Civil Union Bill: Public hearings
SOCIAL
SERVICES SELECT COMMITTEE
23 November 2006
CIVIL UNION BILL: PUBLIC HEARINGS
Chairperson: Ms J Masilo (ANC, North West)
Documents handed out:
Submissions on the Civil Union Bill from:
Commission on Gender
Equality
His People Church
Pastor Errol
Naidoo, His People Church
Christian Brethren
Church
Islamic Unity
Convention
Circle of the African
Moon
Christian Action
Network
Reetsang Pule
Rev Uren-Vener, St
Peter's Church, Sabie
Angelina Morachane
Tryphinia Ntuli
Eric Loynes
M M Malaza
Nontokozo Mangquka
Luyanda Mangquka
Keith Strugnell:
Director of Go-Tell Communications / Bless Africa
Williams Dicks
M Motshumi
T Nongayiyane
M Rutherford
Brett Meyer
James A
Robertson, George Coetzee and Sandra Robertson
Motubatse
Sekhukhune
SUMMARY
The Committee received various submissions on the Civil Union Bill. It was
noted that the National Assembly had passed the Bill but the National Council
of Provinces wished to hear further comments in view of the public interest in
the matter.
The Commission on Gender Equality submitted that the Civil Union Bill did not
address all the concerns of the Constitutional Court as set out in the Fourie
judgment. There was concern that domestic partnerships were no longer mentioned
in the Bill. The Bill did not recognise other forms of marriage. There appeared
to be resistance to developing the definition of marriage and there was segregation of the institutions of marriage
and civil unions. The Commission called for an amendment to the Marriage Act,
alternatively that the default position whereby the Constitutional Court ruling
came into effect be allowed to happen.
His People Church submitted that the Bill would weaken the foundations of
democracy and the rights of citizens to determine the future of society. It
objected to the alteration of the draft Bill one week before its tabling before
the House. Heterosexual marriages were based on the word of God and on nature.
The overwhelming majority of people were opposed to same sex marriages. The
Government had undertaken that it would not tamper with the Marriage Act yet
this Bill was effectively interfering with it. The interests of children were
paramount and the Civil Union Bill ignored their rights to a mother and a
father. The Church called for removal of all references to marriage from the
Bill. The public hearings were disrespectful to the
public if Members had effectively already made up their minds. The voice of the
people was not being heard.
The Christian Brethren believed that same sex relationships were contrary to
the intention of God and nature. The complementarity of the sexes constituted
the basis for marriage and allowed for procreation. Children had a right to a
mother and father. It believed our fragile democracy would be threatened by
this legislation and the Constitution must be tested. It recommended that the
Constitution must be changed.
The Islamic Unity Convention submitted that God's universal principles must
govern the voluntary actions of all mankind. South Africa should rather
concentrate on saving a society that had been damaged by negative foreign
influences over a long time. Furthermore the rights of children must be taken
into account. The Bill would deny children the right to a mother and a father.
The Convention therefore called for protection of marriage to a man and a
woman. It asked for expediting of legislation to give legal recognition to
Muslim marriages. It called upon Parliament to hold a referendum to determine
the issue and to give enough time for a full and proper response. If the rights
in the Constitution were not of benefit to all people, then the Constitution
must change.
The Circle of the African Moon welcomed the principle of equality contained in
the Civil Union Bill but noted that it did not define marriage. Furthermore
there was still no provision made for marriage in other religions. The pagan
religions called for an amended Marriage Act that was completely comprehensive.
There was little practical effect to the designation of marriage officers when
other religions were not accorded
recognition of their marriage rites within their own religions. African
traditional religions had been ignored.
The Christian Action Network submitted that the absence of a father or a mother
had a significant effect on degeneration of society. Same sex marriages would
make children confused about their role models.
The future of the family would suffer. If the Bill was passed, people would believe that it was acceptable
to indulge in behaviour that was contrary to the moral fibre of society, and
more would experiment with homosexuality. The Bill would give a special status
to families that denied children the right to a mother and a father. If the
matter were referred to a referendum the overwhelming majority would vote
against same sex marriages.
