Civil Union Bill: deliberations

HOME AFFAIRS PORTFOLIO COMMITTEE
01 November 2006
CIVIL UNION BILL 2006: DELIBERATIONS

Chairperson: Mr HP Chauke (ANC)

Documents handed out:
Report on the public hearings

SUMMARY
The committee continued its deliberations on the finalisation of the Civil Union Bill. It was assisted by the legal advisers to Parliament and to the Departments of Justice and Home Affairs, as well as a representative from the South African Law Reform Commission. Members considered the issue of whether the introduction of the Bill had been procedurally correct, and concluded that it was. They considered the likelihood of success if they made an application to the Constitutional Court for an extension of time to pass legislation, but the Chairperson stressed that this should be a last resort. They then considered the central issue of whether the Bill could be challenged as unconstitutional. The legal representatives from the Department of Home Affairs believed that the objections could be met by referring to ‘marriage’ instead of to ‘civil union’ throughout the Bill. The legal advisors from the Department of Justice and Constitutional Development were of the opinion that although the Bill had originally made reference to ‘marriage’ only in Clause 11, this defect could be cured by making it clear in clauses 11, 12 and 13 that it was a marriage that was being entered into. The question of whether the Constitutional Court could tell parliament what to do was discussed. Members raised questions on parental consent, of notice of objection, on the notion of “separate but equal” and on the different views now expressed by the legal advisers that the solemnisation ceremony would in fact result in a marriage. Members discussed how the other 44 pieces of legislation would be affected, particularly in regard to children. The practical systems of registration at the Department of Home Affairs were clarified. It was noted that regulations had been drafted. The researchers from the South African Law Reform Commission then explained their report on domestic partnerships to the Committee and gave a summary of the differences between registered and unregistered partnerships. Members discussed the registration procedure, whether this situation would protect the vulnerable partner, usually the woman, and whether foreigners entering into civil unions and domestic partnerships would be able to apply for permanent residence.

MINUTES
The Chairperson stated that the committee could end up extending its engagement on the Bill. The NCOP would not be in Parliament next week, and it was therefore possible to extend the deadline for this Committee’s deliberations until the end of next week. He said that he did not want members to feel under pressure, as there was still enough time to meet the deadlines.

He referred to the possibility of applying to the Constitutional Court for an extension of time to pass legislation. He said that the Committee would first have to exhaust its deliberations before doing so, as that was to be a final resort.

The Chairperson noted that the legal advisers to Parliament, as well as those of the Departments of Justice and Home Affairs, were at the meeting to share with the Committee how they had debated the issues, and especially to comment on the arguments advanced that the Bill may be unconstitutional.

Mr S Swart (ACDP) referred to the comments he had made in the committee meeting of the previous day, regarding a Constitutional Court application, and noted that there was an opinion in the file from the parliamentary legal advisors. He wanted to know from the State Legal Advisors how they would view the prospects of success, because the closer the deadline date approached, the more this was a real consideration.

He then asked if the State Legal Advisors could compile a document summarising simply the legal submissions contained in the report on the public hearings, clause by clause. He said that there were some pertinent legal opinions beside all the passionate outbursts.

Mr K Morwamoche (ANC) was concerned that the Chairperson had officially opened the meeting without a secretary being present. Nobody appeared to have noted Mr Swart’s comments, and he was worried that they may be repeated later.

The Chairperson noted Mr Morwamoche’s concerns.

He then asked the parliamentary legal advisors for comment.

Adv Mukesh Vassen (Parliamentary Legal Advisor) said that he did not have his written opinion with him, but that that he thought that the Bill had been introduced in the correct manner. Although it had not been certified by the State Law Advisors as required by the rules, they had produced a certificate as was required, and all the requirements for the introduction of the Bill had been met. The tagging was procedurally correct, and the Bill was also referred to the House of Traditional Leaders. Therefore the process, including the public hearings, was in accordance with the rules.

The Chair then asked for an opinion on the constitutionality of the Bill.

