N Mapisa-Nqakula: Presentation of the Civil Union Bill, Immigration
Amendment Bill and Film and Publication Amendment Bill to Portfolio
Committee

6 September 2006

Chairperson, Hon HP Chauke
Honourable Members
Senior managers of the department
Members of the media present
Stakeholders and Civil society representatives
Friends

We have a rare opportunity today to present three Bills to the Portfolio
Committee as recently passed by the Cabinet.

In presenting these Bills before the committee today, we are allowing a
further process of consultation and scrutiny of these proposed pieces of
legislation, and as can be expected we have high hopes that such consultation
and engagement will serve to enhance the work already done by us in crafting
these Bills.

I am therefore inviting Honourable members and members of the public to use
this opportunity to share with us some of their views and opinions on
fundamental issues that are addressed in the pieces of legislation.

I am quite aware that any kinds of laws that are passed here in Parliament
tend to have an impact on the lives of people, more so if the legislation
impacts on the private and personal aspects of people's lives such as some of
the Bills we are introducing today.

It is for this reason that we have opted for a situation where adequate
consultation can be allowed and that the final product of the law we shall
pass, addresses the key challenges facing us in respect to the issues raised in
these Bills.

The three proposed pieces of legislation are the Civil Unions Bill of 2006,
the Immigration Amendment Bill of 2006 as well as the Film and Publication
Amendment Bill of 2006. I will go through the key objectives and provisions of
each Bill before my colleagues can make a more detailed presentation.

Civil Union Bill, 2006

The Department of Home Affairs, which registers marriages and appoints
marriage officers, has always understood that the current laws that we have
regulating marriage, will need to be re-looked at if we are to satisfy the
fundamental provisions of our constitution regarding rights of individuals.
These rights would include the need to observe and respect different customary
and religious provisions as well as the right of people to choose and associate
freely.

In this regard it was understood that both the common law and the
legislation that we administer may not stand the test or conform to the norms
of our Constitution. Although with the advent of democracy we have seen some
progress in certain areas, such as in the recognition of customary marriages,
there is more work to be done regarding the recognition and regulation of
marriage-like relationships between both same and opposite sex partners. The
Department of Home Affairs therefore requested that the South African Law
Reform Commission embark on the Domestic Partnership Project in 1996, to
consider the legal implications and parameters for us to give effect to some of
these clear provisions of the constitution regarding marriage. The South
African Law Reform Commission (SALRC) consulted widely and conducted in-depth
research before completing its report.

In the meantime, the common law definition of marriage was challenged in
court, and on 1 December 2005, in the Fourie case, the Constitutional Court
handed down a judgment declaring that the definition of marriage under the
common law and the marriage formula as set out in Section 30(1) of the Marriage
Act of 1961 (Act No 25 of 1961), 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 of 1961, will forthwith be read
as including the words 'or spouse' after the words 'or husband'.

The court held that:

"In this respect it is necessary to bear in mind that there are different
ways in which legislature could legitimately deal with the gap that exists in
the law and stated as well that given the great public significance of the
matter, the deep sensitivities involved and the importance of establishing a
firmly-anchored foundation for the achievement of equality in this area, it is
appropriate that the legislature be given an opportunity to map out what it
considers to be the best way forward. It would not be appropriate for this
Court to attempt at this stage to pronounce on the constitutionality of any
particular legislative route that Parliament might choose to follow."

Therefore after careful consideration of the various possible legislative
options, Cabinet has agreed that the Civil Union Bill, 2006, be presented to
Parliament. As Honourable Members are aware, the issue of same-sex partnerships
is one of the issues on which many South Africans have very strong feelings.
Parliament now has the responsibility to debate this Bill after having
seriously engaged with the public whom you represent. No doubt you will have to
consider many representations regarding this Bill, bearing in mind too that we
have until 1 December 2006 to pass the legislation.

Without going into the details, the Bill will give rise to the recognition
of unions by same sex partners if they wish to enter into such a union and that
should they make such a request to the state, then the state will obliged to
appoint an officer to solemnise and duly register the union or partnership.

Immigration Amendment Bill, 2006

The second piece of proposed legislation is the Immigration Amendment Bill
of 2006.