Members sought clarity why the submissions
focused on children's rights, commenting that there was already a comprehensive
framework dealing with children and adoption. The presenters were asked what
they would suggest as an alternative if the Bill was not to be adopted. Members
asked for evidence of harm suffered by countries that had passed the
legislation. They questioned whether one religion should attempt to impose its
morals on those who may not subscribe to it, pointing out that no one was
forced to recognise same sex unions. The
issue of a possible amendment to the Constitution was debated. They commented
that concepts should be seen in context and not applied selectively. It was
noted that some groups called for amendment to the Marriage Act and the
Committee noted that it was busy with a number of other issues that were not
germane to the passing of this particular Bill.
The call for a referendum was debated extensively. The point was raised
that sometimes Parliament should lead the voters. Inconsistencies in some of the
arguments presented were highlighted. It
was suggested that perhaps the Joint Constitutional Review Committee should be
asked to look at the matter. Further submissions would be heard the following
day.
MINUTES
Mr T Setona (ANC, Free State) briefly summarised the background to the Bill
and reported that it was a Section 75 Bill that had already been passed by the
National Assembly. However the National Council of Provinces (NCOP) had felt
that they wished to engage further on the Bill and had therefore decided to
hold public hearings, in view of the public interest on the matter. He
requested that the public hearings should be seen in that context. He noted
that many of the written submissions had not raised points any different to
those made before the National Assembly. The Constitutional Court required
Parliament to pass legislation by 1 December. Members were satisfied that they
had followed the requirements of parliament and the constitutional imperatives,
but would welcome further advice. Any interested party was also at liberty to
make application to the Constitutional Court. He believed it was the obligation
of Parliament to adhere to the deadline date.
Submission by Commission on Gender Equality (CGE)
Ms Suraya Williams, CGE Parliamentary Officer, stated that the CGE was a
Constitutional Chapter 9 Institution charged with eradicating gender
discrimination and welcomed the recent judgments of the Constitutional Court
that had affirmed the principles of equality and created a paradigm shift
towards recognising the equality of same sex couples before the law. South
Africa was bound to comply with various international conventions and
instruments on human rights, and to look to the promotion and protection of
human rights in general. Sections 7 and 9 of the Constitution compelled the
State to guard those rights set out in the Bill of Rights and ensure that
legislation was passed to protect them. Much as the CGE welcomed the proposals
it saw some difficulties with the Civil Union Bill (the Bill). The Fourie
judgment had no articulated what route Parliament should follow. However it did
say that there were two important principles; firstly that same sex couples
should not be marginalised or excluded by the law, and secondly that Parliament
must avoid a remedy that created an equal but separate status. The public had
lodged some complaints with the Commission.
The references to domestic partnerships had been removed from the Bill which
left a number of vulnerable women and children without remedies. There was no
attempt to give legal recognition to different religious marriages, such as
Muslim marriages. The fact that the
Marriage Act had not been amended indicated that there was still resistance to
developing the definition of marriage. There was still discrimination against
same sex partners attempting to access pensions funds and similar benefits. The
Civil Union Bill segregated the institutions of marriage and civil unions. For
these reasons the Bill failed to fulfil the constitutional imperatives because
it failed to afford equal protection, true equality and dignity.
Submission by His People Christian Church (HPCC)
Mr Errol Naidoo, Pastor of His People Christian Church submitted that the Civil
Union Bill would lead to the weakening of the foundations of democracy because
the rights of citizens to determine the future of the family and society were
being undermined and the wishes of the majority of the community ignored. The
Bill had been altered substantially only one week before it was voted upon by
the National Assembly (NA). Heterosexual marriages were based on human history,
nature and God. There should be no condemnation by the outside world if South
Africans disagreed with the sexual behaviour of some of society. The
overwhelming majority of public opinion was against same-sex marriage. Same sex
marriages did not carry the ability to procreate and therefore would contribute
to the demise of human civilisation. Christians did not discriminate against
same sex couples but biology did. The Fourie judgment had noted that
equal treatment did not necessarily mean identical treatment. HPCC believed
that Parliament should give proper weight to the rights and beliefs of the
heterosexual majority to avoid a grave injustice. There should not be talk of
heterosexual marriage because such a thing was not possible according to the
teachings of the Bible and nature. Furthermore, the Government had undertaken
that it would not tamper with the Marriage Act and the definition of marriage
as applying to heterosexual couples. That was an empty promise since the Bill
was effectively a duplicate Marriage Act. It was unfortunate that the Bill had
been pushed through the National Assembly when other more important legislation
like the Sexual Offences Bill had not been passed. Due weight was not being
given to the rights of children. Social research had proved that the
heterosexual married biological family unit served the children better than any
other arrangement. Traditional family units produced better outcomes. Every
child had a right to have a mother and a father. Adults should not be given the
right to replace the natural parents with legal parents. Government should have
considered the impact on children before redefining marriage. The Bill
undermined marriage and ignored children. It transferred marriage into a
vehicle for validating adult relationships and changing the morality of
society.