Adv Vassen said that the various State Legal Advisors were divided in their views. There were some points of commonality on parts of the Bill being unconstitutional, but there was no agreement on how to proceed with it.

The Chairperson asked if they had identified these areas themselves or if these were areas that the Committee had raised. He said that whether they agreed or not, they had a responsibility to help the Committee to understand the issues.

Adv Deon Erasmus (Legal Advisor to the Department of Home Affairs) referred to Clause 11 of the Bill, and the whole issue around the use of the word ‘marriage’. His understanding of the Constitutional Court judgment was that it found that the common law definition of marriage was unconstitutional in its current form. He believed that if the Bill were to contain the word ‘marriage’ instead of ‘civil union’ it would be adhering to the Constitutional Court ruling.

Dr L Louw (Legal Advisor to the Department of Justice and Constitutional Development) said that ‘marriage’ had initially been inserted into clause 11, because in order to comply with the Constitutional Court ruling the common law definition of marriage should be amended. She said that the current wording of Clause 11 permitted couples to choose, during the solemnisation ceremony, if they wanted to enter into a civil partnership or a marriage. She said that if it was necessary to make this clearer, then clause 12 could be amended to read that they get a ‘marriage’ certificate. Clause 13 could also be amended to indicate that all the legal consequences flowing from a marriage would result. If same sex couples were just given civil unions without the option of entering into a ‘marriage’, she was of the opinion that this would not pass constitutional muster.

Mr D De Lange (Legal Advisor to the Department of Justice and Constitutional Development) also referred to the use of word ‘marriage’. The main question was to find a remedy that could be separate but must be equal, which did not marginalize same sex couples again. He referred to paragraph 150 on page 93 of the judgment, which stated that Parliament must not provide a remedy that on the face of it granted equal rights but where in fact its context and application would be calculated to produce new forms of marginalisation. The judgment had referred to the acceptability of a remedy that was ‘separate but equal’ as an apartheid era fallacy. For that reason he said that it should be made clear in clause 11 that it was a marriage that was being referred to in every respect, and that it might also be useful to use the word ‘marriage’ in other contexts in the Bill, to eliminate any confusion.

The Chair asked the Legal Advisors to refer the Committee to the exact part in the judgment that had required that ‘marriage’ be allowed for same sex couples.

Ms Louw said that the Order was on pages 101 to 102. The relevant part of the order was at page 102 C.

Mr M Swart (DA) asked whether the State Legal Advisors had considered whether it was constitutional for the Constitutional Court to tell Parliament what to do.

Mr De Lange answered that the Constitution was the supreme law and that the Constitutional Court was the only institution that could tell Parliament what did or did not conform with the Constitution.

Mr S Swart said that comparable foreign law generally supported civil unions for same sex couples, not marriage. There were five States that catered for same-sex marriage, with all other states opting for civil unions.

Mr De Lange replied that as far as he knew, this was the first occasion where such legislation emanated in response to a Constitutional Court judgment telling the legislature they had to pass legislation. Other legislatures acted pro actively, that is, without judicial intervention. However, the highest court in New Jersey had just given its legislature 180 days to come up with similar legislation.

Mr S Swart said that his point was merely that one had to look at countries with similar constitutions to South Africa’s and at what they had done in this regard.

Mr Morwamoche asked why the Bill contained no provision for notice of intention, so that those who wanted to object to the union could do so. He also asked why the Bill did not provide for parental consent in the case of minors wishing to enter into a civil union.

Dr Louw replied that clause 9(1) contained the provision providing for the possibility of objecting to a proposed civil union.

Mr Morwamoche reiterated his concern that there was no provision for necessity of notice to be given in order for people to object if they so wished.

Dr Louw said that the drafters of the Bill had taken the relevant provision word-for-word out of the Marriage Act, so that the identical provisions with regard to notice of intention applied.

