Tuesday, 14 November 2006
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY
CIVIL UNION BILL
(Second Reading debate)
The DEPUTY SPEAKER: Hon Minister, just before you address the House, while we welcome the public to the gallery it must be remembered that this Chamber is a forum for debate by Members of Parliament only. We are not going to allow participation of the members of the public by clapping. Thank you very much, and be good guests to the Assembly.
The MINISTER OF HOME AFFAIRS: Thank you, Madam Deputy Speaker.
Hon members, colleagues and friends, today we present for the consideration of this House the Civil Union Bill of 2006 after an elaborate process of public consultation and debate in this country.
The process of debate on this Bill has been rigorous. The extensive media coverage on the debate on the Bill has resulted in the debate continuing in our homes, workplaces and communities throughout our country. One thing that came out of the debate has been an indication that people in all sections of our society feel very strongly about the issues being dealt with in this Bill.
This dialogue is by no means over, and we continue to engage each other on these matters in a constructive way in order to lead South Africans towards the kind of society that we all fought for, as embodied within our Constitution.
For this reason, we are expecting robust debate even during this second reading debate here in the House. I must also indicate that we have already noted the changes made by the Portfolio Committee on Home Affairs to the original Bill. Understanding the difficulties which they were faced with, we have decided to support those changes.
The challenge that we shall continue to face has to do with the fact that when we attained our democracy, we sought to distinguish ourselves from an unjust painful past by declaring that:
Never again shall it be that any South African will be discriminated against on the basis of colour, creed, culture and sex.
This House, in passing the Constitution in 1996, recognised the fact that our nation’s commitment to this noble principle of equality should be the cornerstone of the society we want to build. In breaking with our past, therefore, we need to fight and resist all forms of discrimination and prejudice, including homophobia.
Mr M WATERS: Why have two Bill?
The MINISTER OF HOME AFFAIRS: We should also condemn violence. Why don’t you wait for me to finish? Then you can raise your issues. [Interjections.] Just be quiet, man!
We also condemn violence against same-sex couples, fuelled by hatred, as recently observed here at home and in other countries. This commitment to our Constitution and in particular the principles of human dignity, equality and freedom of religion informed the drafting and refinement of this Bill.
The opening clause of the Bill of Rights reaffirms this view for us, and I will quote again here:
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
As far back as 1996, government itself recognised that the legal regime that regulates marriage in our country needs to be realigned with constitutional principles. It is for this reason that the Law Reform Commission started work on the review of the marriage legislation in the country. However, during that process, the definition of marriage in our current law faced a challenge within our courts. The Constitutional Court, in the matter of Minister of Home Affairs v Fourie, and Lesbian and Gay Equality Project and Others v Minister of Home Affairs, 2006, declared that the definition of marriage under common law and the marriage formula as set out in section 30(1) of the Marriage Act 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 will be read as including the words ``or spouse’’ after the words ``or husband’’. This current Bill was drafted in response to the court’s judgment in the Fourie case.
The court, while noting that ``equal’’ does not mean ``identical’’, ruled that while it could not pronounce on the constitutionality of it, it would be helpful to point to certain guiding constitutional principles.
In terms of the first principle, the objectives of the new measure must be to promote, one, human dignity, the achievement of equality, and the advancement of human rights and freedoms. The second guiding principle states that, and I quote:
Parliament must be sensitive to the need to avoid a remedy that, on the face of it, would provide equal protection, but would do so in a manner that is calculated to reproduce new forms of marginalisation.
Whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of intangibles as well as tangibles involved.
The Civil Union Bill presently before this House indeed provides such a remedy. The objects of the Civil Union Bill are to provide for the public solemnation and registration of civil union by way of either a marriage or civil partnership, and to provide for the legal consequences thereof.
As noted in the memorandum on the objects of the Bill, the Bill makes provision for opposite and same-sex couples of 18 years or older to solemnise and register a voluntary union by way of either a marriage or a civil partnership. Care has been taken to ensure that a distinction is drawn between the responsibilities of the state and the church, as section 15(3) of the Constitution is indicative of sensitivity in favour of acknowledging diversity in matters of marriage. The Bill provides for same-sex couples to be married by civil marriage officers and such religious marriage officers who consider such marriages not to fall outside the tenets of their religion.
In order to give effect to the Constitutional Court ruling, same-sex couples have to be allowed to marry so that they can enjoy the status, obligations and entitlements enjoyed at the moment by opposite-sex couples.
The Bill allows for both same-sex and opposite-sex couples to choose the option of having their unions solemnised and registered as a civil partnership by a state-employed marriage officer.
We’ve decided to reject the calls to amend the Constitution. Whilst we understand that the Constitution can be amended from time to time to deal with practical arrangements, we are cautious of an amendment to the Bill of Rights, as it is the bedrock on which our Constitution and our democracy is based.
We also do not share the current view amongst others in our society that in order to recognise one of the rights in our Constitution, you need to take away another. Our Constitution clearly makes room for the right of people to be treated equally without a hierarchy including, as it is in this case, a situation where those rights are for a minority in our country.
The consultation process in the public has been extensive, with the Portfolio Committee on Home Affairs conducting public hearings in all nine provinces and in Parliament. The Constitutional Court itself also noted that the process of the Law Reform Commission has also ensured extensive consultation.
This process of law reform, particularly with regard to the changing concept of family law in our society, remains an issue for further engagement. We will be considering the recognition of religious marriages, revision of the Marriage Act of 1961, and of course, the regulation of domestic partnerships.
I must thank all members of the portfolio committee, its chairperson, Comrade Hlomane Chauke and the different study groups of the different parties represented in the committee for all the hard work they put in finalising this Bill.
I am aware that you have spent a lot of time away from your families as a result of this work. You’ve engaged extensively with the public. You’ve listened carefully to many, many divergent views, and you’ve presented this House with a Bill that is consistent with the principles of our Constitution, and the guidelines set out by the Constitutional Court almost a year ago. If you did not engage as robustly as you did in representing these views, you would have failed in your duties as public representatives.
It is very important for members to appreciate that within the three spheres of government, Parliament should continue to be the one bearing the responsibility to pass legislation and not have the consequences of the judiciary performing this function on behalf of the legislature.
The principle of separation of powers therefore needs to be protected, and it is for this reason that we have chosen to adhere to the directive of the Constitutional Court, and not allow the Court itself to amend a piece of legislation.