Submission by Christian Brethren Church (CBC)
Mr C Isaacs, Pastor: Christian Brethren Church submitted that every kind of
relationship that deviated from the Lord's intent was displeasing to him, and
same sex marriage was one of these relationships. Heterosexual marriages were
older than Christianity or Judaism and were as old as humankind. It was the
complementarity of the sexes that constituted the basis of marriage as it was
through a heterosexual marriage that parties could consummate their love and
procreate. Children had a right to both mother and father and same sex
marriages could not provide for this. Mr Isaacs quoted a passage from James
Dobson, referring to the wrong that could be perpetrated in a family unit and
stated that the churches recognised this, and therefore were putting much
emphasis on strengthening the family values and the family units. The Kinsey
investigation into human sexuality had revealed that sexual orientation could
change. This meant that gay people could change emotionally and spiritually.
The doctrine of proportionality required Parliament to focus on weightier
matters, and they must therefore consider the moral fabric of society. Same sex
marriages could lead to lowering of the age of consent. Dehumanisation would
result from the State imposing such laws against the will of the people. South
Africa already had a fragile democracy, threatened by Aids, crime and fraud, an
ailing educational system, racism and this would be further harmed by some who
had a gender disorder identity. The Constitution must be tested.
Submission by Islamic Unity Convention
Ms Magboeba Davids, Executive PRO, Islamic Unity Convention stated that the
Convention had been formed in 1994 so that Islamic people could speak with one
voice. One set of universal principles must govern the voluntary actions of all
mankind. The public hearings had been a sign of democracy but the NCOP must
heed the voice of the public, and not regard these hearings merely as a
formality. The Constitution was under challenge as people battled with the
concepts of rights. The focus must be on rights of humanity and not the
preferences of a few. South Africa was faced with major social ills that were
tearing up the moral fabric of society. The Civil Union Bill would further
degenerate society. She posed the question why South Africa should feel obliged
to follow the path set elsewhere in Europe and urged that it should rather
concentrate on saving a society that had been damaged by negative foreign
influences over a long time. If this Bill was passed it would be difficult to
resist further pressures on morality. It was notable that key members of the
Congress of Traditional Leaders were absent. It was also significant that 1
December would be the International Day of HIV and Aids, and yet this was set
to be the date on which sodomy would be legalised in South Africa. She urged
that society should on that day reflect, measure the condition of HIV and moral
values in society and look to ways to improve the social condition.
The Convention submitted that to afford same sex unions the same status as
heterosexual marriages would be akin to putting something natural and unnatural
on the same platform. God had created
male and female for a purpose. Furthermore the rights of children must be taken
into account. The Bill would deny children the right to a mother and a father.
The Convention therefore called for protection of marriage to a man and a woman.
It asked for expediting of legislation to give legal recognition to muslim
marriages. It called upon Parliament to hold a referendum to determine the
issue, to look to the rights of humanity and not only the rights of individuals
and to give enough time for a full and proper response.
Submission by Circle of the African Moon (CAM)
Ms Donna Vos, Archpriestess, Circle of the African Moon stated that she
belonged to the pagan religion, one of the oldest religions in the world, which
included the Egyptian, Celtic, Shaman and Greek and Roman beliefs. It was based
on complete equality of gender, and worshipped gods and goddesses. It had
predated religions such as Judaism, Christianity and Islam.
