Department Legislative Programme; Alteration of Sex Description and Sex Status Bill: briefing; ID campaign

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
5 August 2003
DEPARTMENT LEGISLATION PROGRAMME; ALTERATION OF SEX DESCRIPTION AND SEX STATUS BILL: BRIEFING; ID CAMPAIGN

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Report on study tour to Limpopo
Alteration of Sex Description and Sex Status Bill - offsite link
Legislation to be submitted by the Department during the current session (Appendix 1)

SUMMARY
The Chair stressed the urgency of the Electoral Amendment Bill. The Department informed the Committee that the Bill should be before Cabinet by next week.

Mr Mogotsi briefed the Committee on the Alteration of Sex Description and Sex Status Bill. The Bill is intended to allow the Director General to alter the sex description of applicants that have gone through sexual reassignment. The Committee expressed concern about the privacy of applicants and the possibility that a Director General would refuse an application to have one's sex description altered.

The Committee Report on the study tour to Limpopo was tabled for consideration and adoption at the following meeting.

The Chair proposed inviting ID campaign stakeholders so that efforts to assist the Department could be properly coordinated.

MINUTES
Legislation to be submitted by Department

The Committee went through the list of upcoming legislation (see appendix).

Electoral Amendment Bill
The Chair stated that the Electoral Amendment Bill is crucial. The Committee had to know its current status.

Mr K Mogotsi, Director: Legal Services in the Department, replied that the Electoral Amendment Bill was with Legal Services to incorporate a Cabinet resolution. He had issued an instruction that the Bill be finalised on 5 August 2003. Once finalised the Bill will be referred to the Minister and then to Cabinet at the meeting the following week.

Mr I Pretorius (DA) asked if the Committee would have the Bill in time to finalise it for the September session.

Mr Mogotsi replied that it would.

Ms G Borman (DA) asked if the Cabinet resolutions on the Bill were major or minor.

Mr Mogotsi replied that he did not have the resolution with him since he may not remove it from the office. Cabinet resolutions are only available to persons cleared by the NIA.

The Chair stated that he was concerned by the delay - the Bill should have been dealt with much earlier. If it did not arrive shortly, the Committee would call Mr Mogotsi and the Minister to account.

Mr S Swart (ACDP) stated that he had just heard at a Justice and Constitutional Development Portfolio Committee meeting that the delay had been caused because of the minority report of the Van Zyl Commission. This required a constitutional amendment. The consensus was that the Bill was not a constitutional bill.

Prince N Zulu (IFP) asked what role the Director General had played in the formulation of the Bill.

Mr Mogotsi replied that he had received comments on the Bill from the Director General the previous day.

Alteration of Sex Description and Sex Status Bill
Briefing by Department
Mr Mogotsi briefed the Committee on this recently tabled Bill. The Bill had been tabled in Parliament. It makes provision for any person that has undergone a sex change to apply for his/her sex description to be altered in the population register and for an amended birth certificate to be issued.

Applications had to be accompanied by the applicant's birth certificate, reports from the medical practitioner involved in the sexual reassignment and a report from a medical practitioner not involved in the reassignment. If the Director General refused the application, s/he had to supply written reasons. The applicant could appeal the Director General's decision before the magistrate in his/her district. The applicant had to supply to the magistrate the same documentation sent to the Director General and the written reasons given by the Director General. The appeal would be held in camera. On a successful appeal, the magistrate would order the Director General to alter the applicant's sex description. Once the applicant's sex description had been altered, s/he could apply for an amended birth certificate reflecting the corrected sex description.

Clause 1 sets out the requirements for an application for the alteration of sex description and an appeal of the Director General's decision. Clause 2 states that a person whose sex description is altered is deemed for all purposes to be a person of the sex description as altered from the date the alteration is recorded and that the person's rights and obligations are not affected by this. Clause 3 amends Act 51 of 1992, Births and Deaths Registration Act, to enable the Director General to alter the sex description of the person in the Register and to issue an amended birth certificate. Clause 4 is the short title of the Bill.

Discussion
Mr Swart stated that the difficulty in dealing with the Bill was that the members are not medical practitioners. He wondered what was meant by the phrase 'by evolvement through natural development' in Clause 1(1).

Mr Mogotsi replied that the phrase had been included on Cabinet instruction. He could not say what it meant.

Mr W Skhosana (ANC) suggested that the Cabinet might have had in mind persons whose experience of being of the other sex grows over time.

Mr Mogotsi responded that he agreed that Mr Skhosana's view was the probable interpretation of the phrase.

Mr Pretorius asked if Cabinet had intervened on the Clause on medical advice.

The Chair responded that the Committee would have to call the Minister to get the answer to this question.

Ms Borman expressed concern at the phrase 'unless such reasons have been made public' in Clause 1(3). Such a sensitive matter as sexual reassignment should be kept private.

The Chair added his concern that such a private matter could be made public.

