalisation. Whatever legislative remedy is chosen, it must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of intangibles and tangibles.

It is our view that the Civil Union Bill, presently before this House, indeed satisfies the order of the court. The objects of the Civil Union Bill are to provide for the public solemnisation and registration of civil unions by way of either a marriage or civil partnership and to provide for the legal consequences thereof.

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 civil partnership. Care has been taken to ensure that a distinction is drawn between the responsibilities of church and state as section 15(3) of the Constitution calls for 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 must 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 union solemnised and registered as a civil partnership by a state employed marriage officer.

I must restate government’s unequivocal commitment to ensuring that this country has one legal framework governing marriage and that such legal framework should be based on the principle of respect for human rights and dignity for all.

The [aj2] harmonisation of legislation and the building of a framework that governs family law are paramount in our priorities for public policy review.

I am aware that this has been one of the most difficult pieces of legislation to engage with, but I hope that all of us will understand the responsibilities of each one of us seated here to provide leadership to our nation even if it seems hard.

As I said during the debate in the National Assembly, we elected to fulfil the directive of the Constitutional Court by introducing this Bill instead of allowing a situation where the court amends the Marriage Act. In that way, we have ensured the responsibility to pass and amend legislation.

In this regard, I must thank hon Members of Parliament for their commitment to dealing with this Bill within the timeframe provided by the Constitutional Court. I must particularly thank members of this House, and in particular, the select committee, for their preparedness to stay behind to deal with this Bill despite this period being a constituency period.

I want to thank you, Chairperson. In spite of all the difficulties we came across along the way, all of us were interacting during this time. It was a very difficult period but, nonetheless, we have all come to a point where we can pass this difficulty and overcome this difficult process. Ke a leboga. [Applause.]

Ms J M MASILO
The MINISTER OF HOME AFFAIRS

Setswana:
Ms [aj3] J M MASILO: Ke a leboga Modulasetulo yo o tlotlegang.

English:
Hon Chairperson, hon Minister, hon Members of Parliament, senior officials of the government, ladies and gentlemen, the National Council of Province’s Select Committee on Social Services rises to support the passing and enacting of the Civil Union Bill which was presented by the Department of Home Affairs to the committee on 21 November 2006.

Amidst a difficult process, I still stand here with immense pride that we as members of the People’s Parliament continue to fulfil the mandate given to us by our people to take Parliament to the people by decisively formulating legislation that is transformative for a better life for all the people of South Africa.

When the ANC government manifests for a better life for all, it means as such a better life for all South Africans, irrespective of race, sex, ethnicity, religion, disability, age and sexual orientation. This manifestation by the ANC-led government is a credible, consistent endorsement of section 9 (3) of the Constitution of the Republic of South Africa of 1996. The provision officially made South Africa the first African country to enshrine gay and lesbian rights in its Constitution. This protects gays and lesbians against all forms of unfair discrimination.

The judgment handed down by Constitutional Court in 2005 obligated Parliament to fix the law that limits marriage to a pact between man and woman should have come with neither surprise nor furore. In the words of the Constitutional Court, South Africa as a nation needs to continue affirming “the character of our society as one founded and based on tolerance and mutual respect.”

Also, we are all witnesses in this House that this country was able to premise its healing phase by utilising our Constitution as the supreme law to transform a society that was brutalised by colonialism and a racist apartheid regime.

Yet we as South Africans have been consistently reminded and rightly reprimanded by the most Reverend Archbishop Tutu that:
Despite our Constitution, we still treat homosexuals as pariahs and push them outside our communities. We make them - homosexuals - doubt that they too are children of God - and this must be nearly the ultimate blasphemy.

Indeed, of the 128 submissions received by the National Council of Provinces’ Select Committee on Social Services, the majority of those groups who submitted comprehensively rejected the Civil Union Bill. Their basis for rejection was that marriage is an institution created by God, a union between a man and woman only. Some rejected that legislation as being unAfrican, as the Bill allegedly derogates African traditions and cultures.

This ANC-led government will always give true meaning to the concept of a People’s Parliament, and as such, submissions from all angles, whether in favour or against the Bill, have been given their due consideration, respect and honour. Notwithstanding this, it is also the duty of the ANC-led government to give true meaning to the fundamental principle of our Constitution. Significantly, Parliament’s theme for this year 2006 is, “All shall have equal rights before the law.”

Anything contrary to this fundamental principle is inhuman, as we have been reminded by Archbishop Desmond Tutu, our own reverend Nobel Peace Prize winner who is a Christian and an African. The Archbishop has always continued to publicly comment and to unapologetically acknowledge that homophobia or hating and discriminating against homosexuals is a crime against humanity and every bit unjust and evil as apartheid.

We are empowered by this Civil Union Bill to enact a civil union between two consenting adults regardless whether they are from a traditional, customary, Khosi, Christian, Muslim, Jewish, etc background.

As we all know, the current Marriage Act of 1961 does not even recognise marriages of other religions, and this is a blindly Christian bias. The Civil Union Bill thus facilitates for an enhanced constitutional right for all religious marriages. For instance, this Bill empowers the Minister of Home Affairs to designate a minister of any religion holding a responsible position in or her respective religious institution to become a religious marriage officer.

This is in line with the Constitutional Court judgment. As per the Constitutional Court, our Constitution recognises “the multitude of the family formation in South Africa and inappropriateness of entrenching any particular form as the only socially and legal acceptable one”.

The Constitutional Court judgment sent a clear message that all South African adults have the right to choose their families and relationships while enjoying equal protection by the law.

The above judgment then means that we as South Africans may no longer define or understand marriage solely from the premise of preserving accumulated beliefs, customs and religion within a group.