Whilst the principle of equality contained in the Civil Union Bill was welcomed
it was noted that it now covered only civil partnerships and did not in fact
define marriage. Furthermore there was still no provision made for marriage in
other religions. She called for an amended Marriage Act that was completely comprehensive.
It was unthinkable in a democracy and a secular state that the values of the
Christian religion should still be manipulating the legislation. It was noted
that the Bill still did not define marriage between a same sex or heterosexual
couple. An important amendment had been the Minister of Home Affairs now being
able to designate marriage officers. However, this had little practical effect
when other religions were not accorded recognition of their marriage rites
within their own religions. African traditional religions had been ignored. The
concerns of non-Christian religions should have been accommodated. The laws of
nature should be recognised, and all should be allowed to marry within their
own structures.
Submission by Christian Action Network (CAN)
Ms Taryn Hodgson, National Coordinator, Christian Action Network reported
that the Network represented a number of Christian organisations to the media.
It was opposed to the Bill because of the harm that it would cause to
communities in the Western Cape. In particular the CAN believed that children
would suffer. A number of studies had been done that showed that the majority
of children who had committed or attempted suicide, rapists, school dropouts,
drug abusers and convicted criminals came from broken, fatherless homes. The
absence of a mother also had a significant effect. Children tended to become
confused about their role models. The
network was also concerned about the effect that same sex marriage would have
on marriage relationships. Marriage was love expressed through sacrifice, and
marriage would deteriorate to nothing meaningful, would destroy the future of
the family. Same sex marriages were not normal, and society should rather be
trying to protect the family life.
Laws become the moral measurements for society. As certain things became
de-criminalised or regarded as normal, more people would believe that it was
acceptable to indulge in behaviour that was contrary to the moral fibre of
society. More people would experiment with homosexuality if it was legalised.
If the Bill were to be passed it would give a special status to families that
denied children the right to a mother and a father. Even the liberal French
parliament had ruled against same sex marriages, saying that children should
not suffer from conditions imposed by adults, including the lifestyle choices
of the parents. There was no doubt that if the matter were referred to a
referendum the overwhelming majority would vote against same sex marriages. If
the Bill were to be passed it would make South African society the poorer. It
would have dire consequences for the Government that led the onslaught against
God's moral plan.
Discussion
Mr B Tolo (ANC, Mpumalanga) asked why
the groups had focused so much on the rights of children. He understood that
same sex couples could apply to adopt children, but this was not an inevitable
consequence, and even if they did apply for adoption, there was a Court process
to be followed that would give protection to children.
Dr Peter Hammond, Director, Christian Action Network replied that children had
been included in the submission because the CAN believed that children were
central to the issue. Marriage was not a human concept but was ordained by God.
Part of marriage was the procreation of children and if they were to have a
stable environment the ordained marriage was essential. Legalising same sex
marriage would effectively result in the State being permitted to deny the
right to a mother or a father to a child.
Mr Setona commented further that there was already a comprehensive framework
dealing with children and adoption and, as Mr Tolo had pointed out, the
adoption system had plenty of safeguards. He suggested that perhaps Parliament
needed to look again at the Children's Act to check whether it addressed all
the concerns raised in the public hearings.
The Chairperson added that the legislation on children was before this
Committee and civil society would be asked to make submissions on specific
areas in due course.
Pastor Naidoo (HPCC) understood the comments of the Committee but also stressed
that children were central to the issue. Procreation of children was a central
purpose of marriage as it perpetuated civilisation. He cited an instance of a
lesbian couple where one partner had beat the child of the other. This was
clearly contrary to the interests of children and he reiterated that the best
family unit was one in which a mother and father were present.
Mr Tolo commented specifically on this remark, noting that many children died
from abuse in heterosexual families too, where the incidence of abuse was
probably higher. There was no evidence that children would suffer more in same
sex marriages.
Ms Davids (IUC) commented that healthy children would grow from healthy homes.
Nurturing was part of human nature. Although South Africa was a secular state,
the National Anthem called upon God for his blessing and when the State made
laws it should meet with God. Whatever was done in the name of Christianity
when evil was perpetrated was not true Christianity. God's law was never
oppressive.