Mr S Swart asked Mr De Lange to help him to understand the wording of paragraph 152 of the judgment, that equal treatment will not always or necessarily require identical treatment. It was only when separation implied repudiation and perpetuated a caste-like status that it became constitutionally invidious. He asked if that suggested that a separate but equal remedy would suffice as long as it did not have this negative implication.

Mr De Lange replied that that the possibility of non-identical treatment that would still pass constitutional muster was probably the justification for drafting the Civil Union Bill rather than simply amending the Marriage Act. It was also a matter of balancing rights and interests, such as equality, with freedom of belief. With regard to the proviso that such measures should not inspire repudiation or distaste, he said that this was a value judgement, but that one could not overlook the substantial sentiment of repudiation and distaste unearthed during the process of public consultation.

Ms S Kalyan (DA) went back to the word ‘marriage’ in clause 11 and the suggestion that it could be used throughout the Bill. Yesterday, when she had asked why the word ‘marriage’ was used in clause 11, she was told that it was a ‘legal nicety’, but today she was hearing something else, that the ceremony was indeed a marriage. If this was the case, why was the title of the Bill not ‘Civil Marriage Bill’? She bluntly asked whether it was in fact a marriage that was being entered into. She said that if it was being suggested that the Committee should substitute ‘marriage’ for ‘civil union’ everywhere in the Bill, then it changed what the Bill had set out to do.

Mr M Swart added that if the Committee was being asked to take ‘civil union’ out of the Bill and replace it with ‘marriage’, then the Committee did not need the Bill at all; it could simply amend the Marriage Act.

Ms Kalyan reverted again to Clause 11 again. The State Legal Advisors had said that if same sex couples opted for marriage in the solemnisation formula, they would receive a marriage certificate. That was not what she had understood them to be saying yesterday when they had said that the couples would get a certificate solemnising the union, but that in the population register this would reflect only as a civil union.

Mr De Lange replied that he had changed his position somewhat from yesterday. He said that Clause 13 already said that the legal consequences of a marriage would apply to a civil partnership. It also went on to say that any reference to a marriage in any other law included a civil partnership. Thus it could be referred to during the ceremony as a marriage under Clause 11, and it would have the same legal consequences as a marriage, so why not go the extra step and call it a marriage.

The Chairperson then said that he thought that the committee had began to identify some of the issues that would give it political direction to make decisions. He said that the committee wanted to know which other laws were going to be affected by this Bill and whether they would also require amendment.

Dr Louw said that there were 44 pieces of legislation that would be affected. She was convinced that the effects of Clause 13 would automatically apply to them. She also said that legal databases such as Jutastat would update those pieces of legislation automatically.

Mr S Swart asked what the material impact of clause 13 would be on those 44 pieces of legislation. The committee needed to know what the implications were of amendments to those 44 pieces of legislation. Of particular concern was how children would be affected.

Ms Louw said that such legislation included the Children’s Act, the Child Care Act and the Divorce Act. She said that the new Children’s Act made provision for parties in a life partnership relationship, and therefore covered the type of relationships that were being created in the Bill. She was satisfied that the introduction of the Bill would have no unintended consequences, especially as far as children were concerned. At this stage same sex couples could already adopt children and the law had also already considered in-vitro fertilisation and the legal status of children born by this method.

The Chairperson then asked that the Committee should receive a full list of those 44 pieces of legislation.

Adv Erasmus said that the legal advisors had done a search on how many references to ‘spouse’, ‘husband’ and ‘wife’ there were in South African legislation. ‘Spouse’ appeared 1149 times, ‘husband’ 310 times and ‘wife’ 292 times. If certain pieces of legislation were to be repealed by the Civil Union Bill, there would be a schedule listing those changes. He said that it only repeals would be listed in a schedule and that consequential amendments as a result of the introduction of the legislation would be very difficult to reflect in a schedule.

Mr W Skhosana (ANC) asked the legal advisors if they could give the committee an idea of the impact that the Bill was going to have on the population register, and how it would be determined, for the population register, which person in a same-sex union was reflected as the wife and which as the husband.