The Civil Union Bill wisely shifts our paradigm to make us also understand that marriage is an expression of a dignified and solemn covenant between any two consenting adults irrespective of race, religious tradition or sexual orientation. This means then that gays and lesbians will no longer bear the state of not having inherent dignity and to always be regarded as not worthy of human respect.

This Bill enables all capable consenting adults to express and share love and its manifold forms, meaning that gays and lesbians are also capable of constituting a family, including affection. They love the soul.

This ANC-led government has and will also be lucid, transparent and consistent in embracing the Constitution of South Africa in its entirety. The People’s Parliament will continue to respect the ruling of all courts, institutions of law. We will fulfil its mandate of making transformative legislation.

We as South Africans are invited by our progressive Constitution to work in partnership with government to make visible and accessible the benefits enshrined in the Constitution and a Civil Union Bill for a better life for all citizens of this country.

In so doing, we will also be honouring in earnest the recent convention this Parliament recently approved of protecting and promoting the diversity of cultural expressions so that South Africa continues to be a multicultural society that vigorously values and propagates diversity, co-existence and tolerance.

In conclusion, I would like to express my sincere gratitude to the hon members of the Select Committee on Social Services for the sterling work done in their respective national constituencies in processing this Bill successfully. A word of appreciation also goes to our hon Minster of Home Affairs and her officials for their dedicated support to our select committee.

Above all, we say a big thank you to those patriotic citizens who made submissions. They have indeed added value to our democratic process. I thank you. [Applause.]

Mr [aj4] O M THETJENG

Ms J M MASILO

Mr [aj5] O M THETJENG: Chairperson, it is a pleasure today for me to stand in this House to debate the Civil Union Bill that intends to unionise same-gender relationships. I have noted the submissions provided to the portfolio committee and of the select committee.

It is clear that the majority of South Africans are against this Bill. I have gone through the unrevised Hansard of 14 November 2006 of the National Assembly. The majority of people present on the day voted in favour of the Bill. The DA has given its members a free vote, that is, each member will vote according to his conscience and I will exercise that right as availed to me.

I am going to vote against this Bill based on my Christian convictions which I am not ready to compromise. My colleagues in the DA in this House will vote according to their conscience and will do one of the following: vote in favour, vote against or abstain depending on their choices. This is democracy at its best, as individual members are not coerced into a particular position.

The ANC has instructed its members to vote in favour of the Bill without fail, and they have complied with the instructions. [Interjections.] Others, who in all probability, would have voted against the Bill, were sent for activities outside Parliament so that they are absent during the debate and not there for the voting because they would embarrass the ANC.

Where is Reverend Moatshe today? Where is democracy? Has it been thrown out of the window? I hope and believe that this won’t be repeated in this House today.

The [aj6] CHIEF WHIP OF THE COUNCIL: Chairperson, I want to ask a question if the member is promoting that members should vote against the Constitutional Court’s ruling?

The [aj7] CHAIRPERSON OF THE NCOP: Hon member, are you willing to take a question?

Mr [aj8] O M THETJENG: No, I am not.

The [aj9] CHAIRPERSON OF THE NCOP: He is not willing to take a question. Continue.

Mr [aj10] O M THETJENG: Some gay and lesbian groups are not in favour of this Bill because it does not address the aspect of marriage, as they would have wanted it. This means it still falls short of their expectations.

Many more South Africans do not believe that this is the right thing to do and I concur with them. I am also quite aware that the Constitution of this country does not only protect the majority of the people, but also minority groups. There is also a Bill of Rights that protects and guarantees the basic rights to all South Africans irrespective of race, gender, creed and sexual orientation, etc.

But for me personally there is a bigger Constitution written under the inspiration under the power of the Holy Ghost called the Bible. For my fellow Christians, like myself, it has all answers to life’s challenges both good and bad. It also provides you with information on how you need to go about solving negative or bad challenges as well as providing ways to hold onto good morals.

Somebody asked a question during the public hearings and referred to the issue of morals according to whose standards? The answer is: God’s standards as laid out in his Holy Book. He created male and female for procreation and Christians believe that the word “female” means “a male able to carry a foetus”. There is nothing called an alternative lifestyle other than the one determined by God. Any other lifestyle is an abomination before the eyes of God.

Organisations from churches, religious groupings, traditional and ordinary people came in numbers to present their arguments in the public hearings. More than 95% - and I agree with the chairperson of the committee that it could be 99,9% - have literally come to present their submissions and are not in favour of this particular Bill. I also agree with the Minister to say that this has created polarisation in our society. Some have called for a referendum, but I don’t think this is the right way to go about it.

Were these public hearings conducted for the sake of complying with procedures and not meant to honestly consider submissions from the public? The answer is: yes. Members of the ANC in the committee displayed an attitude of you may say whatever you like but we are ready to effect any changes.

Were they complying with instructions from their senior office bearers? The answer is: yes. Why did this committee call for public hearings when inputs were not valued and considered? Is this how the ANC undermines the public that honestly responds when required to do so by Parliament that they have voted in?

The portfolio committee went thorough our nine provinces to conduct public hearings. What happened to the inputs submitted during the public hearings? Take a guess. Why then do we waste time and money by conducting public hearings when the inputs are ignored?

Some called for a Constitutional amendment since the Constitution has been amended about 13 times. They were told ... [Interjections.]

Mr B J TOLO: Will the member take a question?

The [aj11] CHAIRPERSON OF THE NCOP: Are you prepared to take a question?

Mr [aj12] O M THETJENG: No.

The [aj13] CHAIRPERSON OF THE NCOP: He is not prepared. Continue, hon member.