Mr Mogotsi noted that the Bill recognised the sensitivity of the matter by requiring that the appeal hearings be held in camera. He did not know why the phrase had been included and could not say if it appeared in the original Bill. The Bill before the Committee was the Bill as certified by the State Law Advisor. The phrase would have to be looked at.

Mr Skhosana asked if there was a minimum age for applications to have one's sex description altered.

The Chair expressed the concern that if there were no minimum age the provision could be abused by young citizens as part of a youth culture trend.

Mr Mogotsi replied that by implication, a person could only undertake to have his/her sex description altered as a major or with the assistance of parents if a minor.

Mr Swart added that in the case of surgical reassignment, parental consent was required as with all surgery if the person was a minor. The difficulty arose with the inclusion of evolvement into the other sex since this did not require surgery and so did not require parental consent.

Mr Mogotsi noted that the Bill made provision for litigation when appealing the Director General's decision. Since only majors could litigate without assistance, the implication was that minors could not use the provisions of the Bill without parental consent.

Prince Zulu asked if churches and traditional institutions would be involved in the public hearings. Churches would require biblical support for sex changes. Traditional institutions would be affected. It would not be ethical for a traditional leader to have to reassign someone to a different regiment according to a change in sex description.

The Chair replied that freedom of choice and religion are important in a democratic society. The Committee would have to arrange hearings and would be able to draw in medical and other expertise then.

Mr R Pillay (NNP) wondered how the Director General could refuse an application if the requirements in Clause 1(2) were fulfilled.

Mr Mogotsi responded that he would not like to speculate on why a Director General might refuse an application - he wanted to believe that the decision would always be taken based on the facts. The provision to appeal was included for redress.

Mr Pillay raised the cost implications of a refusal. Should an applicant need to engage legal counsel, a refusal could prove expensive. Why should they be subjected to this additional burden?

Mr Mogotsi replied that if the magistrate found against the Director General then the magistrate will likely make a costs judgement against the Director General.

The Chair responded that the core question is why the Director General should refuse if the person has gone through the exercise.

Mr Mogotsi replied that the legislation was intended as enabling legislation. Currently the Director General could not alter sex descriptions; the legislation would allow him/her to do so.

Mr Skhosana wondered if persons that were neither citizens nor permanent residents and had gone through the sexual reassignment procedures would be able to change their legal sex in South Africa using this legislation.

Mr Mogotsi replied that the legislation was intended for citizens - foreigners' details were not contained on the population register.

The Chair stated that the legislation was not urgent, but would be included in the Committee's programme immediately. He asked the Clerk what the time period for hearings is.

The Clerk replied that a month is usually enough to receive submissions and prepare for hearings. The Committee should take into account the need to get funding for the hearings, which would take ten to fourteen days. After this the hearings could be advertised for a month from that time.

The Chair asked if Mr Mogotsi would be briefing the Committee on the other Bills to be presented by the Department.

Mr Mogotsi replied that he did not think that this would be prudent. He drew the Committee's attention to South African Citizenship Second Amendment Bill, which would allow for dual-citizenship and might prove controversial.

Ms Borman asked that Mr Mogotsi give some indication of when the Electoral Amendment Bill would be before the Committee.

Mr Mogotsi replied that the Bill should be before Cabinet the following week. As soon as Cabinet approved the Bill it would be brought before the Committee.

Tabling of report
The Chair tabled the report on the study tour of Limpopo. He asked that members read it so that it could be adopted at the next meeting.

Invitation of stakeholders in ID campaign
The Chair stated that the Committee should invite key stakeholders in the ID campaign. There are a number of organisations, including Business South Africa, Black Sash and other NGOs that could help in the ID campaign. The Committee should show their support for this. The ID campaign was crucial to sustaining democracy and empowering citizens. He had met companies on the trip that wanted to donate computers to Home Affairs. They had been referred to the Department. Stakeholders should be invited so that they could work out what could be done with the Department present. He expressed his concern at the number of people without Identity Documents. Home Affairs could not do this alone, other stakeholders had to be brought on board.

Mr Pretorius stated that the Education Department and Schools had approached Home Affairs about getting the Department to go to schools.

The Chair responded that it would be useful to know what the various stakeholders were doing.

Prince Zulu asked if the Northern Cape was considered a poor, rural province. People always spoke of the Eastern Cape, KwaZulu-Natal and Limpopo as poor, rural provinces, but the Northern Cape was in a similar position.

Prince Zulu asked that the Chair clarify whether constituency offices were to be used for the ID campaign. There had been conflict over whether a constituency office was a party office and so whether it should be part of the campaign.

The Chair replied that constituency offices are not party offices - they are an extension of Parliament. They are part of the campaign. There should be meetings in constituencies with stakeholders to see who could do what in the campaign. The Department could not meet the challenge on their own since they were very stretched.

An ANC member suggested that the SABC be invited to take part in the ID campaign. The Department of Sports and Recreation could also assist with advertisements at sports fields.

The Chair responded that they would be contacted about this.

Oversight visit to Head Office
The Chair reminded the Committee of the upcoming oversight visit to the Department Head Office. The Committee would also have to check on HANIS since it appeared to be getting increasingly expensive. The IEC's preparedness should be checked during the visit.