Mr Tolo asked the groups to comment specifically on what they would suggest as
the alternative if the Bills were not to be adopted. He asked whether they were
suggesting that Parliament should defy the Constitutional Court. The call to
change the Constitution implied that every time the people did not agree with
the judgment of the Constitutional Court – the highest court in the land – they
should apply to change the Constitution. He wondered how this would impact upon
the notion that the Constitution was the supreme law.
Ms Williams (CGE) commented on this point that it was important to remember
that the Constitution was born out of a history of colonialism, apartheid and
discrimination that was institutionalised without reference to the the majority
who were deprived of citizenship. The Constitution therefore gave the same
rights of citizenship to everyone in the country. Those rights were key to the
issue since all citizens were equally entitled to rights and benefits and to
have legislation passed to protect the equal rights. The Fourie judgment
was based on the fact that a large number of citizens were not being treated
equally. CGE therefore proposed two alternatives to avoid perpetuating
discrimination. The first was to amend the Marriage Act, which in any event
required an overhaul, and make it applicable to all. Professor Pierre de Vos, a
constitutional law expert, had recently said that marriage denoted a symbolic
enactment and political power that conferred a special status. Not passing
legislation would continue to deny same sex couples the access to the special
status, and the Civil Union Bill had not succeeded in addressing the cultural
consequences of marriage. The “second prize” would be to simply not pass any
legislation and permit the default reading in to the Marriage Act of the words
“or spouse” to take effect.
Ms Williams added that Government had taken a decision not to amend the
Marriage Act immediately. The State, in opposing the Fourie case, had made four points in its arguments.
It argued that the procreation argument was rational, that it was necessary to
respect the comments of religious groups, that international law had not
supported same sex marriages and that it would be necessary to have recourse to
diverse systems. The Civil Union Bill had been formulated around these four
points, although they had clearly been rejected by the Constitutional Court.
The Constitutional Court had failed to progress the definition of marriage any
further in this and other cases and in the Daniels matter had not
extended the definition to polygamous marriages, which was of concern. Roman
Dutch law, based on the cultural principles of Christianity, was perpetuating
religious chauvinism.
Pastor Naidoo (HPCC) said that the Bill should be passed by 1 December as it
would be disastrous to allow words to be read into the Marriage Act. However,
he urged that all references to “marriage” in the Civil Union Bill should be
removed altogether in order to protect the notion of marriage by God of
heterosexual couples. Although the Church did respect the gay and lesbian
community it did not recognise their unions because God did not do so.
Ms Davids (IUC) said that there must be a clear distinction between right and
wrong to create a proper social order. If the Constitution's rights were not of
benefit to the majority of society, then the Constitution should be amended.
Ms Vos (CAM) felt that many of the submissions were straying from the main
point. All people were entitled to equal rights. To have a Civil Union Bill
that kept the rights separate was blasphemous and allowed some to hide their
religions behind the law. She expressed her broad support of same sex couples
being permitted to marry. However the main point of her submissions was to ask
that minority religions should also have the right to marry, and not be
excluded from the Marriage Act. She called for an amendment to the Marriage
Act, and for acceptance of the Civil Union Bill in the meantime.
Mr Tolo asked for specific evidence that there had been harm done in those
countries who had already passed laws allowing for same sex marriage.
Pastor Naidoo replied that the Nordic countries, which had passed this
legislation, were dying because there was negative population growth. This
arose because of acceptance of same sex marriages, abortion, and the fact that
the adoption of secular humanism had led couples to have smaller families in
the pursuit of a better lifestyle. Those countries were having to import skills
to fill their posts. The majority of children were being born out of wedlock.
When the State started to liberalise its laws the moral constraints were
removed and people no longer felt the need to marry. They regarded it as merely
an arrangement to validate their sexual orientation. Marriage had lost its
meaning.
Mr Tolo disagreed with these points. He stated that marriage was meant for the
perpetuation of the human species and allowing same sex marriages would not
threaten this because the majority of people were heterosexual and the
legalisation of same sex unions would not change their orientation. The
negative population growth was not limited to countries which had legalised
same sex marriage but was a worldwide phenomenon. It was a question of
economics that gave rise to smaller families. None of the highly developed societies
tended to have large families.
