Minister of Home Affairs, on the occasion of the second reading debate on the
Civil Union Bill 2006, National Assembly, Cape Town
14 November 2006
Madam Speaker,
Honourable members,
Colleagues and friends,
Today we present for the consideration of this House, the Civil Union Bill
of 2006 after a long and thorough process of public consultation and debate in
our country.
The process of debate on this Bill has been rigorous. The extensive media
coverage on the debate on the Bill has resulted in the debate continuing in our
homes, workplaces and in communities throughout our country.
One thing that came out of this debate has been an indication that people in
all sections of our society feel very strongly about the issues being dealt
with in this Bill.
Madam Speaker,
The debate itself is by no way over and we should continue to engage each
other on these matters in a constructive way in order to lead South Africans
towards the kind of society that we all fought for, as embodied within our
Constitution. For this reason we are expecting robust debate even during this
second reading here in the House. I must also indicate that we have noted the
changes made by the Portfolio Committee on Home Affairs to the Bill as
presented. These changes have strengthened the Bill and have my full
support.
The challenge that we shall continue to face has to do with the fact that
when we attained our democracy, we sought to distinguish ourselves from an
unjust painful past by declaring that never again shall it be that any South
African will be discriminated against on the basis of colour, creed, culture
and sex.
This House, in passing the Constitution in 1996, recognised the fact that
our nation's commitment to this noble principle of equality should be the
cornerstone of the society we want to build. In breaking with our past,
therefore, we do need to fight and resist all forms of discrimination and
prejudice including homophobia. We should also condemn violence against same
sex couples fuelled by hatred as recently observed here at home and in other
countries.
This commitment to our Constitution and in particular the principles of
human dignity, equality and freedom of religion, informed the drafting and
refinement of the Bill.
The opening clause of the Bill of rights reaffirms this view for us and I
will quote again here:
"This Bill of rights is a cornerstone of democracy in South Africa. It
enshrines the rights of all people in our country and affirms the democratic
values of human dignity, equality and freedom. The State must respect, protect,
promote and fulfil the rights in the Bill of rights."
As far back as 1996, government recognised that the legal regime that
regulates marriage in our country need to be aligned with this constitutional
principle. It is for this reason that the Law Reform Commission (LRC) started
work on the review of the marriage legislation in this country.
However during that process the definition of marriage in our current law
was challenged in our courts.
The Constitutional Court ("the Court"), in the matter of Minister of Home
Affairs v Fourie and Lesbian and Gay Equality Project and others v Minister of
Home Affairs 2006 (1) SA 524 (CC) ("the Fourie case"), declared that the
definition of marriage under the common law and the marriage formula as set out
in section 30(1) of the Marriage Act, 1961 (Act No 25 of 1961) ("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 the benefits coupled with the responsibilities that marriage
accorded to heterosexual couples. The court ordered Parliament to correct these
defects in the law by 1 December 2006 failing which section 30(1) of the
Marriage Act will be read as including the words "or spouse" after the words
"or husband". This current Bill was drafted in response to the court's judgment
in the Fourie case.
The court, while noting that "equal" does not mean "identical" ruled that
while it could not pronounce on the constitutionality of, it 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:
a) to promote human dignity
b) the achievement of equality
c) the advancement of human rights and freedoms.
The second guiding principle states that "Parliament [must] be sensitive to
the need to avoid a remedy that on the face of it would provide equal
protection, but would do so in a manner that is calculated to reproduce new
forms of marginalisation. Whatever legislative remedy is chosen must be as
generous and accepting towards same sex couples as it is to heterosexual
couples both in terms of intangibles as well as tangibles involved."
The Civil Union Bill presently before this House indeed provides such a
remedy. The objects of the Civil Union Bill are to provide for the public
solemnisation and registration of civil unions, by way of either a marriage or
civil partnership and to provide for the legal consequences thereof.
As noted in the memorandum on the objects of the Bill, this Bill makes
provision for opposite and same sex couples of 18 years or older to solemnise
and register a voluntary union by way of either a marriage or a civil
partnership. Care has been taken to ensure that a distinction is drawn between
the responsibilities of State and church as section 15(3) of the Constitution
is indicative of sensitivity in favour of acknowledging diversity in matters of
marriage. The Bill provides for same sex couples to be married by civil
marriage officers and such religious marriage officers who consider such
marriages not to fall outside the tenets of their religion.
In order to give effect to the Constitutional Court ruling, same sex couples
have to be allowed to marry so that they can enjoy the status, obligations and
entitlements enjoyed at the moment by opposite sex couples.
This 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.
Madam Speaker and honourable members,
We have decided to reject calls for the amendment of the Constitution. While
we understand that the Constitution can be amended from time to time to deal
with practical arrangements, we are cautious of an amendment to the Bill of
Rights as it is the bedrock upon which our Constitution and democracy is based.
We also do not share the current view amongst others in our society that in
order to recognise one of the rights in our Constitution, you need to take away
another. Our Constitution clearly makes room for rights of people to be treated
equally without a hierarchy including as it is in this case in situations where
those rights are for a minority in our country.
The consultation process in the public has been extensive, with the
portfolio committee on Home Affairs conducting public hearings in all nine
provinces and in Parliament. The Constitutional Court itself also noted that
the process of the LRC has also ensured extensive consultation.
This process of law reform particularly with regard to the changing concept
of family law in our society remains an issue for further engagement. We will
be considering the recognition of religious marriages, revision of the Marriage
Act, 1961 and of course the regulation of domestic partnerships.
I must thank all members of the portfolio committee, its chairperson comrade
Hlomane Chauke, as well as different study groups of the different parties
represented in the committee for all the hard work they have put in, finalising
this Bill. I am aware that you have spent a lot of time away from your families
as a result of this work. You have engaged extensively with the public, you
have listened carefully to many divergent views and you have presented this
House with a Bill that is consistent with the principles of our Constitution
and the guidelines set out by the Constitutional Court almost a year ago. If
you did not engage as robustly as you did in representing these views, you
would have failed in your duty as public representatives.
Madam Speaker,
It is very important for members to appreciate that within the three spheres
of government, Parliament should continue to be the one bearing the
responsibility to pass legislation and not have the consequences of the
judiciary performing this function on behalf of the legislature. The principle
of separation of powers therefore needs to be protected. It is for this reason
that we have chosen to adhere to the directive of the Constitutional Court to
pass legislation rather than the option of reading words into the Marriage Act.
The dynamic interface and respect for the different roles of the three spheres
of governance is a reflection of a healthy democracy.
I present for your consideration, the Civil Union Bill of 2006. Thank
you.
Issued by: Department of Home Affairs
14 November 2006