One of the legal advisors from the Department of Home Affairs said that Mr Skhosana was referring to a systems issue. Every South African bar-coded ID had a digit reflecting the sex of its holder. If two male or two female ID’s were scanned to register a marriage, the system would not accept it, regarding it as an error. She said that the system was being amended to cater for the new provisions and she expected it to be up and running before the deadline given by the Constitutional Court.

Ms Kalyan asked if the system would be able to print out the certificate showing the same-sex union.

The same legal advisor said that it could, and that the terms of the certificate would be changed from ‘husband’ and ‘wife’ to ‘spouse’.

Ms Kalyan went back to an earlier question that Mr S Swart had raised. She said that the Committee had still not heard categorically what the impact would be of amending the old legislation. She asked whether it would be necessary to insert new wording into the old legislation that was not language sensitive.

Ms C Pienaar (Researcher, South African Law Reform Commission) said that the main point was that if people in civil unions were to be given the legal consequences of marriage, these consequences must apply automatically, except where this was for practical purposes impossible. She gave the example of the presumption of the biological father in a relationship. That was why Clause 13 had referred to ‘with such changes as may be required by the context’. She did not think that the Committee would be in a position to go through the list of the legislation affected by the Bill and decide to which pieces the Bill should apply, as this sort of discrimination would again be subjected to constitutional scrutiny as being discriminatory.

Mr M Sibande (ANC) asked why the legal advisors were still busy preparing what they had to say as they sat before the Committee.

Mr Morwamoche asked why the Bill did not contain a prohibition on the entering into of a civil union before a certain age.

Dr Louw replied that the Bill said that only adults could enter into a civil union, which in terms of the law now meant 18 years and above, since the Children’s Act had changed the age of majority.

Adv Erasmus expressed his concern to the Committee that Clause 47 of the Bill required regulations to be in place. If they were not, then the default position referred to in the Constitutional Court judgment would in any case apply, because it would not be possible to implement the proposed piece of legislation without those regulations. He said that the Department of Home Affairs Legal Advisors had drafted a separate set of regulations, which would assist in implementing the proposed Act. If the Bill were to be passed, there would be some regulations to assist the department.

The Chairperson said that the Committee had been dealing with the civil unions but had not heard anything said thus far on domestic partnerships. He then asked someone to explain the provision in Clause 29 to him.

Ms Pienaar replied that there was a common law rebuttable presumption that the father of a child born in wedlock was the biological father. To protect children in domestic partnerships, the Law Commission had brought in the same presumption, because a registered partnership was a formal commitment.

Mr Swart said that a policy decision had to be taken on whether the whole issue of domestic partnerships needed to be separated from the rest of the Bill. The Committee needed to have a detailed appreciation of all the issues involved there, and could possibly not do justice to this question in the limited time that was at its disposal to address the issue of same-sex unions. He presumed that the whole issue of domestic partnerships had no implication on the first part of the Bill.

Mr M Phala (ANC) said that he was confused by the references to ‘registered’ domestic partnerships. He regarded a registered domestic partnership as akin to a marriage. If that was so, why was it not called a marriage.

Ms Pienaar said that there might be some confusion about the term ‘registration’, which was also used in the Recognition of Customary Marriages Act. Parties could register a customary marriage as well. This was not the meaning of the term here. She said that she would like to read the part from the Law Commission’s (SALRC’s) report on domestic partnerships to give the committee members the context. She confirmed Mr S Swart had been correct when he said that there was no requirement that the issue of domestic partnerships should be addressed before 1 December. She proceeded to read from the commission’s summary, which she had handed out the previous day. She noted that the issue had arisen from the Constitutional Court case of Volks v Robinson, when the court expressed concern for the plight of vulnerable parties, mostly women and children in cohabitation relationships where the structural dependence of women in marriage results in real suffering and misery. The Court stated that the answer would lie in the legal regulation of partnerships and recommended the enactment of a Domestic Partnerships Act to provide for the legal recognition and regulation of registered and unregistered partnerships.