The dynamic interface and respect for the different roles of the three spheres of governance will be a reflection of a healthy democracy.
Hon members, I present to you for your consideration the Civil Union Bill of 2006. Thank you very much. [Applause.]
Mr H P CHAUKE / END OF TAKE
THE MINISTER OF HOME AFFAIRS
Mr H P CHAUKE: Madam Deputy Speaker, it has really been a task and a half. On behalf of the portfolio committee, I think there is nothing much to be said today because we have managed to listen and to engage with the public on the Bill that has been tabled before Parliament.
Let me start by taking this opportunity to outline the manner in which we have handled this Bill and that is that, when the Bill was tabled before Parliament, there were problems already around the constitutionality of the Bill. As we all know, the state law advisor found that there are problems within the Bill on which he could not give a clear report to Parliament on the constitutionality of the Bill with a number of recommendations that he made.
By the time the Bill was tabled before the committee jointly by our Minister and the Deputy Minister of Justice, the portfolio committee did its own assessment of the work and the challenge before the committee. We then decided, after listening to the presentation, that it would be necessary, since this matter is one of the most sensitive matters - because even the court itself found that this matter needs to be handled in a sensitive manner - and we made sure that we moved along with the people in dealing with the matter.
We then decided as a committee that we should embark on a programme of public hearings. It’s normal procedure that on any Bill that is before Parliament, we will have to have public hearings but we then extended the hearings to go around the country because of our understanding of the nature and the sensitivity of the matter that was before the committee.
The first hearings were held in Soweto where we invited the residents and people generally of Gauteng, who came in their numbers to participate and to engage robustly with Parliament. They raised their concerns around the issues that we were placing before them, and those hearings continued in all the provinces, to cut matters short.
What I want to raise is that during public participation at the public hearings, there were a number of issues that were raised that came out of the public hearings. One of the issues that came out was the issue of amending the Constitution. There was this general call that sort of rejected what we wanted to do as Parliament, especially looking at the Bill itself that its something that the public will not accept - that we should solemnise marriages of same-sex couples. Then there was this call that said protect the marriage and amend the Constitution so as not to allow these marriages to take place.
The second view that came out of the public hearing was that of having a referendum. This was simply to say that there is a need to test the will of the people on what we want to do as government, and the majority of the people, because this was informed by the notion that says we reject, we don’t agree, we don’t support what government wants to do, and let us call for a referendum to test the will of the people. That was the view that was coming generally from the public.
The third thing that came out very strongly was that the Bill itself in it has a component that dealt with the issue of a civil union and the issue of domestic partnership. The majority of the people again felt that the issue of domestic partnership sort of interfered with customary marriage and that it interfered generally with any relationship because what it was saying was that, like any relationship that you get into, it may be a registered or non-registered relationship, but automatically you would sort of be covered by the law. Most of the people felt very strongly that it was not necessary for us to engage on that matter, especially a matter which was not quite urgent. We should have put it aside and begin a process so that we can begin to engage with the public again.
What was coming across, however, was the fourth point which was the time allocated for Parliament to handle this matter because, generally, the public felt very strongly about the time given to Parliament. The court in its ruling said that it would give Parliament one year to come up with the remedy to deal with this problem. So people felt very strongly that there was a need in fact to have more time so as to allow more debate around the issue which is before us.
The last point obviously was the usage of the word “marriage” in the Bill. People felt very strongly that, whatever it is that we want to do, we should not use the word ``marriage’’. You know that there were a number of organisations and churches that marched to send their memorandums, who sent a number of submissions that were talking about the usage of the word “marriage” itself. Other speakers will come who will open that part as to why we have opted to have ``marriage’’ in the Bill. Speakers who will come after me will raise those issues.
So I think, generally, the approach which we took as Parliament was to recognise the very fact that whatever we do, we are guided by the Constitution. These rights that we talk about are not rights that are made by the ANC somewhere in the corner there. These rights are the rights that we ourselves, who have participated in compiling this wonderful document that we call the Constitution of South Africa which we all pride ourselves on, entrenched in it. These rights are rights that you cannot take away. That is the manner in which we approached these public hearings ourselves. We explained these rights to the people. In fact, we mostly found that people understand the Constitution more than some of you sitting in the Chamber here.
The biggest challenge obviously that is facing us is that we have to make sure that we meet the Constitutional Court judgment and, given the manner in which the Minister has elaborated on these issues, we have tried in fact to respond to that Constitutional Court judgment. We have removed the domestic partnership, as the people have said. We have looked at the Bill itself and said that to make it only for a specific group of people will not be correct. Why can’t we open this Bill to allow not only same-sex partners but also each and every one? Mncwango, if you want to decide and go to another extension of same-sex marriage, you may. [Interjections.]
The SPEAKER: It’s hon Mncwango.
Mr H P CHAUKE: You may obviously use the Bill and make sure that those rights or marriages are solemnised. I am saying that it’s a challenge that we have to take up as a country. There are still marriages that are not yet even covered, and this Bill sort of begins to attempt to cover some of the areas - Hindu marriages, Muslim marriages. There are a number of marriages that are still not yet covered.
Now that is the challenge, and that’s what we have agreed upon in the committee that we still need to sit and look at some of these areas because there will be a need to look at the general law that governs marriages as a state. The part of the celebration of weddings and all of that is not done by the state but is done by formations, organisations and individuals who decide how they want to celebrate their marriage at the end. That is not the responsibility of the state.
What you then found during these public hearings was that the majority of these people who said don’t use the word “ marriage” were from the church formations, but the church formations themselves were very divided. You get the SA Council of Churches coming forward to say, ``We come from the SA Council of Churches and our position on this Bill is that we don’t support it. We don’t support the fact that a man must marry another man or a woman must marry another woman.’’ Throughout as we moved around the provinces and you come to Parliament here with public hearings, the same applies. The SA Council of Churches comes in and says,``You know, those that claim they were representing the SA Council of Churches were lying. Here is the position of the SA Council of Churches. The SA Council of Churches’ position is that we agree that same-sex couples should be given a opportunity to marry.’’
