Civil Union Amendment Bill: briefing by Parliamentary Legal Advisor on written submissions

Meeting report

Meeting report:

The Chairperson opened the virtual meeting and welcomed Members, Ms Noluthando Mpikashe, the Parliamentary Legal Advisor, and Ms Anthea Van Der Burg, Select Committee Content Advisor. She noted the apology from Mr M Mmola (ANC, Mpumalanga) who was unable to attend. The purpose of the meeting was for Members to engage with the Civil Union Amendment Bill [B11B-2018] (the Bill). The briefing and the discussion on the SAPS Budget Vote Report was postponed allowing the Committee time to sort out procedural issues with the NCOP. The last item on the agenda entailed the consideration and adoption of the previous minutes of the Committee’s meetings from December 2019, February, and March 2020.

Discussion on the Civil Union Amendment Bill

Background to the Bill:

The Chairperson provided some background to the Bill for the Members. The Civil Union Act 17 of 2005 was enacted because of the Constitutional Court decision in Minister of Home Affairs v Fourie 2006 1 SA 542 (CC). The Constitutional Court ruled that it was unconstitutional for the state to provide the benefits of marriage to opposite-sex couples whilst denying them to same-sex couples. This infringed the right to equality before the law and the right not to be discriminated against by the state on grounds of sexual orientation. The Civil Union Act extended recognition of marriage rights to same-sex partners and gives same-sex partners the right to enter into a civil partnership known as a civil union.

Civil unions may be solemnised either by religious marriage officers, by ex offıcio marriage officers, or by designated marriage officers who are civil servants. The Bill seeks to address an area of concern that stems from section 6 of the Civil Union Act, which provides that: ‘‘A marriage officer, other than a marriage officer referred to in section 5, may in writing inform the Minister that he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union.’’

In the case of civil marriages (i.e. couples of the opposite sex), section 2 of the Marriage Act 25 of 1961 provides that a marriage officer must solemnise all marriages placed before him or her and is not allowed to refuse to solemnise a marriage on the grounds of conscience, religion, or belief. However, the same marriage officer is permitted in terms of section 6 of the Civil Union Act to object on the grounds of conscience, religion, and belief in respect of solemnising same-sex civil unions. By submitting this objection notice, the marriage officer is relieved of any obligation to solemnise such unions.

The marriage officers envisaged in section 6 of the Civil Union Act are those who solemnise civil unions in their capacity as civil servants - the same civil servants who as marriage officers have no legal rights to object to solemnising marriages under the Marriage Act. For instance, a devoutly Christian civil servant may not object to solemnising a marriage for an opposite-sex couple who are atheist or Muslim. A marriage officer who has racist views, may not object to marrying an interracial opposite-sex couple. Civil servants may object only to solemnising same-sex unions under the Civil Union Act. The only ground for objection is the sexual orientation of the couple, which is in violation of section 9(3) of the Constitution.

In the context of South African same-sex partnerships, many same-sex couples may be obliged to have their marriages conducted by civil servants because the religious bodies they attend are unwilling to do so. The prevalence of homophobia in our society could mean that many civil servants will avail themselves of the statutory right to lodge objections, resulting in same-sex marriage becoming available in theory only, especially in rural areas. This would clearly constitute undue hardship for same-sex couples. This leads to a conclusion that section 6 of the Civil Union Act limits the rights of same-sex partners to enter a civil union, and this limitation cannot be justified in an open and democratic society.

The purpose of the Bill is to repeal section 6 of the Civil Union Act, which allows a marriage officer to inform the Minister that he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex. There are no financial implications for the state. The Civil Union Amendment Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution, as it does not affect provinces.

Public involvement:

The Chairperson noted that in terms of public involvement, the Committee previously agreed to advertise for public comment which was done in national and provincial media in all 11 official languages. The comment period was from 5 November to 5 December 2020. The Committee received 325 written submissions from individuals and various organisations. Those submissions who argue against the passing of the Bill state that marriage officers should marry same-sex couples, while those who argue in favour of the Bill state that marriage officers must be afforded the opportunity to exercise their religious beliefs.

Written submissions opposing the Bill:

Ms Anthea van Der Burg, Select Committee Content Advisor, briefly summarised the written submissions opposing the Bill that was received. In respect to those opposed to the repeal of section 6 of the Civil Union Act, they argue that section 15, which includes the rights to freedom of religion, conscience, thought, beliefs, and opinions, and section 9(3) of the Constitution, the right not to be unfairly discriminated against, are directly affected by the Bill’s removal of section 6.

They further argue that the repeal will affect the human dignity of all persons, including those who have a conscientious objection to solemnising a same-sex marriage. It is argued the state may not unfairly discriminate directly or indirectly against State employees based on their conscience, religion, or beliefs.

