Constitutional Amendment bill tabled by ACDP MP Steve Swart

6 September 2006

Ms B Mbete
Speaker of the National Assembly
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
CAPE TOWN

FAX: 021 461 9462

Dear Madam Speaker

SUBMISSION OF LEGISLATIVE PROPOSAL: CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SIXTEENTH AMENDMENT BILL

Kindly find attached hereto a copy of the memorandum required in terms of Rule 234(1) pertaining to the Constitution of the Republic of South Africa Sixteenth Amendment Bill, which I intend introducing in the Assembly in my individual capacity for purposes of obtaining the Assembly’s permission in terms of Rule 230(1).

I submit that the attached memorandum conforms to the requirements as set out in the above-mentioned Rule.

You are requested to table the memorandum in the National Assembly as required in terms of Rule 234 as well as to refer it to the Committee for Private Members Legislative Proposals and Special Petitions.

As you are aware, legislation must be passed by parliament by 1st December 2006 in terms of the Constitutional Court decision in the matter of Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs 2006(1) SA 524 CC (the Fourie-case). I understand that the Civil Union Bill, 2006, will be tabled shortly.

There is huge public interest in constitutionally protecting the traditional view of marriage from legislative or judicial challenge, as proposed in the attached memorandum. To affect such a constitutional amendment not only requires various steps as set out in the Rules, but additionally two thirty day periods as set out in section 74 of the Constitution.

Your urgent attention and assistance in expediting this matter will thus be greatly appreciated.

Yours faithfully


MR STEVEN SWART MP
AFRICAN CHRISTIAN DEMOCRATIC PARTY


REPUBLIC OF SOUTH AFRICA


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THE CONSTITUTION SIXTEENTH AMENDMENT BILL, 2006


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(As introduced in the National Assembly as a section 74 Bill)
(The English text is the official text of the Bill)

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(MR S N SWART, MP)

[B…..---- 2006]






GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate ommissions from existing enactments.
_________________ Words underlined with a solid line indicate insertions in existing enactments.


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BILL

To amend the Constitution of the Republic of South Africa, 1996, in order to add a definition of marriage; and to provide for matters connected therewith.


BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:–

Amendment of section 39 of Act 108 of 1996
1. Section 39 of the Constitution of the Republic of South Africa, 1996, is hereby amended by the addition of the following subsection:

“(4) The Constitution shall be interpreted to mean that a marriage is a voluntary union of a man and a woman.”

Short title
2. This Act shall be called the Constitution Sixteenth Amendment Act, 2006.



MEMORANDUM ON THE OBJECTS OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SIXTEENTH AMENDMENT BILL

1. BACKGROUND

1.1 The Constitutional Court, in the matter of Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae); 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), were inconsistent with the Constitution and invalid to the extent that they failed to provide the means whereby the 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, 1961 (Act No. 25 of 1961) will be read as including words “or spouse” after the words “or husband”.

1.2 The Constitutional Court made it very clear that a remedy that on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to bring new forms of marginalisation – a concept of separate but equal – would be unacceptable.

1.3 Accordingly, the constitutional amendment as proposed is the only means of protecting the common law definition of marriage and the marriage formula as set out in section 30(1) of the Marriage Act, 1961 (Act No. 25 of 1961).

2. OBJECTS OF THE BILL

The objects of the Bill are to amend the definitions clause in Chapter 2 of the Constitution of the Republic of South Africa, 1996, by the addition of a new subsection in which a marriage is defined as a voluntary union of a man and a woman. The purpose of the amendment is to effectively protect from legislative or judicial challenge the traditional view of marriage supported by the large majority of South Africans.

3. DEPARTMENTS/BODIES CONSULTED

The Marriage Alliance of South Africa was consulted.

4. IMPLICATIONS FOR THE PROVINCES

There are no financial implications for the provinces.

5. FINANCIAL IMPLICATIONS FOR THE STATE

There are no financial implications for the State.

6. PARLIAMENTARY PROCEDURE

The opinion is held that the Bill must be dealt with in accordance with the procedure established by section 74(2) of the Constitution since it contains an amendment which seeks to amend chapter 2 of the Constitution.