Now it was very clear in fact from the beginning that we have this problem of church formations being very divided in fact on handling the issue that we were dealing with. That in itself obviously wouldn’t hinder the progress that we had to make as a committee but there are other presentations that came forward, for example, from the House of Traditional Leaders. All of them were talking about amending the Constitution. How then do you give this right and tomorrow, because you feel very strongly that you don’t agree with this thing, you then say, amend the Constitution not to give that right? I think it’s a challenge that all of us, when we speak here, must be able to respond to. We must be able to respond to the right that we have given to this individual, this minority, that we are so fearful that they will come in and change the whole marriage system in the country.
I think we should engage on this for us to understand where our standpoint is, because in our deliberation as a committee, having met with almost every single top lawyer in this country, every single constitutional expert that we have met in the committee sort of agreed with us that there is no way that you can move away from the rights of these individuals because it’s entrenched in the Constitution. You cannot run away. It’s something that is given and its something that we have to live with. [Interjections.] So obviously, you gave it; you were part of the Constitution-making process and you were part of the drafting of the Constitution. When we adopted that Constitution, all of us stood there - there is a nice picture that you can see outside there, showing you are there - confirming that we are part, we will respect and uphold the supreme law of the country which is the Constitution.
Without any waste of time, I want to take this opportunity to thank the Department of Home Affairs, the legal team, the Minister for giving that leadership, state law advisor and the parliamentary advisors, and to thank Parliament generally on the support it has given to the portfolio committee. It was not an easy thing for us to have got the resources that were given, the transport arrangements as well as food and everything that was put together in making sure that, in the law-making process, we move along with our people. It is very important.
People have spoken on this issue, and the more we speak about this issue, the more people begin to understand it - that it is something you cannot take away. On that note, I really want to thank members of the committee who really gave of their best - from the DA, IFP, ACDP and everybody, in fact - in making sure that we listened to the people and came up with whatever that we have come up with, which is a Bill we believe will pass constitutional muster. The argument has been that this Bill will not pass constitutional muster but we believe that the work that was done by this committee confirms that this Bill will go through the Constitutional Court. In its findings, if it finds that this Bill is not constitutional, obviously, there will be a particular process that we must engage on with Parliament. [Interjections.] No, there is nothing wrong with doing that. It can be done all over again, but we have a responsibility as lawmakers, and we cannot run away from our responsibility. If the Constitutional Court finds that whatever we have made is still lacking, we will come back to Parliament again and engage and resolve whatever it is that is not in line with the constitutional requirements to make sure that these individuals that we want to cover are covered.
I know that, from the opposition, some of them have already declared their position very clearly, and we will support you. We will make sure that if you want to be unionised, you will be unionised. If you want to get married, we will make sure that you get married. That is our responsibility. As you go out as Members of Parliament, go and preach one gospel: These rights are rightly given and are rights that you cannot take away.
We will still listen to the debate and we will still want to engage more on these issues as you speak. Thank you very much, and thank you very much members on that point. [Applause.]
Mrs S V KALYAN / END OF TAKE / SS
Mr H P CHAUKE
Mrs S V KALYAN: Deputy Speaker, Parliament is doing something unique today by passing the Civil Union Bill. It is following an order by the Constitutional Court to create legislation to remedy a defect in the Constitution of our country, whereby same-sex couples are prohibited from enjoying the same status, entitlements and responsibilities accorded to heterosexual couples through marriage.
Normally, Parliament passes legislation in keeping with the Constitution. Today is different because we are amending an Act of Parliament, which is unconstitutional. We were given a whole year to effect this legislation, but with the deadline almost upon us, the Department of Home Affairs suddenly tabled the Civil Union Bill as a response to the Fourie judgment in the second week of September 2006.
The original Bill tabled allowed for the civil union between same-sex couples and, although there was a reference to the word “marriage” in clause 11(1), we were told by the Justice legal team that this was a mere legal nicety. The portfolio committee embarked on a series of public hearings in all nine provinces and in Parliament to gauge public opinion and sentiment on the proposed legislation.
A wide spectrum of input was received. With the exception of the NG Kerk, all faith-based organisations that presented, were totally opposed to the proposed Bill. Their main objection was that marriage could only be concluded between a man and a woman.
Many Christians, if not all, maintain that the Bible was the first constitution. Many called for the Constitution to be amended to protect marriage as a sacred institution, and some even proposed a referendum to settle the debate. Several legal opinions put forward the concept that the Civil Union Bill was unconstitutional in that same-sex couples could only conduct a union and not a marriage, and that the separate-but-equal approach would not survive a Constitutional Court appeal.
The state law adviser, in fact, refused to certify the original Bill, and even Parliament’s legal opinion was that the Bill was unconstitutional. Gay and lesbian groupings echoed the sentiment that by being allowed to have only civil unions, they were being treated as second-class citizens, and were clearly unhappy with this.
I think the Bill faced its fiercest opposition from the National House of Traditional Leaders and from Contralesa. The National House asserts that the Bill disregards the culture, customs and traditions of the majority of Africans, and thereby opposes this Bill. Contralesa regards Parliament’s task, as ordered by the Constitutional Court, to be embarrassing and divisive, and calls on Parliament to reject the Bill in its entirety.
A significant observation that emerged during the hearings is the extraordinary high level of homophobia and homoprejudice that exists in our country. While much of it is rooted in sheer ignorance, some of the views expressed were just pure vitriol and malice.
On a personal note, during the public hearings I often had to sit on my hand and bite my tongue when outrageous and often provocative antigay comments were made. I would like to applaud the gay and lesbian groupings for standing their ground, often in the face of strong opposition, mockery and sarcasm.
Five thousand eight hundred petitions, 637 written submissions and countless hearings later, we are here to vote on an amended version of the Civil Union Bill. It is quite unfortunate that the ANC pulled the amended version of this Bill out of the bottom drawer merely a day before voting in the committee. It is my considered opinion that the portfolio committee has misled the public in the hearings, because the version before us now is not the one presented during the hearings. I wonder how Judge Sachs will view the public participation clause he so expressly set out in the judgment.
The Bill in front of us today is not purely a Civil Union Bill, but is in fact a second Marriage Act, merely couched in a different name in an effort to appease both sides and arrive at a middle-of-the-road solution. The essential difference is that the Marriage Act of 1961 allows for marriage between girls and boys. The Civil Union Bill of 2006 allows for the union or a marriage between boys and boys or girls and girls or girls and boys. To put it bluntly, the straight guys have two choices in respect of marriage, and the gay guys only have one option.