Mr [aj14] O M THETJENG: They were told in no uncertain terms that the ANC cannot and will never amend the Constitution. The DA is not going to take a particular position as a party as reflected above. A free vote is accorded to them and they are entitled to vote as they see fit.

Thank you, and I believe South Africans will take note of what happened in this particular House and I say: South Africans take note that those people that you put in power are not considering your inputs.

Mrs [aj15] J N VILAKAZI
Mr [aj16] O M THETJENG

Mrs [aj17] J N VILAKAZI: Chairperson, hon Minister and hon members, it is obvious and it must be accepted that the majority of larger sections of our community are totally opposed to this Bill, my party as well.

The ANC is passing this Bill against odds using its majority status and disregarding the overwhelming number of submissions made by people from various sectors of society, who were vehemently opposing this Bill. It is shameful!

The IFP has always very strongly espoused family values and is ultimately guided by deep-seated religious and moral values. Same-sex unions ... [Interjections.]

Mr B J TOLO: Is the hon member prepared to take a question?

The CHAIRPERSON OF THE NCOP: Hon member, are you going to take a question?

Mrs [aj18] J N VILAKAZI: No, I am not taking any question. [Laughter.] I am in the podium now and I did not interfere with you. Please sit down.

Mr B J TOLO: Chairperson is the hon member afraid?

Mrs [aj19] J N VILAKAZI: I am not taking any question here. I could do that outside.

Mr B J TOLO: Are you afraid?

Mrs [aj20] J N VILAKAZI: I will do that outside.

The CHAIRPERSON OF THE NCOP[jh21] : Continue, hon member.

Mrs [aj22] J N VILAKAZI: Thank you very much, Chairperson, for coming to my rescue. The IFP has always very strongly espoused family values and it is ultimately guided by deep-seated religious and moral values. Same-sex unions are inconsistent with culture and traditional family values.

This Bill will obviously lead to the disintegration of family life and will encourage abnormal sexual behaviour, which corrupts society and that is besides the corruption that we are experiencing now. We still expect more corruption to come.

Our country is faced with innumerable social ills, tangibly tearing up the moral fabric of society and this Bill will further bring more havoc and degeneration in society. [Laughter.]

Now, I am pleading: All God-fearing people must indeed say this: Cry the beloved, South Africa. I thank you. [Applause.]

Mrs A N D QIKANI

Mrs J VILAKAZI

Mrs [aj23] A N D QIKANI: Chairperson, hon Minister, hon members, the main source of disagreement regarding the Bill relates to the equality clause in the Bill of Rights, specifically clause 9(3) which states that we may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including age, race, disability, religion, belief, culture or birth.

What we have seen during the public participation process is that a wide variety of institutions and organisations representing various sectors of society have shown an intense interest in this Bill and the issue of homosexual marriage. This included religious and cultural groups and many different legal opinions were raised. Despite these varying opinions, it was clear that the vast majority of religious representatives before the committee, representing the majority of religions in the country, were opposed to the Bill.

The Christian representatives that appeared before the committee also claim that the Bible explicitly prohibits homosexual behaviour. The specific references are around Leviticus 18: verse 22 and 20, verse 13 which explains thus that this act and orientation is detestable before God. Also in Corinthians: 6 verse 10 and Timothy: 1 verse 10, and Romans: 1 verse 26 and 27, it is stated that the act and orientation is sodomic, unnaturally shameful and against the doctrine of nature. This doctrine of nature is captured in Genesis 1: verse 28 where it says, “Be fruitful and multiply. Fill the earth and subdue it.”

Marriage is a union that achieves oneness between a man and a woman. In Christian theology this means a man without a woman is incomplete just as a woman without a man is incomplete. This is then why the Bible states that a man plus a woman is equal to one instead of two because they are halves. That becomes a single whole through the act of marriage, and in that marriage ordained by God ... [Interjections.]

Mr J B TOLO: Is the member willing to take a question?

The CHAIRPERSON OF THE NCOP: Are you wiling to take a question, hon member?
Mrs [aj24] A N D QIKANI: No, Chairperson.

IsiXhosa:
Hayi, Bawo uTola Hlala phantsi. [Kwahlekwa.]

English:
They can reproduce, fulfil the blessing of and command of God as expressed in Genesis 1: verse 28. Marriage and marital sex from the perspective of Christian god is for procreation, to produce offspring. This means now that you are dependant on each other for everything. From this perspective for Christianity, homosexual marriages will be non-reproductive, incomplete and constantly dependant on other institutions for procreation.

IsiXhosa [aj25] :
Mhlalingaphambili, xa ndigqibezela mandithi, andihlali endlwini yamagqirha wona athi: Vumani nonke. Andivumi. [Kwahlekwa.]

Mr N D HENDRICKS

Ms A N D QIKANI

Mr [aj26] N D HENDRICKS Hon Chairperson, hon members, I hope you will give us a chance to speak. Thank you. The nation awaits your verdict today on what must be the most controversial of all the Bills ever to reach Parliament since the advent of our democracy.

The Constitution of the RSA provides that everyone is equal before the law and has a right to equal protection and benefit of the law. It is speaking about equality, but what we are talking about here is right and wrong, not equality. The fact is that we are about to pass a Bill which legalises sodomy, a disastrous message to the youth. It’s about what message we are sending to the youth.

I have not come here today to judge anybody in their personal lifestyles. For that they, like myself, will have to give an account before the almighty God but, Chairperson, this Bill will seriously affect the very fabric of our society and the family unit as we know it. Children will suffer psychological setbacks and, in short, we are failing the nation. Already with people in those kinds of units, children are already showing those kinds of signs.

