19 October 2006
Fellow South Africans, as the Minister of Home Affairs, I have received
numerous letters and memoranda on the subject of same-sex partnerships, both
before and after the tabling of the Civil Union Bill in Parliament. I would
like to take the opportunity in this open letter to respond to some of the
issues raised with me.
At the outset, let me quote the very first clause in our Bill of
Rights:
"This Bill of Rights is a cornerstone of democracy in South Africa. It
enshrines the rights of all people in our country and affirms the democratic
values of human dignity, equality and freedom. The state must respect, protect,
promote and fulfil the rights in the Bill of Rights."
Last year the Constitutional Court ruled in two separate cases that South
African law does not adequately address the inequalities that exist for
same-sex and heterosexual couples who are not married. The Civil Union Bill was
therefore drafted to respond to the issues raised in both judgments.
Firstly, in dealing with same-sex relationships, the Constitutional Court
has ruled that common law definition of marriage between a man and a woman was
inconsistent with the Constitution to the extent that it does not allow
same-sex couples to enjoy the status and the benefits, coupled with the
responsibilities it accords to heterosexual couples. Similarly, aspects of the
Marriage Act, 1991 were held to be unconstitutional.
Should Parliament not correct the above defects before 1 December 2006,
Section 30(1) of the Marriage Act 25 of 1961 will forthwith read as including
the words "or spouse" after the words "or husband" as they appear in the
marriage formula. As a matter of good governance, it is always preferable for
Parliament to pass legislation consistent with the Constitution rather than see
legislation change through default.
The Court, while noting that "equal" does not mean "identical", provided
guidelines for Parliament. It said that the objectives of the new measure must
be to promote human dignity, achieve equality, and advance human rights and
freedoms.
The Court also said that whatever legislative remedy is chosen must be as
generous and accepting towards same-sex couples as it is to heterosexual
couples, both in terms of intangibles as well as tangibles involved.
The option chosen by Cabinet is the Civil Union Bill presently before
Parliament. This Bill provides for the legal recognition of civil partnerships
- a union between two adult persons of the same sex, to the exclusion of all
others, with the symbolism associated with a public solemnisation, and which
attracts all the legal consequences of a marriage. The Civil Union Bill was
drafted to ensure that same-sex couples enjoy the same:
* status - that of a marriage or civil partnership solemnised in a public
ceremony by marriage officers
* entitlements and responsibilities - all the legal consequences of a marriage
that heterosexual couples achieve through marriage under the Marriage Act.
The civil partnership formula specifically makes provision for a same-sex
couple to decide whether to refer to their union as a civil partnership or a
marriage. Civil partnerships will be solemnised by a marriage officer
designated by the Minister of Home Affairs in terms of the Marriage Act.
In addition, a minister of religion may request to be authorised by the
Minister to solemnise civil partnerships.
The Civil Union Bill also provides the legal recognition and legal
consequences of domestic partnerships of both same and opposite sex who are not
joined in any marriage or civil partnership.
The Bill of Rights seeks, amongst other objectives, to protect the rights of
vulnerable people, as well as minority groups. By upholding the rights of gay
and lesbian people, as well as those in relationships outside of marriage and
respecting the values in our Constitution, we are not undermining the rights of
others. The right of a minister of religion to refuse to conduct a marriage
contrary to the dogma of his or her religion remains. The Civil Union Bill
further allows a marriage officer to object to solemnising civil unions on
grounds of conscience.
The Bill of Rights is the cornerstone of our new and much-admired democracy.
It requires of us that we extend equality throughout our nation, rather than
continue to withhold it. It is not just same-sex couples who are excluded from
fundamental rights; many under apartheid experienced similar discrimination
because of the state's failure to recognise customary marriages. This meant,
for example, that hundreds of thousands of men and women could not inherit from
their life-partners or even live with them. It is this legacy that the
Constitution instructs us to redress.
Fellow South Africans, our country has come from a painful past of
discrimination under apartheid, where the state sanctioned and promoted
inequality in society. It was for this reason that the battle cry for our
struggle for freedom was for "all people to be equal before the law." Our
Constitution is the result of this struggle, and reflects our vision of society
where we can be different and diverse, yet equal and protected.
The recent public debates on the Civil Union Bill have demonstrated a real
test of our commitment to the Constitution and all that it stands for. Although
freedom of conscience and religion is protected by our Constitution, the
Constitution is not based on a particular religious belief. We cannot give
recognition to one right by taking away another.
The government understands and appreciates that this is an emotive issue for
some within our society; hence the purpose of this letter is to put some of the
issues into perspective when it comes to the need to balance the application of
different rights as provided for in our Constitution.
If we are to all accept the responsibility we have to our democracy, we must
be willing to consider the needs, the rights and dignity of others.
Enquiries:
Cleo Masana
Cell: 082 902 8796
Issued by: Ministry Of Home Affairs
19 October 2006
Source: Department of Home Affairs (http://www.dha.gov.za)