Yet another significant difference is that in the Marriage Act, one has to be 21 years of age to marry, while in the Civil Union Bill the age of consent is 18 years. One wonders what Judge Albie Sachs will make of the law we have come up with and whether, in his opinion, it will pass the equality test. The removal of all reference to gender, as proposed by the DA, is indeed most welcome. Also, the exclusion of domestic partnerships in this Bill is great, because it doesn’t belong here.
It was quite interesting to note how much support there was by the ANC for the clause that refers to marriage officers who may apply to the Minister on grounds of conscience not to conduct unions or marriages for same-sex couples. This option creates space for further unnecessary discrimination, and causes offence to same-sex couples. It is quite ironic that the ANC will not allow its MPs to vote for the Bill on the grounds of conscience, and yet supports legislation to that effect.
I do have a great deal of sympathy for my colleagues in the ANC who will be forced to toe the line or face disciplinary action. Well done to those who choose to exercise their choice. Judge Sachs was indeed provocative to place a short timeframe on Parliament to enact legislation in this matter. The time we devoted to this Bill was too short, given its consequences, and adhering to a deadline is the wrong reason to pass legislation.
I was rather intrigued to read in the weekend papers a comment by the chairperson of the committee that this is an interim piece of legislation. I haven’t heard the Minister concur with this. If this is the case, then my point about rushing legislation merely to meet a deadline is indeed well made.
Parliament would do well to ask the Constitutional Court for an extension of time, so as to do justice to the task at hand and to rewrite the Marriage Act in the light of our democratic dispensation. Nevertheless, the Bill is a starting point in the right direction, but in the wrong way. The ideal is to have one Marriage Act for everyone. It is the only way to truly recognise the equality of all our people.
As a nation, we have a long way to go to eradicate discrimination on the grounds of sexual orientation. Some members of the DA are opposed in principle to the Bill as they are of the opinion that the Bill fails in terms of the equality clause of the Bill of Rights. The DA will allow a conscience and free vote on this Bill. [Applause.]
Mrs I MARS
Mrs S V KALYAN
Mrs I MARS: Madam Deputy Speaker, Minister, colleagues, the rights of equality and dignity are enshrined in our Bill of Rights contained in the 1996 Constitution of the Republic. As part of the right to equality, the Constitution holds that no one may be discriminated against based on his or her sexual orientation. In the past few years, the affirmation of this latter element of the right to equality has been the subject of numerous legal challenges in the High Court, the Supreme Court of Appeal and, ultimately, the Constitutional Court.
The Civil Union Bill is a result of a directive issued by the Constitutional Court to Parliament to rectify certain defects in our common law to give legal expression to the rights of equality and dignity.
However, the Bill before us today has, in many ways, been a headache and heartache for many South Africans. And, if the Sunday Times quoted the chairperson of the portfolio committee correctly, there is only temporary respite, as the Committee on Home Affairs would begin negotiations with “the Minister next year on a complete revision on the law on marriage, cutting the state’s role to a minimum, while ensuring that all groups and faiths are equally catered for”.
The conclusion – and the only conclusion – we can draw from this is that the whole issue is to be revisited and that, currently we are attempting to satisfy the requirement of the Constitutional Court’s judgment by 1 December. This is a duty we have.
Whether the version of the Bill before the House today will, in fact, meet the requirements of the judgment is open to debate, and one would expect that only the court would provide clarity on this matter.
The issue of major concern for us is more or less the same as that for our colleague from the DA, which is the shortness of time. The issue is so simple, because in the judgment there was a hint of the separation of the religious and the civil aspects of marriage, which should have been considered. We feel that this issue should have been opened up for more in-depth discussion. However, there was insufficient time, as mentioned by the chairperson.
I would just like to say that the course the committee took in taking this Bill to the provinces was really what I would call public consultation. The Bill was put into the hands of ordinary citizens and we did not just listen, as we often do when we have public hearings in Parliament where we hear advocacy groups presenting their cases. We heard ordinary citizens speak and they spoke extremely well, and it was amazing how informed they were.
We as a party support strong moral values and the role of the family as the foundation pillar of society. We know that many colleagues across the political spectrum share this view. This, however, does not imply contempt of the Constitution or of the judgment of the court. Last week, and only last week, the ruling party presented the latest version of this Bill that is now before us. In all honesty, we have not been able to discuss it broadly enough, again, because of the shortage of time.
It would be the understatement of the year to say that the original Bill has caused tremendous controversy on a subject that we all know is very sensitive, as the chairman said, and it should be treated accordingly. When the Portfolio Committee on Home Affairs took the Bill around the country in a comprehensive series of public hearings, it quickly became apparent that not only did it stir up emotions on all sides, it was also opposed by large sections of the communities on religious and moral grounds, as well as by the intended beneficiaries but for very different reasons.
This Bill is not supported by the IFP. I thank you. [Applause.]
Mr K W MORWAMOCHE / END OF TAKE/dhm/LB
Mrs I MARS
Mr K W MORWAMOCHE:
Sepikara, Motlatša Sepikara le maloko ao a hlophegago a Ntlo ye. Tla ke thome ka gore, tšeo di boletšwego ke Phathi ya Kganetšo mo ke ditaba tša bo, “sehlaga swara, e ja tša bo Pilo”. Ke ditaba tša bo, “ba lla kae re kgone go hula”.
E re ke thome ka go tlaleletša seo se boletšwego ke Modulasetulo wa Komiti ye ya tša Selegae ka ditaba tša theeletšo phatlalatšwa moo setšhaba se bego se lebeletše go šireletša setšo, setlwaedi, sedumedi le ditokelo tša sona - se sa lebelela ditokelo tša batho bao ba sa swanego le bona e lego seo se ka se re išego felo ge re lebeletše.
Ke laetše gape gore maloko kamoka a Ntlo ye ao a lego ka mo gomme a be a eme pele ga sethala a laetša gore a tla ama ke Molaotheo wa Ntlo ye - ge lehono ba hlanoga, Motlatša Sepikara, go rata gore nke le ba senke gore naa tšeo ba bego ba di botša setšhaba ba re ba tla ama ke Molaotheo wa Ntlo ye, ba be ba rereša naa?