Mr Tolo pointed out that many people did not believe in God and he asked
whether it was correct that one religion should seek to impose its morals on
those who may not subscribe to it. He pointed out that many people would not
wish to recognise same sex unions. They were not forced to. They were simply
required not to prevent others from recognising the unions and to give such
unions protection under the law.
Mr T Setona thanked all presenters for acknowledging that the Bill was a very
emotive issue that touched on the diversity of all communities. He noted that
Parliament really did not have a choice but to pass legislation, in view of the
Constitutional Court ruling. The Constitution and the Court would be the final arbiter
on the interpretation of the legislation. He asked the groups making
submissions to comment on what they believed an amendment of the Constitution
would result in. He pointed out that the Constitution was not created in a
vacuum. He wondered if a dangerous precedent would be set for every interest
group to challenge it.
Mr Setona acknowledged that the gay and lesbian couples were in the minority
but noted that the Bill of Rights spoke of all groups in a socio-political
sense. He pointed out that if the Constitution were to be subject to challenge
all the time, South Africa might have difficulty in continuing to define itself
as a constitutional State.
Mr Setona asked the Commission on Gender Equality what proposals they would put
forward to avoid a situation that purported to give equality but was not the
same. He asked what Parliament should do to ensure that there was no
marginalisation.
Mr Setona commented to the Christian Action Network that that the Constitution
in a sense had resulted in some social engineering, in order to redress ills
that were created by the social engineering of the apartheid state. The
Constitution had redressed these by creating equality for all, opening
opportunities to those had been marginalised. The groups should be cautious not
to apply concepts selectively.
Mr M Sulliman (ANC, Northern Cape) said that the purpose of the hearings was to
assist members in coming to a decision. If Parliament rejected the Bill then
the Constitutional Court ruling to add the words “or spouse” to the Marriage
Act would apply, which would effectively change the Marriage Act in order to
legalise same sex marriages. He asked whether the groups were suggesting that
Parliament should undermine the Constitutional Court judgment. He added that the
House of Traditional Leaders had indeed made submissions, contrary to what was
implied, and that they had not been ignored.
Mr N Hendricks (ANC, Western Cape) cautioned that the Committee was today
sitting for the specific purpose of considering the Bill and was not simply
acting as a rubber stamp.
Ms N Madlala Magubane (ANC, Gauteng) commented on the Circle of the African
Moon submission that the legislation appeared to be dominated by the Christian
religion, noting that the Constitution did not give a bias towards any one
religion. She asked for clarity on the proposal that the Marriage Act be
overhauled.
Mr Tolo also commented on this point, stating that South Africa did have a
secular State that did not put one religion above another. He pointed out that
many people throughout the ages had been killed in the name of Christianity and
the Bible was used to justify apartheid. No secular State had the right to
advantage one religion over another, quite irrespective of the number of
followers of any religion.
Mr Tolo noted that the Committee was not today considering any legislation that
would allow for recognition of other marriages or recognition of domestic
partnerships. He assured all those present that the Government was sensitive to
those needs and would certainly be addressing them in due course. However, this
Bill was purely intended to address the issue of same sex unions.
Mr Tolo stated that the assertion by His People Church that Government had
given an undertaking not to amend the Marriage Act was mistaken. The comments
must be put into context.
Mr Tolo commented that it was a fallacy to say that marriage had always
existed. It was not an immutable phenomenon from a scientific point of view.
Dr Peter Hammond (CAN) replied that the passing of legislation to allow same
sex marriage was in defiance to voters in South Africa and in defiance of the
standard set in most of the world. South Africa would be the first and only
country in Africa to allow this system. It was tantamount to imposing the
morals of a small group of secular humanists on the majority of the people.
This was not the only issue. This would also set dangerous precedents whereby
every other interest group could demand to have its rights recognised. Same sex
couples already received recognition in many ways and it was possible that the
concept of marriage was being pushed only to gain financial benefits such as
tax breaks and pension benefits. That should not be the purpose of marriage.