Ms Pienaar read the Commission’s report (page 5) in relation to the difference between registered and unregistered partnerships. In essence, registered partnerships could be effected by complying with a simple prescribed registration procedure before a registration officer, who will be a public servant appointed by the Minister of Home Affairs for that purpose. The registered partnership would be ended when one or both partners died or could be terminated by a simple procedure before a registration officer. However, if there were children from the partnership, the partners would have to apply to the court for a termination order. The court would then insure that the best interests of the child were attended to. The commission had further recommended that there be no automatic community of property between registered partners, but that written agreements could be made, including provisions on the division of property when the relationship ended. In the event of a dispute the court should have the final say about a fair and equitable division. Support was an essential element of the partnership. This formed the legal basis for claims by registered partners that were usually only open to married partners, such as pension and medical aid fund benefits. Ad hoc legislative provision was currently already made for some of these benefits. The question of the rebuttable presumption of biological fatherhood was also raised. The commission recommended therefore that the Domestic Partnerships legislation also provide for regulation of the consequences of terminated unregistered partnerships. Even if the partners had not registered the relationship, one or both partners should be able to approach a court for assistance after the relationship had been terminated by separation or death, where there was a dispute regarding the financial consequences of the former relationship. The court should have discretion to make a maintenance order in favour of a former partner and an intestate succession order where there was no valid will, as well as an order for the division of property to which both partners had contributed. The court deciding such an application must have regard to all the circumstances of the relationship with a view to reaching an equitable outcome. Contributions by women to a joint household through labour and emotional support had to be acknowledged.

The commission had further recommended that legal consequences of the termination of multiple, or polygamous unregistered partnerships also be regulated. These were maintenance after separation, maintenance of a surviving partner, intestate succession and property division. For these purposes the court has a discretion to consider the circumstances of both relationships to ensure an equitable outcome when making an order.’

Mr Phala asked what type of documentation would be issued to those who had registered a domestic partnership.

Ms Pienaar said that the registration certificate would state that there was a registered partnership and not a marriage. It was not intended to be a marriage, but an alternative to marriage.

Mr Morwamoche said that the Committee Members were not given copies of the judgment dealing with domestic partnerships. He said that it would aid them in grappling with this issue.

Mr S Swart thanked Ms Pienaar for the summary. He said that the protection of vulnerable women was the important consideration. The assumption was that the man would not want to marry the woman. He wondered what would persuade a man to enter into a domestic partnership rather than a marriage. He asked whether the third option, an unregistered domestic partnership, would not be the most fair because there was no issue of vulnerability, as the court would decide on the existence and consequences of a partnership at a later stage. He said that it seemed a very fair option, but wondered whether it would satisfy the requirements of the Volks v Robinson decision.

Ms Pienaar replied that it was supposed to be an alternative to marriage for people who did not want to get married. It was simple to register and to terminate. It was only when there were children involved that the parties would have to go to court. She did not foresee that those vulnerable people who could not convince their partners to get married would be able to convince them to register, but there was certainly a category of people who would make use of this procedure. The case where one partner was not willing to formalise the relationship was the reason why the SALRC had gone further and recommended unregistered partnerships for people who could not convince their partners to register.

Mr F Beukman (ANC) said that he wanted to focus on the practical problem of the population register. Earlier in the year the committee had had a briefing on its security features. He wanted to know if, in the drafting of the new regulations, DHA had looked at this issue, because one of the problems indicated earlier was the issue of fraudulent marriages. He wondered whether DHA was also looking at closing the net in regard to domestic partnerships.

Mr Erasmus said that it was a very difficult question for a legal advisor to answer, because how the department managed its systems was outside his area of expertise and control. There were security features involved but he was not au fait with them.

Ms Kalyan asked if a foreigner in a civil union could apply for permanent residence, as was the case with marriage.

A legal advisor from the Department of Home Affairs replied that as civil unions would receive all the consequences of marriage, this would be the case. But she said that the same could not be said for domestic partnerships, which were not given the same legal consequences as a marriage.

The meeting was adjourned.