Go ditšhišinyo kamoka tšeo di bego di bolelwa ge go be go dirwa theeletšo phatlalatšwa, ke laeditše gore e be e le tšeo ba lebeletšego ditokelo tša bona gomme ba se ba lebelela tša bao ba sa dirego tša go swana le tša bona. E be e le ditokelo tša go swana le gore, a re fetošeng Molaotheo gomme re nyake referentamo gore re kgone go gatelela bao ba se nago ditokelo tšeo di swanetšego - e lego seo Molaotheo wa rena o sa se dumelelego. Ka Sepedi ba re: “Di tlogeleng di gole mmogo le tla di bona ka mohla wa kotulo”.
Go bile le bao ba rego hlalosang lenyalo. Lenyalo o tla le hlalosa bjang mo manyalong ao a lego gona mo Afrika Borwa. Ka lenyalo la setšo re bolela ka monna ge a nyala basadi ka dikgomo. A nyala wona “makubukgomo basadi maraga thetho”. Ge go bolelwa ka lenyalo la semolao, go bolelwa ka monna ge a nyala mosadi o tee gomme le yena mosadi a tlaleletša se re rego: “A ba tlale ba ate monapelo ga a tsebje”. Ka Sepedi ge mosadi a nyalwa ka dikgomo re re: “Moraka monna ke mpa, go apara kobo ke mabala”. Bao ba rego go nyakega gore go be le molao wa manyalo wa go swana, go tla swana bjang mola go se na tshwano mo magareng ga manyalo a? “Monna ge a palelwa ke go tia kati o re kgoro ke ye nnyane”. “Pudi ge e tšhaba go tswala e re kgwatla di a lla”.
The Civil Union Bill provides for the formal and legal recognition of gay and lesbian partnerships with the same rights as conventional marriages. Among its provisions any two people aged 18 years and older may enter a civil partnership, which they may call a marriage and which will carry all the rights of a marriage under the existing Marriage Act. Partners may legally refer to each other as husband, wife, spouse or partner.
No one may be a partner in more than one civil union or marriage under either of the laws providing for marriage. Any marriage officer may solemnise a union under the Civil Union Act after its approval, but any marriage officer may record his or her objection to the law and decline to officiate the same-sex marriage. Churches may apply to have the marriage officer registered under the Civil Union Act, but none are obliged to do so. Partners wishing to marry need only produce a South African identity document or affidavit confirming their identity. Anyone who has previously been married under either law will need to produce proof of divorce or a certificate confirming the death of previous partner. There will be no calling of bans during the ceremony, but objections can be made in writing to the marriage officer before the ceremony and must be investigated.
Civil union marriages must, like traditional marriages, be conducted indoors, in a public office, house, church or wedding centre. The ceremony requires the taking of hands and is completed with a vow.
The ANC supports the Bill. Anyone who is opposing the Bill ...
... hulle kan maar lê en gaap en droom. Die ANC gaan regeer. [Tussenwerpsels.]
Mr C H F GREYLING
Mr K W MORWAMOCHE
Mr L W GREYLING: Madam Deputy Speaker, this is the tenth anniversary of our beloved Constitution. South Africans always mention with pride that ours is the most progressive constitution in the world. Unfortunately, however, the values of our society do not always match the progressive values of our Constitution.
This has been particularly evident in the public hearings on this Bill, which some people have used as a platform to express some of the most deplorable and deep-seated prejudices. It is clear that we have a long way to go before we can build a truly tolerant society where all our divisions can be bridged.
What has shocked the ID, however, has been the attitude of the ANC on this issue. Instead of showing true leadership, they chose to compromise on constitutional principles in an effort to appease both sides. Instead they have alienated both and drafted legislation that could be challenged in the Constitutional Court. In particular the clause that civil marriage offices can refuse to marry gay couples can certainly be seen to be discriminatory. Given our tragic history they should have also known that, as the South African Council of Churches stated, separate doesn’t ever mean equal. As the ID upholds the Constitution and the values therein, we are left with no choice, but to oppose the Civil Union Bill.
Rev K R J MESHOE
Mr L W GREYLING
Rev K R J MESHOE: Deputy Speaker, this I believe is the saddest day of the 12 years of our democratic Parliament when some members of this House, led by the ruling party, will be passing into law the Civil Union Bill which is opposed by the overwhelming majority of our people.
It is indeed very sad that the ANC leadership chose to support this Bill in spite of the overwhelming objections from bodies such as the Marriage Alliance representing millions of Christians, various other church and community groupings and the Congress of Traditional Leaders of South Africa. Their views have, for all intent and purposes, been ignored and rejected.
Hon Steve Swart made excellent legal submissions on behalf of the ACDP during deliberations in defence of the sanctity of traditional marriages and argued that the definition of marriage as a voluntary union between a man and a woman should be protected by a constitutional amendment. This argument was based on the fact that marriage was instituted by God Almighty and not liberals and that we value marriage and the family as a fundamental building block of society.
The ACDP, together with thousands of people and groupings that made submissions to Parliament, have consistently stated that same-sex marriages should not be legalised and that our Constitution should rather be amended to protect the sanctity of marriage as the voluntary union between a man and a woman.
The Civil Union Bill justifies immorality and by inference calls sexual perversion a legitimate alternative lifestyle that should be openly accepted. It calls immorality and perversion a true virtue that is commendable freedom.
May I remind this House that rejecting God’s house and despising His word will result in those doing it being given over to the consequences of their sins and divine wrath. Members must also be reminded that God will not be mocked. When this Parliament, under the instigation of the ANC, passes this Bill today then Parliament will have gone too far and is about to cross the line of God’s patience with us as a nation.
The prophet Isaiah said:
Woe to those who call evil good, and good evil... woe to those who are wise in their own eyes and clever in their own sight.
Why are some forces trying to convince the nation that homosexuality is okay when God calls it an abomination? For the sake of the peaceful future of this nation, Members of this Parliament must stop provoking God to anger as the men of Sodom and Gomorrah did and came under His wrath.
The writer of the book of Hebrews said:
... marriage should be honoured by all and the marriage bed kept pure, for God will judge the adulterer and all the sexually immoral.
Adultery, sexual immorality and homosexuality are grave sins in God’s sight since they are a transgression of His law and are defiling a marriage relationship between a man and a woman. With this Bill, the ruling party and all those who support it are inviting serious trouble on themselves without even considering the impact this Bill will have on future generations.
While the ACDP appreciates that this Bill is an attempt to meet the Constitutional Court ruling, we nevertheless believe it has gone beyond what was required by the court. [Time Expired.]