The purpose of the benefits was to recognise the sacrifices made in raising the
next generation of children who would be the next taxpayers and builders of
society. He feared that allowing marriage and forcing marriage benefits would
lead to bankruptcy of some companies or that none would be willing to offer
benefits any more.
Dr Hammond stated that the idea that the Constitution was supreme almost put it
on a par with God's supreme law. He commented that in many ways the
Constitution already discriminated against religions because it was secular in
nature. He commented that many people may have been killed in the name of
Christianity but many too had been killed in the name of atheism and communism
and thousands had been killed by the laws permitting abortion. He thought it
wrong for Parliament to bring up that point when it had permitted the passing
of laws that legalised abortion, and allowed the slackening of mores in
relation to pornography and prostitution, which undermined the essential
morality, leading to crime and lack of respect to women and children. The
Constitution was an imperfect document, being created by imperfect humans, and
therefore could be changed. He did not see the transparency and democracy being
followed if the citizens were ignored. He believed the legislation would make
South Africa into a country of ridicule and was contrary to the feeling of
Africa and the laws of nature and the Bible. Since the majority of people were
opposed to the legislation he suggested that a referendum must be held.
Mr Tolo replied that he had been brought up in a Christian belief but also held
his own views. He commented that marriage was essentially a religious concept
and reiterated that this did not take into account the views of people who did
not subscribe to that religion. He believed that the views of the Church should
not prevail over those of people who did not believe in the Church's teaching.
Mr Tolo raised the point that Parliament did listen to the views of the public
but that in certain instances it should take the lead and lead the voters. In
this instance Parliament was attempting to lead, rather than be slavishly bound
to the views expressed. Parliament would be a trailblazer in Africa and the
fact that no other African countries had passed this legislation did not
necessarily mean that it was wrong.
Mr Setona commented that the redrafted Bill had gone a long way to allaying the
fears of interest groups, while simultaneously protecting minorities. He
pointed out that any official of Government who was designated as a marriage officer
would have the right, on grounds of conscience, to refuse to perform same-sex
marriages. They would not be imposed on religious denominations. Other
Constitutional protections also existed and there was unlikely to be chaos if
the Bill were to be passed.
Mr Setona could not agree with the assertion of Dr Hammond that the
Constitution effectively discriminated against religions. It must be understood
in proper context. The public hearings were the opportunity when people could
air their views. However, Parliament was faced with a Constitutional Court
ruling. He would prefer all groups to cease making generalised statements. The
judgment of the Court related to procedural issues.
Pastor Naidoo (HPCC) commented that because South Africa was a democracy,
Parliament must listen to the people. The ANC, as the ruling party, should not
assume that it could tell people what was right. This would be akin to
apartheid, which had imposed the wishes of the minority on the majority. Same
sex couples were not presently being denied any rights or benefits or freedoms.
They were not entitled, under the Constitution, to be married. There was no
discrimination on the basis of sexuality. It was a quantum leap to claim
absolute equality. Societal acceptance and the legitimisation of lifestyle was
what same sex couples were seeking. Nobody knew what caused homosexuality. The
State was not obliged to protect sexual behaviour, but only gender issues. The
State was forcing its view on the voters and although many people in Africa
might not subscribe directly to the Bible, there was nothing evil in it. It had
certainly been misused by the previous apartheid government. The Bible and
other religious books set out good moral values which were given for good
reason, for the benefit of Society and to honour God. There would be
consequences for deviating from God's laws, on which civilisation was
based Same sex unions would mean the
death of civilisation. He stated that it was acceptable to defy the
Constitution because it was created by imperfect humans. God and his laws were
not fallible. God's word stood for ever and God did not make mistakes.
Pastor Isaacs (CBC) stated that other speakers had covered many of the points
he would have made in reply. He commented that in so far as changing the
Constitution was concerned, the ANC already had the majority to enable it to do
so, and the Constitution had been amended twelve times since 1996, on fairly
trivial issues. He could not understand why Government did not simply change
the Constitution on this issue.