We have called for public input yet when men and women of God of various religious faiths asked us to consider this Bill, we say it is not possible because of the Constitution. Why did we bother to go to the public? Were we just going through motions?

The Constitution is not written in stone and in fact has been amended several times. It was written by fallible men and women, and it has to be tested and it was said so at the time. It could never be perfect.

Some people argue that because we are a secular state, the word of God has no place in our argument. The fact is the scripture says, “God rules in the affairs of men” ... [Interjections.]

Mr [aj27] M A SULLIMAN: Is the member prepared to take a question?

Mr [aj28] N D HENDRICKS: Not at all, sir. [Interjections.]

The fact is - and I will repeat this in case the hon member has not heard - this. The fact is that God says in his word that he rules in the affairs of men and, worse, through the passage of time God has judged several nations for disobedience. We mustn’t think that as nation we can do what we want to do.

I make no excuse for quoting Scripture and our sister there has quoted a number of Scriptures which I wanted to quote to you because even the last couple of speeches I heard from our President, he has been quoting Scripture ad nauseam, so I make no excuse, as my value system is based on the word of God, right.

In short, the marriage of two people of the same sex is unnatural, and makes a mockery of the sanctity of marriage and sends a wrong message to already confused and traumatised youth that wrong can also be right. [Interjections.] We are totally against this Bill in the UIF. Thank you.

Ms N M MADLALA-MAGUBANE

Mr N D HENDRICKS

IsiZulu:
Ms [aj29] N M MADLALA-MAGUBANE: Sihlalo, ngibingelela uNgqongqoshe kazwelonke, ngibingelele abasebenzi boMnyango, ngibingelele nabahlonishwa. Ngaphambi kokuba ngethule inkulumo, ngithanda ukubhekisa lokhu engizokusho kwilingu elihloniphekile uThetjeng. Ilungu elihloniphekile uThetjeng lalingekho nhlobo ngenkathi silalele imibono yemiphakathi. Weza imizuzu enga-30 efuna ukuzokhombisa kwabezindaba ukuthi i-DA yabe ikhona. [Ubuwelewele.]

English:
What I want to say to you is that it doesn’t mean we mustn’t guide the majority of organisations that oppose this Bill. As the ANC, we are there to guide the public, not to mislead them. [Interjections.] I want to say to hon QIKANI and hon Hendricks: We are not in church here. [Interjections.] We know the Scriptures. We do attend our churches. [Interjections.]

The CHAIRPERSON OF THE NCOP: Hon members, order! [Interjections.] Order! Order!

Ms N M MADLALA-MAGUBANE: Lastly, I want to say to them ... [Interjections.] Chairperson, can you protect me.

The CHAIRPERSON OF THE NCOP: Order! Mr Krumbock! Mr Krumbock, it is an unbecoming behaviour in the House to be pointing your finger like that to a member. Please desist from doing that.

IsiZulu: [aj30]
Ngizokuthola ngaphandle. Ngizokuthola ngaphandle. [Uhleko.]

English: [aj31]
The CHAIRPERSON OF THE NCOP: Let’s not say that. Continue, hon member.

Ms N M MADLALA-MAGUBANE: I want to say to them that, in our different parties as we are here, we do have such people amongst us and they are members. So they need our support. Why don’t we support them? Are we after their votes only and don’t we support them? [Interjections.] Chairperson, I am now beginning my speech.

IsiZulu: [aj32]
Mangikusho ukuthi namhlanje usuku olukhulu, ngoba ngani kuwusuku lokuvuna ezinye zezithelo zenkululeko esayilwela kuleli lakithi. Ngemuva kokuthola inkululeko ngonyaka ka-1994, sakubeka kwacaca singuKhongolose ukuthi ubandlululo kanye noqhekeko phakathi kwesizwe saseNingizimu Afrika sizokulwa nakho.

Inhloso yalo mthetho ukubhekela ukuthi iNingizimu Afrika iyizwe elibumbene, inamalungelo omuntu wonke - akukhathalekile noma owaliphi ibala, nokuthi uyinhloboni yobulili noma inhloboni yenkolo. Sazibophezela-ke thina siwuKhongolose ukuthi sizoluqeda lonke ubandlululo. Lokhu kwashicilelwa kuSomqulu Wenkululeko ngonyaka we-1955 eKliptown.

Ubandlululo lwenza ukuthi sinyezane, singabi nenhlonipho komunye umuntu, sehlise isithunzi somunye umuntu. Mangisho ngithi lo Mthethosivivinywa ubuyisa isithunzi somuntu ngokungangabazi. Ubuye futhi unikeze amalungelo alinganayo, phecelezi “all shall have equal rights”.

Mangisho ukuthi uma siqala le ndima ngokubuyisana kuleli. Ngemuva kwe-1994, owayenguMongameli uNelson Rolihlahla Mandela waphawula kanje:
The time for the healing of wounds of the past has come. The moment to bridge the chasms that divide us has come. The time to build is upon us.

Ake ngiphawule ngezinye zezihloko kulo Mthethosivivinywa. Abashadisi ezinkantolo bazogunyazwa ngokuphelele ukushadisa ongqingili uma bekudinga. Lo mthetho uzogunyaza abafundisi banoma ngabe iliphi isonto noma inkonzo ukuthi bafake isicelo sokugunyazwa ukushadisa ongqingili. Lo mthetho awusoze uphoqelele abafundisi uma bengenaso isifiso salokho. Maqondana nohlu lokubhaliswa kwemishado, bobabili ongqingili kuzodingeka babhale phansi basho ukuthi banesifiso sokushada, basayine ifomu elithize. Kuzofuneka ofakazi ababili. Ngemuva kokushada bazonikezwa isitifiketi somshado noma sokuthi bahlalisane bobabili.