Ms S H NTOMBELA / END OF TAKE / Nelia (Eng/Afr) Euphraat (Sepedi) / Mlc Checked
Rev K R J MESHOE
Ms S H NTOMBELA: Madam Speaker, Ministers, colleagues, during our public hearing I received this anonymous message. Let me read it to you: I am a boy of 25 years. My appearance is that of a girl. My voice, my movement and everything within is that of a girl. In short, I am a boy in a girl’s body. What must I do? I tried for the past few years to be a boy, playing with boys, tried to make my voice deeper. Tried to move like a boy but I cannot. What must I do? Minister, where must I go? My family won’t understand. They say I bore them. They say I am a disgrace to the family.
*** Language spoken has changed to Sesotho ***
Ke ba tshehisa ka batho, ke tlontlolla lelapa la bona.
*** Language spoken has changed to English ***
The truth of the matter is, I am a boy in a girl’s body. What must I do? Where must I go? Sometimes I feel like killing myself for my family and my community make a joke of me. Sometimes I ask myself: why me in this family? Why did God do this to me? It is because God hates me. Ntate Meshoe, is it because God hates me? What must I do? Where must I go? Lucky are those who don’t have kids like me, those who don’t have grandchildren like me, those who live their lives freely, those who can move and those who are accepted by everyone, those who are loved by God. What must I do? Where must I go?
The fact of the matter is: I am a girl. I feel free when I am with girls. You will never understand what is within me, because you are lucky. You are not like me. You are very lucky because in this land God only loves you. Please, I want to live like you. I want to be accepted like you. I want to practice my rights like you. I am human being. I want to be free. I think God loves me too.
Don’t even wish to have children like me. Don’t even wish to have children and grandchildren like me. I wonder if that happens, what would you do, Ntate Meshoe? It can happen. It can be your child or it can be your grandchild. I am a South African. I belong here. I also want my rights and my dignity to be protected because I am here to stay.
*** Language spoken has changed to Sesotho ***
Mme Sebui, ka morao ha ho bala molaetsa ona, ke ile ka ipotsa hore nna ke mang, ke tswa kae? Ka ipotsa hore na ho a hlokahala hore ke hatelle ditokelo tsa batho ba bang.
Ke mang nna, ya tlang ho tlosa le ho silafatsa seriti sa batho ba bang. Ke mang nna, ya ka etsang hore batho ba bang ba seke ba thabela tokoloho ya bona. Nna ya neng a sena ditokelo, ya neng ha hatelletswe.
Le nna ke ne ke sena ditokelo tse kang ho fumana metsi, ke ne ke fuwa metsi a ditshila, ke nweswa metsi ha mmoho le matata le difariki letamong. Ke nna mang ya ka bang le tokelo ya hore tjhe ho ditokelo tsa batho ba bang. Nna ya neng a sa gone le ho fuwa ntlwana, nna ya neng a sebedisa thota, ke ne ke sebedisa lejwe le jwang jwalo ka pampiri ya ntlwaneng. Ke ne ke amohilwe seriti sa ka.
Ke nna mang ya kareng tjhe ho ditokelo tsa batho ba bang. Ke mang nna ya neng a pepala ngwana fates ha ke ne ithwetse, ke ne ke sa tsamae tliliniki, ke ne ke tholla ngwana fatshe mobung, ho ne ho sena le ngaka, ke ne ke nketswe ditokelo tsaka tsa bophelo bo botle.
Ho baneng ke tshwanela ho etsa dintho tsena ho batho ba bang? Ho baneng ke tshwanela ho kgetholla? Ho baneng ke tshwanetse ho hatella batho ba bang, ha molao theo wa rona o dumelletse hore motho emong le emong o na le ditokelo.
Sebui sa Palamente ha re ne re tsamaile, ntho e hlokolotsi e ileng ya hlaha ke hore, bana ba batho ba bong bo tshwanang ba nyalaneng, ba tla sotlakwa ka thobalana. Modulasetule le manyalong a tlwaelehileng bana ba rona ba ntse ba sotlakwa.
Ho na le bontate ba tswetseng bana, ba be ba boele hape ba robale le bona bana bao, hona jwale re ntse re nyalana re le bomme le ntate. Hona jwale re ntse re nyalana ka tsela ena e tlwaelehileng ho na le ntate mane Bethelem ya ileng a nka bana ba hae ba babedi a ba otla ka lejwe; a ba pakela ka sutukheising; a ba lahlela letamong. E ntse e le motswadi wa bona. Ebe phapang e kae he moo, ho tswa ho botho ba motho, re ke ke ra etsa dintho tse tjena.
Modulasetulo re na le Molaotheo wa rona, Molaotheo ona ha oa ngolwa ke ANC feela, o ngotswe ke Afrika Borwa ka ofela, ho kenyeleditse le bona ba hananang le ona ka jeno leen, e ne le le banka karolo ho ngolweng ha Molaotheo ona.
Re tlameha ho hlompha Molaotheo ona, le hona ho etsa bonnete ba hore oa sebetsa. Ke mosebetsi wa rona ho etsa bonnete ba hore Molaotheo oa sebetsa. Rona ba ANC le ba bang re utlwisisa hore kgethollo bathong ke ntho e jwang. Re phetse tlasa mahlasipa a kgethollo moo re neng re tshwantshwa le ditshwe ebile re bitswa megodutswane. Afrika Borwa ena, ke ya rona bohle, bohle ba dulang ho yona seriti, hlompho le ditokelo tsa bona di tshireletsehile. [Time expired.][Applause.]
Dr C P MULDER /
Ms S H NTOMBELA
Dr C P MULDER:
*** Language spoken has changed to Afrikaans ***
Geagte Mevrou die Huisvoorsitter, die agb lid Mtombela wat so pas gepraat het, het ’n lang betoog gelewer oor die werklikheid van mense met ’n ander seksuele oriëntasie wat in Suid-Afrika bestaan. Dit is ’n werklikheid en ons ontken dit nie, maar dit is nie waaroor dit vandag gaan nie. Dit gaan vandag oor die instelling van die huwelik en die werklikheid daar rondom. Hierdie wetsontwerp wat huwelike tussen mense van dieselfde geslag sal moontlik maak, is uiters omstrede. Niemand wil dit hê nie. Ook nie eens die meerderheid van die ANC se koukus nie. Die ANC moes in ’n besluit al sy lede forseer om vandag vir hierdie wet te stem en tog word dit deurgeforseer.
