COMMISSION ON GENDER EQUALITY

SELECT COMMITTEE ON SOCIAL SERVICES

CIVIL UNION BILL [B268-2006]

23 NOVEMBER 2006

INTRODUCTION

The Commission for Gender Equality (CGE) is an independent statutory body, established in terms of Section 187, Chapter 92 of the Constitution of South Africa, Act 108 of 1996.

Our mandate is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and functions of the CGE are detailed in the Commission on Gender Equality Act 39 of 1996. In terms of Section 11 (1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality or the status of women, and make recommendations to Parliament with regards thereto.

Equality is an important provision of the Constitution, which is essentially aimed at eradicating all forms of unfair discrimination. Sexual orientation is one of the listed grounds in the Constitution, on which one may not unfairly discriminate.

Government has shown commitment to eradicating unfair discrimination based on this ground. This is evident in the case of the National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and others 1999 (1)SA 6 (CC), where the offence of sodomy was decriminalised. This judgement served as a basis for developing jurisprudence around equality in respect of sexual orientation. This in turn created a paradigm shift in perceptions and attitudes towards same sex partnerships, which is evident in the recent judgement relating to pension benefits to be awarded to couples in same sex partnerships.

INTERNATIONAL AND CONSTITUTIONAL PERSPECTIVE

The Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights on 25 June 1993, emphasizes the responsibilities of all States to develop and encourage respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion. It also expressed deep concern by various forms of discrimination and violence, to which women continue to be exposed all over the world. The Vienna Declaration supports a rights-based approach to the protection and promotion of human rights.

The Vienna Declaration emphasizes that "all human rights are universal, indivisible and interdependent and interrelated."

In terms of the African (Banjul) Charter on Human and Peoples' Rights to which SA is also a signatory, the adherence to the principles of human and peoples' rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations is further reaffirmed.

The State is furthermore obliged by various international and regional instruments that it has ratified to take steps toward the promotion and protection of human rights. This places positive as well as negative obligations on state bodies, inter alia to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights.

Government has clearly shown commitment towards the principle of equality, which is evident in the preamble of the Constitution adopt this Constitution as the supreme law ... to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights... and every citizen is equally protected by the law...

Comments are made taking into account the following relevant constitutional provisions and principles:

Section 7 (2) of the Constitution compels the state to fulfil the rights stipulated in the Bill of Rights.

Section 9 of the Constitution compels the State to enact legislation promoting, equality, in South Africa. Sections 10; 11, 12, 14, 15, 16, 18, 27 and 28 of the Constitution permits the State to the enact legislation promoting, human dignity, freedom of religion, belief and opinion, freedom of expression, freedom of association, life, property, freedom and security of the person, and privacy in South Africa. The law of general application limits the right to equality, to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

Taking into account the aforementioned, and having regard to the proposed Civil Union Bill the CGE has highlighted challenges in respect hereof.

The CGE would like to commend the Constitutional Court for their Judgement in the Fourie matter, where the Constitutional Court declared the common law definition of marriage and Section 30(1) of the Marriages Act unconstitutional and invalid. This judgement is clearly aimed at promoting equality, and affirming a society based on tolerance, diversity and mutual respect. The court, in recognising the importance of upholding democracy and promoting respect for the separation of powers, the Constitutional Court did not articulate a particular legislative route Parliament should adopt when correcting the defects in the common and statutory law.

The Constitutional Court did however propose that Parliament consider the following when remedying the defect:

1. To ensure that same sex couples are not subjected to marginalisation or exclusion by the law, either directly, or indirectly.

2. To be sensitive to the need to avoid a remedy that would provide for prima facie equal protection, in a manner that would be calculated to reproduce new forms of marginalisation.

The objective of the Civil Union Bill, is aimed at remedying the defect identified by the Constitutional Court, but fails to take into account the guiding principles as laid out by the Constitutional Court. The objective of the Bill provides for the solemnization of civil unions, and their legal consequences, by way of either a marriage or civil partnership.

Our submission will focus on the following issues, which are of primary concern to the Commission:

1. Introduction

2.International and Constitutional Perspective

3. Concerns

CONCERNS

The Commission on Gender Equality has received various complaints from the public, about unfair discrimination resulting from the omission of legislation giving legal recognition to religious marriages, domestic partnerships, as well as same sex unions. This is the cause of great hardships for women and children in particular. Section 15(3)(a) of the Constitution permits, but does not mandate legislation that recognises marriages concluded under any tradition, or a system of religious, personal or family law. There are also various news reports on the discrimination experienced, as a result of the refusal to amend the Marriages Act, to accommodated same sex, and religious marriages.

The consequence is that people experience discrimination when applying for employment, accessing pension funds, insurance payouts, property, successions, inheritance, as well as the proprietary consequences as a result of the dissolution on these partnerships.

To date, there has been a lengthy process of consultations and investigation into the recognition of Muslim Marriages. The South African Law Reform Commission (SALRC) has released a report, and a draft Bill, as result of their investigations, which was handed to the Minister of Justice and Constitutional Development. There is clearly an urgent need for such legislation, and the courts have been reluctant to afford legal recognition of Muslim marriages.

The primary aim of the Marriages Act should be to give effect to the Constitutional principle of equality, by affording legal recognition and status to all religious marriages, domestic partnerships, and same sex unions. Affording legal recognition to these marginalised categories of marriages, will in turn extend the protection and enjoyment of legislation afforded to spouses in civil marriages.

The Civil Union Bill artificially segregates institutions of marriages and civil unions, which draws parallels to that of unfair discrimination and apartheid. This creates a separate status of legal unions, which is not equivalent to marriage.

CONCLUSION

Separation of Powers is an essential key to ensure and uphold Constitutional democracy in our country. It is therefore essential for Parliament to legislate, rather than leaving it in the domain of the Court. It is quite evident from the Fourie Judgement that the Courts were recommending that the Marriages Act be amended, in the absence of an alternative remedy to amend the defects of the common law definition of Marriage. When providing for the legal recognition of same sex marriages! unions, it should be done in a manner which would promote equality, dignity, and equal protection and enjoyment for all.

The Civil Union Bill in its current form fails to fulfil the Constitutional imperatives as outlined by the Constitutional Court in the Fourie Judgement. The formulation of this Bill is based on the negative stereotyping of same sex relations. Excluding same sex relations from the provisions of the Marriages Act is offensive, as it perpetuates the negative stereotyping of same sex relations. This 'separate but equal' approach, fails to afford protection to individuals and groups, which are directly or indirectly subjected to marginalisation, or exclusion by the law, and therefore fails to guarantee and promote equality, dignity and equal protection and enjoyment for all. When remedying a defect or omission in the law, we must be sensitive, and avoid a remedy that would provide for prima facie equal protection, in a manner that would be calculated to reproduce new forms of marginalisation.

DRAFTED AND PRESENTED BY SURAYA WILLIAMS CGE PARLIAMENTARY OFFICER