The Immigration Act, 2002 was amended in 2004, and the amendments, together
with new Regulations, came into effect on 1 July 2005. Although there have been
a few implementation problems, my Cabinet colleagues and I agree that the
overall policy framework for immigration management is sound. However, after
having consulted with business and industry I have come to the conclusion that
the period of time for which intra-company transfer work permits may be issued
in terms of the Immigration Act, currently two years is too short for the needs
of multinational companies.

I am proposing that this period should be increased to four years.
Unfortunately this change could only be effected through amendment to the
legislation.

The Department's line function, the National Immigration Branch and Legal
Services, have also identified the need for a few technical amendments to
clarify certain procedures and permits, and to deal with the realignment of
certain provisions of the Immigration Act.

For instance, the Bill introduces certain definitions such as the
definitions of 'affiliate', 'branch', and 'subsidiary' and furthermore amends
the definition of 'depart or departure' to make it clear that departure means
exiting the Republic to another country. The issue of authorisation of holders
of visitor's permits to work is clarified by an amendment to Section 11 of the
Act. We are also proposing an amendment to allow us to issue appropriate
permits to the spouse and dependent children who accompany the holder of a
retired person - this is a gap that was identified.

The Film and Publication Amendment Bill

The main objective of the Bill is to amend the Films and Publications Act,
1996 (Act No 65 of 1996), so as to insert certain definitions, amend the
composition and provide for the functions and powers of the Board, provide for
the appointment and powers of compliance officers, provide for the composition,
functions, powers and management of the classification office and repeal
certain Schedules of the Act.

The proposed amendments to Section 2 of the Act would ensure that all
publications, films and interactive computer games distributed in the Republic,
regardless of the medium or format of such distribution, would be subject to
the same principles and guidelines to serve the core objective of protecting
children from potentially disturbing harmful and age-inappropriate materials.
The amendment will further bring broadcasters of films within the scope of the
Act.

I am sure that the new amendments to the Film and Publication Act will also
generate a lot of public interest as witnessed since we published the Bill, and
once more I must appreciate this level of engagement so that we can all find
the best solutions to one of the biggest issues affecting our society today -
the issue of the protection of children from exposure to violent and sexual
abuse.

One of the issues that have raised serious debate is the intended removal of
blanket exemption for newspapers on classification of material published. A
newspaper will be required to apply for an exemption if it wishes to publish
Section 16(2) materials or materials coming within the definition of child
pornography.

I would like to re-emphasise the following: that it is not the intention of
this government to reintroduce censorship and I know that all South Africans
are aware of our government's stance on this issue. As already discussed, we
all need to find a way in which publications are held responsible for the
possible exposure of children to harmful material or material that encourages
the abuse of children through child pornography.

This is a matter that I need us to continue engaging with during the public
hearings of the portfolio committee, and I am still inviting all affected
stakeholders to engage us on this matter, with a view to finding a practical
solution.

Having said that let me restate the rationale for the provision of Section
16 in the new Bill:

The reason for imposing restrictions on what materials may be freely
published and distributed is the risk of harm that certain kinds of materials
pose to children in the relevant age groups. Government has a constitutional
duty to protect children from exposure to materials that pose a reasonable risk
of harm.

The blanket exclusion of newspapers allows for a situation where newspapers
may publish materials that pose a reasonable risk of harm to children, while
other publications may not be able to because they are subjected to
classification by the board.

I am asking that both the portfolio committee and the affected stakeholders
should look into this matter in so far as our shared responsibility to protect
children goes. This responsibility is not just government's responsibility but
for all of us. I must also reemphasis our commitment to continue engaging
stakeholders in finding a common approach to this issue and to make sure that
as far as possible we do not appear to be solving one problem by creating a new
one. This commitment on our part is very real.

I will now hand over to the Chief Director: Legal Services in the Department
of Home Affairs to take you through the various Bills in more detail.

I thank you

Enquiries:
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Tell: (012) 810 8613

Issued by: Ministry of Home Affairs
6 September 2006
Source: Department of Home Affairs (http://www.home-affairs.gov.za)