Die vraag kan gevra word: hoekom is dit die geval? Hoekom? Omdat die Woord van God nie die hoogste gesag in hierdie land is nie, maar wel die mensgemaakte grondwet. Die grondwet behoort daar te wees om die gemeenskap te dien. Dit kan nooit korrek wees dat die grondwet kan verwag dat die gemeenskap sy eie waardes moet verloën nie.
*** Language spoken has changed to English ***
A constitution and its practical implications in law should take the values of the community it serves into account. Exercising rights should not go against the value system of society, because if it does, it estranges the constitution from the community.
*** Language spoken has changed to Afrikaans ***
Dit is presies wat hier gebeur. Hierdie saak druis in teen die waardestelsel van die breë Suid-Afrikaanse gemeenskap.
*** Language spoken has changed to English ***
The strong Christian nature of the South African community and the influence of Islam and the traditional African religions in our communities are all strongly opposed to the legitimising of marriages between persons of the same gender. However, this government does not want to listen to the people and what they are saying.
Die Christelike gemeenskap is daarteen. Die Moslemgemeenskap is daarteen. Die tradisionele leiers is daarteen en tog word dit deur geforseer.
Marriage is an institution created by God between a man and a woman. That is why God created Adam and Eve and not Adam and Steve. We will vote against this Bill for that reason. [Interjections.]
THE MINISTER OF DEFENCE / END OF TAKE
Sotho/rm / Mlc afr+ eng
Dr C P MULDER
The MINISTER OF DEFENCE: Madam Chairperson, hon members, I think it is important that we place the Bill in its proper historical context. The roots of this Bill lie in the pronouncements of our people over very many years and decades of struggle. In particular, the roots of this Bill lie in the declaration our people made at the Congress of the People in 1955. In the preamble of the Freedom Charter, our people declared, and I quote:
Only a democratic state based on the will of all the people can secure to all their birthright without distinction of colour, race, sex or belief.
It was this declaration amongst others, which guided us in drafting the present democratic national Constitution, hailed throughout the world as one of the most advanced, at this time.
The Constitution itself does not prevaricate on this question, for it says that in Chapter 2, section 9, subsection 3. We ourselves declare to this House that:
The state may not unfairly discriminate directly and indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
What the Constitutional Court did was not to impose on us the task to make a new law. Rather, the Constitutional Court drew our attention to the fact that we have granted the right to all South African citizens to choose who to marry or take as a life partner. That right is already granted to the citizens of our country.
The Constitutional Court reminded us that, in this regard, we have not as yet delivered in relation to those who prefer same-sex partners for life. They were not saying: Grant new rights. They said: You have already granted this right, but deliver on that right in relation to those who prefer same-sex partners. They said that we had not done so because we had not aligned the law with the basic law of the country, the Constitution.
The question before us, therefore, is not whether same-sex marriages or civil unions are right or not. That’s not the question. The question is whether we suppress those in our society who prefer same-sex partners or not. That is the challenge. Are we going to suppress them? [Interjections.]
At this time, we are bound to fulfil the promises of democracy that we made to the people of our country, especially during the long, hard years of struggle. Are we going to suppress this so-called minority, or are we going to let these people, like ourselves, enjoy the privilege of choosing who will be their life partners or not?
By the way, voting for this Bill is not advocating. We are not being asked to advocate same-sex marriages. We are being asked to grant this right, so if you vote for this, you only deliver, you only grant the right to those concerned; you will continue to live your life as you choose, but let’s grant the right to those who also must exercise the same right.
We have no need indeed to preserve for ourselves, purely because of the majority of our numbers, the exclusive right of marriage as recognisable in law, while we deny others the same right. Why would we want to do that?
I take this opportunity to remind the House, to remind those who know, and inform those who do not know, that in the long and arduous struggle for democracy, very many men and women of homosexual and lesbian orientation joined the ranks of the liberation and democratic forces. [Interjections.] Some went into exile ... [Applause.] Some went into exile with the movement, yet others went into the prisons of the country with us. They accepted long prison sentences. Some stood with us, ready to face death sentences.
Indeed, as we stand here today, we can recall names and graves of comrades who resisted and refused to cave in in the face of probable death sentences. How then can we live with the reality that we should enjoy rights that we fought together with for, side-by-side, and deny them that?
Today, as we reap the fruits of that democracy, it is only right that they must be afforded similar space in the sunshine of our democracy. We do them no favour, but reward their efforts in the same way that our own efforts are being rewarded. I have to remind the House that, after all, culture is not static. There was a time when voting was only for men. It was rejected that women should vote. There was a time when society would not accept that women should vote.
Yet, in the 1890s, New Zealand led the world in granting her women the right to vote. Then, in 1918, Soviet Russia followed suit, and then, in 1921, Great Britain followed. In 1924, the Soviet Union extended the right to women. In this country, in 1930, white women, for the first time, were allowed to vote.
Culture is not static. There was a time when you could not even talk about the possibility of a woman becoming a church minister. Today, denominations, one after another, are accepting that women may indeed become church leaders and church ministers. [Applause.]
Oh yes, there was a time when being a homosexual meant imprisonment. Just by being a homosexual, you got locked up in jail. Oscar Wilde, in Victorian England, was locked up in jail, not for any crime, but simply because he declared his homosexuality. Today, Great Britain is a different society, because culture is not static.
This country cannot afford to continue to be a prisoner of the backward, timeworn prejudices, which have not basis. The time has come that we as this society, as this Parliament, on behalf of our nation, must lead.
I therefore wish to urge members of the House to look past the prejudices of our time, and grant this right to those who have been pleading with us for so long now so that we may bequeath to succeeding generations a society democratic and more tolerant than the one that was handed down to us by those who preceded us. I thank you. [Applause.]
Mr B E PULE / END OF TAKE
THE MINISTER OF DEFENCE
Mr B E PULE: Madam Chair, the UCDP will not align itself with any institution that seeks to negate that marriage is between male and female. The argument that the Constitution calls for same-sex marriages is lame, because that very same Constitution is a result of men and women in this very same Chamber, whereas the Bible has stood the test of time as the inspired word of God.
It is a sad day in the history of this country that such bad legislation has to be passed in our time. What is the result of a union that does not procreate? The legislation is bad in the sense that it allows 18-year-olds to enter into a union even without the authority of their families.