Umshadisi ngamunye uphoqelekile ukugcina uhla lwabashadile. Lolu hla luzothunyelwa emahhovisi kahulumeni aqondene nokubhaliswa kwabantu kuleyo ndawo. Ngithanda ukusho ukuthi uma kunabashadisi mbumbulu abangabhaliswe noma abangagunyaziwe ngaphansi kwalo mthetho, bayojeziswa yinkantolo yamacala. Ngokunjalo umshadisi owemukela imali ngokungemthetho, uyojeziswa futhi inkantolo yamacala.

Ikomidi Lezasekhaya liwucubungule kabanzi lo mthethosivivinywa. Ngesonto elidlule silalele uMnyango Wezasekhaya ubeka ngabanzi ngalo mthetho, sabuye salalela izinhlangano ezihlukahlukene. Mangisho ukuthi izinhlangano, ikakhulukazi ezamakholwa, ziyaphikisana nalo mthetho. Zitomula izahluko ezithile eBhayibhelini, njengoMnu Hendrickse nelungu uQikani. Zibuye futhi zikhulume ngamalungelo abantwana. Konke lokhu sibone kungahlangani nhlobo nalo mthetho, kungamanzi no-oyela.

Okumangazayo ukuthi lezi zinhlangano zihlulela abantu abadalwe uMvelinqangi, okunguyena ozobehlulela ngomhla wokuphela. Ngakho-ke mabangabahluleli abanye abantu.

Kunezinhlangano eziseka lo mthetho. Enye yezinhlangano eziseka lo mthetho iphawule kanje, “I am in love with the soul, not the gender.” Ngamanye amazwi ngithandana nomphefumulo qobo lwawo, angithandani nobulili.

Okumangazayo ukuthi ongqingili babekhona mandulo, into nje kwakuyinto eyimfihlo. Bebengaphumeli obala. Okuhle-ke kulesi sikhathi samanje ukuthi ongqingili baphumela obala, bafuna amalungelo abo njengawo wonke umuntu kuleli. Masingabi nobandlululo.

Ngithanda ukusho futhi ukuthi ongqingili bazozikhulumela uma befisa ukushada kumbe bahlalisane. Abaphoqiwe ngaphansi kwalo mthetho, kanti futhi ngokunjalo nabafundisi abaphoqiwe ukushadisa ongqingqili. Masingakhohlwa ukuthi laba bantu badalwe uNkulunkulu njengami nawe. Ngakho-ke masibamukele.

English: [aj33]
If we as lawmakers treat certain people less favourably than others, based on certain characteristics or other considerations, concern will arise that we are directing our policy and legislative decisions on, and acting out of, sheer prejudice and stereotypical assumptions.

In conclusion, I would like to say, indeed, we need to fight and resist all forms of discrimination and prejudice, including homophobia. We should not allow discrimination to marginalise a certain group of our society. As a vanguard of all the people, we, the ANC, cannot allow suppression and discrimination against homosexuals to persist in our society.
When we advance and deepen our vision of a better life for all the people, we must understand that homosexuals are also people, bearing in mind that there are men and women of homosexual and lesbian orientation who joined the ranks of the democratic forces in the struggle for liberation. I thank you, Chairperson. [Applause.]

Dr F J VAN HEERDEN
Ms N M MADLALA_MAGUBANE

Afrikaans: [aj34]
Dr [aj35] F J VAN HEERDEN: Voorsitter, die wetsontwerp se voorsiening om die gemene reg sodanig te wysig dat partye van dieselfde geslag nou ’n wettige huwelik kan sluit, is sekerlik een van die mees omstrede stukke wetgewing wat sedert 1994 deur hierdie Parlement geloods is. Die Minister het tereg gesê, “it was a difficult process.”

Ek kan dit absoluut glo, want die wetsontwerp word deur die meeste kerke en gelowe geopponeer. Die beginsel word deur die meeste lande verwerp. En tog is Suid-Afrika nou maar een van sowat vyf lande – ek meen twee van die ander is Kanada en Nederland – wat sodanige verbintenisse erken. Die VF Plus beskou dit nie as ’n prestasie nie.

Wat betref die vermoënsregtelike voordele van so ’n verbintenis, daarvoor kan voorsiening gemaak word. Vermoënsregtelike voordele ten opsigte van sodanige verbintenisse is ’n totale ander saak, maar ’n wettige huwelik soos dié tussen man en vrou soos ons dit verstaan, is hoegenaamd nie vir die party aanvaarbaar nie, en dus sal die party daarteen stem.

Wat ook vreemd is, is die Robinson-saak, wat in Februarie 2005 gedien het. Hierdie saak het gegaan oor persone wat saam gewoon het en toe is daar uiteindelik ná die oorlye van een persoon ’n eis ingestel vir onderhoud teen die boedel van die ander persoon, die man. Daar is in ’n minderheidsuitspraak die volgende gesê:
Although 2,3 million people have described themselves as living together like married partners although they are not married, there’s no comprehensive legislation to deal with the consequences of such cohabitation.

Die VF Plus is ook teen sodanige saamleefverhoudings gekant, maar wanneer dit gaan oor die vermoënsregtelike voordele is dit ’n totaal ander storie, en dan moet daarna gekyk word. Dié ding is twee jaar gelede gedoen en die Regskommissie het opdrag gekry om te kyk na wat gedoen kan word ten opsigte van wetswysiging om hieraan gestalte te gee by wyse van wetgewing. Twee jaar is verby en niks het nog gebeur nie.