Ms I Mars (IFP) drew the Committee's attention to an advertisement for a meeting on the Immigration Act in the Good Hope Chambers.

The Chair thanked Ms Mars. The meeting was the second public consultation of the Immigration Advisory Board. He noted that Section 37 of the Immigration Act was not yet in operation since the Justice Department had yet to train magistrates for it. Home Affairs and Justice were to work together on this.

The meeting was adjourned.

Appendix 1 : Legislative Programme of Department

LEGISLATION TO BE SUBMITTED BY THE DEPARTMENT OF HOME AFFAIRS TO PARLIAMENT DURING THE CURRENT SESSION

1 The Electoral Amendment Bill
The Electoral Amendment Bill incorporates a proposed electoral system which seeks to retain the current electoral system unchanged in line with the Cabinet Resolution. The present system provides for 400 seats in the National Assembly to be filled in an election where voters vote for a party. The party is allocated a number of seats proportional to the percentage of the total number of votes attracted by the party, the seats are filled from nine regional lists of candidates topped up, if necessary, from the national list of candidates.

The proposed Bill also retains the current system for the provincial legislatures and further regulates the modalities of conducting elections and allocation of seats in the National Assembly and Provincial Legislatures.

This Bill was submitted to Cabinet through the Cabinet Committee for
Governance and Administration which Committee made certain
recommendations. These recommendations were subsequently approved by
Cabinet on 25 July 2003.

As Minutes of the Cabinet on this Bill only became available on 4 August 2003, these recommendations have since been incorporated into the Bill which will be re-submitted to Cabinet at its next meeting.

2. Alteration of Sex Description and Sex Status Bill
The introduction of this Bill follows the recommendation of the South African Law Commission.

The Bill aims to provide legal mechanisms in terms of which any person who has undergone a sex change operation may apply to the Director-General of the Department of Home Affairs for the alterations of his/her sex description in the National Population Register.

The Bill is currently tabled in parliament.

3. Films and Publications Amendment Bill
The main objective of this Bill is to make provision for the prohibition of child pornography accessed through the internet and for matters incidental to the more effective investigation and prosecution of child pornography offenders.

Prosecutors and police highlighted the frustrations experienced in the investigation and prosecution of recent child pornography offenders, noting in particular that the accused often escaped Penal sanction provided by the Act, on grounds which did not apply to offences of a similar serious nature.
The Bill includes amendments to the definition of child pornography because the present definition is limiting in that it does not cover all aspects relating to child pornography.

This Bill was submitted to Cabinet through the Cabinet Committee for Governance and Administration which Committee made certain recommendations.

This has been attended to and a further Cabinet memorandum will serve next week at the Cabinet Committee for Governance and Administration.

4. Marriage Amendment Bill
The proposed amendments to the current Marriage Act came about as a result of an investigation and research conducted by the South African Law Commission.

Most of the amendments may be regarded as consequential in the sense that certain obsolete words are to be repealed in accordance with our current political dispensation. These are words like Commissioner, solemnisation, Union of South Africa, province of the Union and reference to different population groups.

The Bill also seeks to provide for the appointment of South African diplomats abroad as ex officio marriage officers for purposes of conducting marriages in foreign missions.

The Bill also deals with situations where there is a change in the name of a religious denomination where a marriage officer was appointed under the previous name and further provides for situations where there is an amalgamation of various religious denominations.

The Bill further provides for new mechanisms for lodging objections to marriages by providing that same should be made in writing to the marriage officer at least 24 hours before the actual marriage is conducted.

A standard marriage formula is also envisaged so as to have uniformity in the conduct of marriages.

In line with the constitutional provisions, the minimum age of entering into a marriage is set at 18 years for both males and females thus doing away with the gender stereotypes of the past.

In an effort to curb corruption the requirements of identification are sought to be amended by requiring positive identification and/or and affidavit attested to in the presence of an official of the Department of Home Affairs.

This Bill was submitted to Cabinet through the Cabinet Committee for Governance and Administration which Committee made certain recommendations.

This has been attended to and a further Cabinet memorandum will serve next week at the Cabinet Committee for Governance and Administration.

5. South African Citizenship Second Amendment Bill
The South African Citizenship Second Amendment Bill intends to bring the South African Citizenship Act 1995 in line with section 20 of the Constitution as far as dual citizenship is concerned. It repeals the provision which allowed the Minister to deprive a citizen of his or her citizenship for having used the citizenship of a foreign country to enter or depart from the Republic, or to enter or depart from the country which issued such passport or any other third countries. The Bill replaces such provision with one which imposes penalties on a citizen using a foreign passport to enter or depart from the Republic or utilizes his or her foreign citizenship while in the Republic.

This Bill was submitted to Cabinet through the Cabinet Committee for Governance and Administration which Committee made certain recommendations.

This has been attended to and a further Cabinet memorandum will serve next week at the Cabinet Committee for Governance and Administration.