Mr Setona was worried that many issues had been raised that were not germane to
the legislation before the Committee. He was also concerned about the selective
morality being applied. There was no mention made of marriages where, by choice
or for medical reasons, couples did not have children. There was unconscious
slippage into discrimination against children born out of wedlock. It was
misleading to say that the Constitution had been amended twelve times and
therefore should be amended again. None of the previous amendments had affected
the Bill of Rights and it was unlikely that this could be lightly amended.
Mr Setona said that it was clear that the Committee would have to apply its
mind to a number of issues after dealing with this legislation. It would have
to look at the broad context and ask exactly what was being undermined. He
respected the views expressed, but wished to add that they did not necessarily
represent the views of all Christians or Muslims. The legislature must ensure
that any legislation was achieving a balance of interests and groups. The
current Bill had gone far to allay the worries of traditionalists and, in his
view, had done what was most practical.
Mr Tolo added that the issues would include the question of other religions and
co-habitation. The fact that they were not included in this legislation did not
mean that they were not issues on the table.
Mr Hendricks made the point that the religious leaders had led many of the
marches against apartheid, and the religious leaders were truly the conscience
of the people. If God had inspired these leaders to come to Parliament with a
message, then the nation must listen.
Mr Tolo stated that there was indeed respect for the role that the Christian
religion had played in the struggle for liberation. Parliament had listened
carefully to the submissions but was bound to find a way in which diverse
beliefs could co-exist and where one set of beliefs did not dominate another.
Everyone was informed by their background and he felt that at the end of the
day they must agree to differ. In regard to the calls for a referendum, he
commented that once again this argument was being used selectively. Other
important issues included the land claims and rights, where the majority were
clearly still disenfranchised and would support radical land reform, and yet
few people were calling for a referendum on that as it was likely to impinge
upon their own landowning rights.
Mr M Thetjeng (DA, Limpopo) said that although he had not been present for all
submissions, he had read the submissions sent to him personally and those
circulated. The presenters today were from diverse backgrounds. The traditional
leaders had put in submissions. A number of the comments made by Members seemed
to be attacking the churches. The majority of practising religious groups were
opposed to the Bill. He wondered what would allow Parliament to force such
legislation through. He would support a referendum to allow Parliament to focus
on the people, and if there was not sufficient time, then more time should be
requested. There should not be a forcing of legislation in a particular
direction. It was still possible to do some further research. Some
discrimination was allowable if it passed the tests of reasonableness and
balanced rights. The question of couples bearing children was, to his mind,
irrelevant to the main issue. The Bill was clearly about a choice of lifestyle.
The Chairperson asked the presenters to make closing remarks.
Pastor Naidoo indicated that he understood the process of the public hearings
but was concerned that the ANC had clearly stated that they would not hold a
referendum, that they were not prepared to change the Constitution and
furthermore were not permitted by the party to vote on conscience. He believed
that the public hearings were disrespectful to the public if Members had
effectively already made up their minds. The voice of the people was not being
heard.
Mr Setona (acting as Chair in the absence of Ms Masilo) said that the public
hearings had nothing to do with a referendum or an amendment of the
Constitution. The Constitutional Court required a change to the legislation. If
it was necessary to amend the Constitution to remove all forms of
discrimination then this must be done holistically. He felt that he had been
misunderstood when he made his earlier remarks.
Pastor Isaacs quoted that “no man is an island”. Same sex marriages could not
be considered in isolation but must be viewed in all aspects and in respect of
their impact before a decision was taken. Parliament said it was leading the
people, but it was leading them down the wrong path.
Ms Vos believed that Parliament, as the duly elected representatives of the
people, was justified in showing the lead to the voters.
Ms Hodgson submitted that the Constitution was out of line with the wishes of
the people. It was objectionable that the ANC did not allow a person to vote
according to his or her own conscience and that was objectionable. No
referendum had ever been called on the Constitution when it was first passed
and therefore it contained a number of difficult issues.
Ms Davids believed that South Africa must take stock of its moral values. The
manner in which children were raised would affect future humankind.
Mr Setona commented that perhaps not all possible solutions had been fully
explored. He suggested that perhaps the Joint Constitutional Review Committee
should be asked to look at the matter.
The Chairperson announced that further submissions would be heard the following
day.
The meeting was adjourned.