’n Baie meer verdienstelike saak is hierdie een, die Robinson-saak, maar dit word op ys geplaas terwyl hierdie wetsontwerp gestoomroller word. Die VF Plus sal dit nie steun nie en daarteen stem. Dankie, Voorsitter.

Mr J O TLHAGALE

Dr F J VAN HEERDEN

Mr [aj36] J O TLHAGALE: Hon Chair, the hon Minister, and the hon House. The naming of this piece of legislation as the Civil Union Bill is crafted in a manner that makes it less abhorrent than when it is referred to as the same-sex Bill, or a marriage of a female to another female, or a male to another male. [Laughter.] According to black African culture, the marriage of a male to another male, or a female to another to female, is taboo. [Laughter.] [Applause.] It is simply not done least we infuriate the gods.

On a personal note, I don’t normally agree with the politics of President Robert Mugabe, but I like his stance on this foreign practise of same-sex marriages. It boggles one’s mind to think of how exactly they are doing it. [Laughter.] Before my time allocation expires, let me state that my party, the UCDP is opposed to this Bill on religious and cultural reasons.

Can you imagine a situation where your son who works in Gauteng come home during the Christmas recess, accompanied by somebody that you perceive as a male friend, ... [Laughter.] ... but to your surprise and shock, your son introduces this companion as your daughter-in–law, who have been married according to this Bill. [Applause]

*** Language spoken has changed to Setswana [aj37] ***
... makoti wa monna [A male daughter-in-law]. [Interjections.]

*** Language spoken has changed to English [aj38] ***
You have been expecting that one day at an opportune and appropriate time you would get a daughter-in-law and not an indescribable somebody who is going to be a square peg in a round hole when you conduct family rituals and propitiation ceremonies to the gods. I thank you, Chairperson.

The HOUSE CHAIRPERSON OVERSIGHT AND ACCOUNTABILITY

Mr J O THLAGALE

The HOUSE CHAIRPERSON OVERSIGHT AND ACCOUNTABILITY (Mr [aj39] T S SETONA): Chairperson, hon Minister, I am not sure where I am going to start ... [Laughter.] ... because I have my speech here. But before I go into my speech I think I have to make some few observations in terms of the whole process of public engagement, which culminated in the debate in this august House on this important piece of legislation.

My observation is that firstly, as the ANC we cannot be apologetic to answer a question as to why we are the first country in Africa to pass this legislation. We are the first country because we are the first, the premier and the oldest liberation movement in Africa, with supremacy of ideas for a better future for humanity, so that is our historic task. It has been bestowed upon us by history. Nobody, locally, including on the continent of Africa, has contested that particular historical reality. So we are on course.

Secondly, one is a little bit disappointed with the engagement on this particular issue. I am sure that you will all agree with me that the ANC is not an arrogant organisation. We sincerely thought that we would get some little wisdom from the manner in which our opponents from the opposition will engage on us on this debate with all sincerity.

The hon Minister has said that the conclusion of this Bill is not an end on the public engagement between government and civil society broadly. We really thought that some of the views that we will come across here would really put us closer to be thinking in the same wave land as other members of the opposition are thinking.

At worst, what we witness, for instance, the DA that calls itself an indispensable force of the opposition in South African political landscape have taken a cowardly position that no self respecting opposition, in any country, can take. For failing to take a public position on a public policy issue! It has never happened anywhere. [Interjections[aj40] .] I am not sure what message is, in that particular gesture, the DA sending to the aspirant electorates who may likely join the DA. [Interjections.]

One must say that we have heard nothing new in this House, particularly by Mr Thetjeng because he made it clear and he is exposing his views. Mr Thetjeng together with hon Mr Qikani, and Mrs Vilakazi – she is old and I would reserve my words for her. [Laughter.]

I am very honest that some of us wanted to hear something, but they wanted to turn this august House – a self-respecting Parliament – into a kindergarten Biblical lecture.

In doing that, they are projecting themselves as being more of a Christian than the millions and millions of Christians who have voted for the ANC and particularly for Chapter 2 of the Constitution, which entrenches equality within our society. Chapter 2 of the Constitution forms the basis on which today we are discussing this particular Civil Union Bill. I am saying that we have not learnt anything. Of course, one must also admit that – not Mrs Vilakazi – but the IFP have also not been helpful because they are basically living in the past.

I must say something here, I don’t want to be petty and say that Mr Thetjeng was not in the committee ... [Interjections[aj41] .]

The CHAIRPERSON OF THE NCOP[tz42] : Order!

The HOUSE CHAIRPERSON OVERSIGHT AND ACCOUNTABILITY (Mr T S SETONA)[tz43] : He does not want to tell this august House that way in the ANC, as a leader and the agent of change for transformation in this country, we understand public participation not as a something similar to a robot. A robot is something with somebody who programmes it by using buttons, green, red, and yellow.

We see ourselves as leaders. We have listened to the views of our people and we have engaged our people as a leadership. And, I thought that the hon Tlhagale with his sincerity would save this thing. Errol Naidoo, who was representing the Christian community in our public hearings and who was supported – I am saying this thing at a public platform – by all other religious leaders who were seated there, after persuasion by members of the ANC in that committee said, and I quote:
This Bill is a better evil than when the Marriage Act would have been amended to insert those new insertions, husband and a wife.

He further said:
They would appreciate further public consultation as and when government engages in the whole process of overhauling the Marriage Act.

So, that is appreciation. What you read into it and what you want to mislead the House and the public with is what he has read and not by following the public debate to the end. The conclusion of the debate in the public hearing, of which I was a part, is that there was an agreement between ourselves and the religious community that we needed to engage further on this issue - I think I have outlined a process in that regard.