They also made various recommendations. One organisation recommended that the Bill be rejected and sent back to the National Assembly (NA) to debate the constitutionality of the Bill. In the alternative, they recommended that clause 1 and 2 of the Bill be amended to include an insertion of section 6A in the Civil Union Act that provides for the Minister to make regulations to ensure that practical solutions to prevent the infringement of human rights be implemented in every Department of Home Affairs office.

Regarding the transitional provisions, they recommended that until the passing of such regulations, the Minister must ensure the availability of a marriage officer (other than referred to in section 5 of the Civil Union Act) at every Department of Home Affairs office. Many other administrative solutions were proposed which included the roving of marriage officers, the assignment of employees to specific offices, and the hiring to redress any imbalance in staffing needs.

Written submissions in favour of the Bill:

Ms van der Burg continued to briefly summarise the written submissions in favour of the Bill that was received. In respect to those who favoured the repeal of section 6 of the Civil Union Act, argued that section 6 was problematic as it allows a marriage officer to impose a model judgment towards a same-sex couple and to object to solemnising their civil union. They stated that section 7(2) of the Constitution provides that the State must protect, promote, and fulfil the rights as contained in our Bill of Rights. It was argued that section 6 of the Civil Union Act infringes on section 7, 9, 10, and 12 of the Constitution which cannot be justified in terms of section 36, the limitation of rights-clause.

They also made various recommendations. They argue that by allowing marriage officers to object to solemnising same-sex marriages for the 24-month period after the adoption of the Bill is an unjustifiable limitation on the constitutional precepts contained in section 9, 10, and 12 of the Constitution. The Bill needs to specifically mention that this step envisaged by the Bill is to ensure that same-sex couples can solemnise their unions. As it is a transitional provision, it is necessary to have a timeline in which the Department of Home Affairs will take steps to ensure that each of the offices has a marriage officer who is able to solemnise a same-sex union. They propose the rewording of clause 2 of the Bill to accommodate such a proposal.

Discussion:

The Chairperson noted that a document outlining the content of the written submissions have been submitted to Members for consideration. She asked whether Members are satisfied with the process of public engagement that has been followed.

Ms Z Ncitha (ANC, Eastern Cape) asked whether the process of public involvement included public hearings. Did the various provinces conduct and conclude public hearings?

Mr A Gxoyiya (ANC, Northern Cape) stated that the Committee has agreed to advance the route of requesting submissions. The time that the Committee had to deal with the process was tight and it was not able to conduct public hearings. The Committee allowed a longer period for written submissions in this regard. If everyone has submitted and no individual or organisation has reached out saying that they were unable to submit, we can move to the next level to get a legal briefing on the submissions received.

The Chairperson reminded Members that the Committee did conduct public hearings during their consideration of the Cybercrimes Bill in December 2019. This was because the submissions received were of a more technical nature. Are Members comfortable with their understanding of the written submissions received or does the Committee require oral submissions for clarity?

Mr I Sileku (DA, Western Cape) stated that it would not be an injustice to allow individuals and organisations that made written submissions to present oral submissions to the Committee. It could be conducted on a virtual platform. What would the legal time restrictions be in this regard?

Mr G Michalakis (DA, Free State) stated that he is fairly satisfied with the submissions, unless there is a serious request from an individual or organisation to present oral submissions. An indication is required to determine whether such a request has been made so that the relevant stakeholders can be afforded an opportunity to present oral submissions.

Ms C Visser (DA, North West) concurred with Mr Michalakis and Mr Sileku. If there are any stakeholders that have not yet submitted their objections or recommendations, they should be allowed the opportunity to do so.

Mr S Zandamela (EFF, Mpumalanga) emphasised Ms Ncitha’s question on whether the process of public involvement included public hearings in the various provinces.

The Chairperson stated that the Committee took the decision in a previous meeting to place adverts in national and provincial media to get submissions. There may be the need for oral submissions for Members to be able to make more sense out of the written submissions. Various stakeholders who submitted their written submissions to the Committee stated that should we require them to make oral submissions they would be able to do so.

Mr Gxoyiya proposed that the Committee obtain legal advice to close loopholes of the process being challenged. He referred to the element of public hearings as raised by Ms Ncitha. There have been numerous Bills returned because of insufficient public hearings being conducted.

Mr Michalakis concurred with Mr Gxoyiya by stating that the NCOP has a duty to ensure its Bills are presented in a manner that followed the constitutional process correctly.

The Chairperson thanked the Members and stated that her office would seek the requisite legal advice and to discuss it in a follow-up meeting. The presentation by the Parliamentary Legal Advisor has been postponed until after the legal advice surrounding the need for public hearings has been obtained.

Adoption of minutes

The minutes for the Committee’s meetings dated 3 December 2019, 5 and 12 February, and 11 and 13 March 2020 were adopted.

The Chairperson noted that when legal advice is received, the Committee will continue with their discussion surrounding the Bill.

The meeting was adjourned.