So, no party should be scared in this House, believing that all religious communities are against this Bill. It is not true. It is a very complex emotive Bill that we must engage with the sensitivities that it warrants. I think, in dealing with this challenge the ANC is on course.

Having made those observations, Chairperson, I want to move on by saying that section 9 of the Constitution provides that everyone is equal before the law and has equal protection and benefits of the law. In section 9(3) the Constitution further spells out forms of discriminations and prejudices that may not be allowed, and I quote:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, etc.

One member has just said that these gays and lesbians are with us here, and they are in all the political parties. I can challenge any priest who can claim that there are no gays and lesbians in church. I can challenge any religious leader who says that gays and lesbians are somewhere else in society, somewhere detached. So, I think our task as the ANC is indeed to educate our public and that education must start here and nowhere else.

I am happy, hon Thetjeng, that after we have highlighted the hypocrisy of the DA in the committee it has made a very principled public statement that it does not agree with the referendum, but if we can reveal the records of the committee meeting that he wanted to grand stand there and say the people have spoken lets go for a referendum.

We asked him whether the DA would adopt a vote based on their conscience if we call for a referendum on the property clause? We asked him whether the DA would adopt a conscientious stance if we call for a referendum on the landownership in this country?

Hon members, leadership as far as the ANC is concerned is the appreciation of complexities of our transition, appreciation of difficulties we don’t have to take everything as light and easy.

We need to appreciate those things we also want to learn from the masses of our people whilst we educate them in terms of this Constitution. It is the basis on which we are moving forward. However those members have gone to an extent of misleading our people in a public meeting.

Could members give us an example in the recorded history of this Parliament where the Bill of Rights has ever been amended? But, deliberately and educated as they are, they want to influence the masses for cheap political poaching.

They say: No, but you have amended the Constitution many times, so why don’t you amend the Constitution so that you would not be able to pass this particular legislation? And we are saying that is opportunism and the ANC are not intimidated by those gestures.

I told Mrs Vilakazi that we are going to continue because nobody else but the ANC is going to go right to Ulundi to educate our people about the values of our Constitution. Our people are going to accept and understand that the freedom of the gays and lesbians is not taking away their own freedom and their own privacy and rights.

I must repeat in this august House that we will go everywhere, even to those traditional communities and the former white communities to preach that message as the ANC. So, there is no crisis at all about this piece of legislation.

We are confident that we are on track and there is nobody else in this country that can do that except the ANC. Much as it is under the leadership of the ANC that we have protected the minorities that are represented here, we were never coerced to do that. We did it out of our own goodwill.

In conclusion, let me say that the DA is in a difficult situation because if they can take a public stance on this position, the gay and lesbian communities will expose some of their members who are in this Chamber and elsewhere and who are gays and lesbians. Thank you. [Applause.]

The HOUSE CHAIRPERSON OVERSIGHT AND ACCOUNTABILITY (Mr T S SETONA)

The [aj44] MINISTER OF HOME AFFAIRS: Chairperson, thank you very much. I shouldn’t be responding to the issues that have been raised here, because I think the hon Setona has actually dealt in the main with all the issues that needed to be responded to. Am I in trouble? I don’t think so. [Laughter.]

There are two issues, though, that I really would like to raise. One of the issues that was raised by both the DA – I hope I heard correctly – and the FF was a suggestion that perhaps we needed to do away with minority rights, because if there is any suggestion of that nature, it may actually have very dire consequences. In my view, if people are suggesting that ...

The [aj45] CHAIRPERSON OF THE NCOP: Order, Minister. Hon Thetjeng, I think you were well-protected when you had the floor and debated. Let’s not disturb other people. Let’s listen rather to their response. I’m sure this is the time you have been waiting for.

The [aj46] MINISTER OF HOME AFFAIRS: Thank you, Chair. If there is a view that in determining public policy, only the views of the majority should be listened to, I think it could end, and not listen to the views of the minority. It could actually have very serious consequences for some of the groupings and even political parties. It may actually not be good for our democracy and it may not be healthy for our state.

The other issue is, yes, I think what has come out clearly from the process is that there is a need to deepen the process of public engagement on the matter, and not only on this matter but on a whole range of issues which are quite controversial in our community. Therefore the challenge for those of us who are in leadership - because as public representatives we are leaders in our society - is not to flinch from that responsibility and that challenge of actually providing leadership in the course of this public discourse.

That, for me, is key in that beyond this – it is not about passing this piece of legislation – we need to engage. Right now we have the challenge of coming out with a single piece of marriage legislation, because the current piece of legislation we have discriminates against a whole range of people, including your religious communities.

Therefore, you must have a process of review. We need to complete the one that has started. With that too, you need to engage with our people about what, in fact, this means. Why is it that we preferred the route of coming out with a piece of legislation, rather than having the Constitutional Court determining for us, or coming out for us, or amending for us a piece of legislation? This is the whole issue of separation of powers as well.

You couldn’t have had a Constitutional Court that was going to deliver a piece of legislation to us, because if we had not gone this route, it would have meant that the judges - I am not condemning them - would have determined for us what should happen in terms of our laws in this country.

There is something called religious diversity, never mind that South Africa is a secular state. I do worry. I am also a Christian, a very dedicated Christian for that matter, and deeply religious at that. I worry about people who, when they argue their points, actually make reference to the Bible being the supreme constitution, because there are other documents that we could make reference to as supreme constitutions of other religions. Hence the issue I am raising around the issue of religious diversity in our country, because may actually run the risk of promoting a particular religious grouping above the rest. It doesn’t matter that, in your view, a particular religious grouping is a minority in South Africa. That is your view.

The fact that the Bible is a supreme constitution is your personal view, because you are a Christian. [Interjections.] Yes, it’s your view. You can’t impose your view on the rest of the people. [Applause.] Yes, you’ve got to be tolerant and appreciate the fact that you may believe in the Bible and read the Bible every day, but another person reads the Koran, and that there are also atheists in South Africa. We need to exercise religious tolerance.

I really believe that there are those of us who are intolerant when it comes to religion. We do have that problem. I think it is one of those areas in which we need to deepen our engagement and discussion, because we need to accept that in South Africa not everybody is a Christian nor is everybody a Muslim. We actually have other people who believe in other institutions.

Ntate Hendrickse raised the issue of domestic partnerships. It is good that you raised it. You raised it, I think. Somebody raised the issue of domestic partnerships. You know, the very people – members – were the first to say, “There is no constitutional deadline on the issue of domestic partnerships. Why should it be included in this piece of legislation this time around?”

In fact, across all sections of our society people were saying that this particular area was not a priority, despite the fact that some of felt strongly that the issue of domestic partnerships needed to be entrenched in this piece of legislation, because it is, in fact, about the protection of women in South Africa. This is because most of the people who lose at the end of the day and who are in a disadvantaged position are women, and we needed to protect women.

But people agreed across society that the one section that we didn’t need here was this section; that you could deal with it later because there is no reason to rush it. It should not receive priority, hence the deletion of a chapter that dealt with domestic partnerships.

The last issue I want to raise is ...

The [aj47] CHAIRPERSON OF THE NCOP: I am sorry, Madam Minister, just a moment. I see some people on the gallery using their cellphones to record. In terms of the Rules, you are not allowed to record any speech in this House up in the gallery. Our speeches are recorded and they are for public consumption. You can only get them through
the records of the Council and the records of Parliament. Please stop that.

The [aj48] MINISTER OF HOME AFFAIRS: Thank you, Chair. We are all created in the image of God. Those who believe in Allah believe they are created in that image, and that’s it. This is what we believe, that we are created in some supreme power’s image. This group of people also believe they are created in the image of that power if God has allowed them to choose same-sex people as their partners, if that is their sexual orientation. That is the other debate we need to get involved in at some point: whether this is, in fact, a matter of choice or a scientific issue.

Maybe this country needs to begin to talk about that now that we have reached this point, so that as we judge people as we judge your children, because you don’t know who you are have in your house, you don’t know who you have in your family. As you have taken the decision or made the choice of being heterosexual and marry a woman or a man as a partner, you should appreciate that other people have taken different routes.

This Bill seeks to protect those kinds of people. I am not talking about people who have decided to go underground. This Bill is not about people who are mischievous. We are protecting people here who really believe that they have relationships to solemnise, people who really believe that they are attracted, they are in love with ... I am not talking about people here who decide that when they are sitting here they are something else, but that when they are out there they are a different story. [Laughter.]

In our society we also have that category of people. This Bill allows for people to come out from underground. It empowers people to resurrect. Mabavuke. [Let them wake up.] We are empowering our nation here. If, unfortunately, people are saying that we are teaching our children sodomy, I think that is unfortunate because for us it is not about imagining things that people then do behind doors. It is about the love that develops between two people, and therefore the solemnisation of a relationship.

What happens beyond that and what happens behind their doors and what they do and how they do it really does not have anything to do with us. It is about giving them dignity. It is about providing this equality. It is about granting them the status, the benefits and the responsibilities that have been given to some of us who are heterosexuals and who are sitting here in this Chamber.

How, unfortunately, that impacts, we believe, on society, on our children, on the moral fibre of our society, is another story. But here is a particular grouping of people who have rights the same as we do, who are here in our society. They live; you cannot wish them off the face of the earth. You have nowhere to throw them. If they have sinned ...

IsiXhosa[aj49] :
Lowo ke ongenaso isono, makabe ngowokuqala ukuphakamisa ilitye abaxulube. Ndiyabulela. [Kwaqhwatywa.]

Debate concluded.

The CHAIRPERSON OF THE NCOP: I shall now put the question. Order! Could you please be orderly? I shall now put the question. The question is that the Bill be agreed to. In accordance with Rule 63, I shall first allow political parties an opportunity to make a declaration of vote if they so wish. Is there any political party that wishes to do so?

Declarations of vote:
Mr O J TLHAGALE: Hon Chair, the UCDP is opposing this Bill on cultural as well as religious grounds. Thanks.

Mrs J N VILAKAZI: Thank you, Chairperson. I think I will just repeat what I said there. The IFP is totally against this Bill.

Mr N D HENDRICKSE: Chair, I will also have to repeat that. The UIF is against this Bill totally.

Mrs A N D QIKANI: Thank you, Chairperson. Andivumi, nakancinci. [I am totally against it.]

Dr F J VAN HEERDEN: Chairperson, the FF will also vote against it, as I already indicated in my contribution. Thank you, Chairperson.

The CHIEF WHIP OF THE COUNCIL: Chairperson, the ANC upholds the rule of law. It respects the constitutional ruling, and has no intention of discriminating against anyone. We are in favour of the equality clause. Thank you.

Mr A WATSON: Hon Chair, the DA, as was portrayed by our speaker, recognises the diversity of not only our nation, but also of our members. Therefore it will allow a free vote on this very important matter.

The CHAIRPERSON OF THE NCOP: We shall now proceed to voting on the question. Those in favour say “aye”. Those against say “no”. I think the “ayes” have it. The majority of members have voted in favour. I therefore declare the Bill agreed to in terms of section 75 of the Constitution. [Applause.]

Division demanded.

The Council divided.
[TAKE IN FROM MINUTES.]

Bill accordingly agreed to in accordance with section 75 of the Constitution.

Ms N F MAZIBUKO