Civil unions are a direct negation of attempts at moral regeneration. We should expect that with civil unions succeeding, we will be legalising sodomy, because the impression we are being given here is that the struggle was for sodomy and not for freedom. [Interjections.] Otherwise, how are these men going to show their marital status? [Interjections.]
The UCDP pities some members of this House who will vote for this Bill much against their will, conscience and religion. Poor colleagues will be voting through fear and not from a sense of justice. The UCDP will always look back and curse the day on which this legislation was passed. [Interjections.] The UCDP will not and will never support the Civil Union Bill. [Interjections.]
The HOUSE CHAIRPERSON (Ms C-S Botha): Thank you. Order, members! Order! Order!
Dr S E M PHEKO
Mr B E PULE
Dr S E M PHEKO: Chairperson, the traditional institution of a union between a man and a woman for procreation must be protected. It cannot be equated with same-sex unions. Same-sex marriages are so repugnant that only four countries in the whole world have legalised them. Do we want our country to be the fifth in the world and the first in Africa in this mess? [Interjections.] Which country in Africa will accept leadership from a country that suffers from Eurocentric eccentricity? Only those who have sold their souls to cultural imperialism will support this obscenity.
It is hypocritical in the extreme to talk of moral regeneration and African Renaissance and then to turn around and surrender to this cultural aberration. It is no excuse that it is in the Constitution. It should never have been there in the first place.
The issues in the country are landlessness, inhumane squatting, unaffordable education, unemployment, lack of good health care and the eradication of poverty. These are the things that people fought for.
This Bill needed a national referendum if this Parliament respects the people of this country. A large body of scientific researchers has established that there is no scientific basis for a homosexual gene. [Interjections.] [Izwe lethu.] [Our land.] [Time expired.]
Mr J B SIBANYONI
Dr S E M PHEKO
Mr J B SIBANYONI: Hon Chairperson, members of the House ...
... kiledibheyidi, ngifuna ukuqala khulu khulu ngehlangothini lomthetho. Lapho ngithi khona: Uthini umthetho? AbeSuthu bathi: Molao o reng? Amakhuwa wona athi: Wat sê die wet? [What does the law say?]
The Constitutional Court ruled that the definition of marriage under the common law and the marriage formula in the Marriage Act of 1961 contradict the Constitution and are invalid to the extent that they fail to provide the means in terms of which same-sex couples could enjoy the status and benefits together with the responsibilities that marriage accorded to heterosexual couples. In this respect, the Marriage Act and the common law definition of marriage are in conflict with the Constitution and violate the rights enshrined in the Freedom Charter and our Bill of Rights.
I will not go into detail regarding the Freedom Charter because the hon Lekota has already done that. But maybe I should immediately say that there are those who are saying that we should consider amending the Constitution and taking away the sexual orientation rights. To them I would like to say that that will not be enough, because you would have to go further than the Constitution and look at the Freedom Charter and try to amend the charter, which was signed in 1956 at which there were 2 808 delegates from all corners of the country. They came from Sekhukhune, from the Cape, from Mafikeng and the like, and they said that “All shall be equal before the law” and that all discriminatory laws shall be abolished.
The quote cautioned providing a remedy to the effect that Parliament should avoid 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 reproduce new forms of marginalisation. Historically, the concept of separate but equal served as a threadbare cloak for covering distaste or repudiation by those in power of the group subjected to segregation.
The hon Lekota has elaborated on the fact that when you are in power, you should not oppress or suppress those who are not in power or who are in the minority. Judge Sachs held that whatever legislative remedy was chosen must be as generous and accepting towards same-sex couples as it was to heterosexual couples, both in terms of the intangibles and the tangibles involved, and that appropriate sensitivity must be shown to providing a remedy that was truly and manifestly respectful of the dignity of same-sex couples.
I submit that the present Bill caters for this. Parliament, as we know, has until 1 December to correct this defect. Also, the Constitutional Court has said that if Parliament fails to do so, the word “spouse” will be read as being added to the Marriage Act after the words “wife” or “husband” in order that the defect is cured.
Now, in responding to the Constitutional Court judgment, Parliament enacted this piece of legislation that goes a long way towards confirming our constitutional values of equality, dignity and the advancement of human rights and freedoms.
The Bill defines a civil union as the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership in accordance with the procedures prescribed in this Act to the exclusion, while it lasts, of all others. The effect of this is that the Civil Union Bill is open to homosexuals, heterosexuals and intersex persons. Intersex refers to persons with ambiguous genitalia and who are neither male nor female. The Marriage Act excludes such persons from marriage.
The Civil Union Bill sets the age of getting married at 18 years. This will be in line with the Children’s Act when it comes into operation. The age of majority will be 18 years. So, too, is the case with the age at which one can become a voter.
The Marriage Act provides for females of 12 years and males of 16 years to get married with the Minister’s consent. But this Civil Union Bill is saying everybody will get married at the age of 18 years.
During the era of the parliamentary state in South Africa, there was what was known as a constitutional crisis. The parliament at that time wanted to take away the rights of coloureds as voters. When the court declared that law invalid, parliament convened and created what they called a high court of parliament. In that court they appointed people as judges who did not necessarily have legal qualifications.
The court also declared that high court of parliament not to be a court of law, but to be parliament operating under another name. I am supporting my argument by saying: let us not do that. Instead, we are going to be affirming or giving rights to the people who do not have rights.
Ngifuna ukutjho ukuthi thina, njengabantu ababuya emtlhagweni we-apartheid, umtlhago nobuhlungu siwazi khulu. Akusingithi godu esingajika sifune ukugandelela abanye abantu sibakhuphele ngaphandle. Umhlonitjhwa ukhulumile bonyana abantu ebebagandelelwa ngaphandle, bagandelelwa ngilabo ababaphetheko begade bathwele budisi kangangani. U-Callian uthi thina esimalunga we-ANC bazosigandelela ukuthi sivowude nofana sikhethe namhlanjesi. Mina-ke ngithi sithabe khulu namhlanjesi ngombana sithole ithuba lokobana sivowude; sinikele abantu amalungelo lawo ebegade banganawo; sibe babantu abanikela abantu amalungelo lapha eSewula Afrika. Abanye bavika ngeBhayibheli. Ngifuna ukutjho ukuthi ...
... marriage is an institution recognised by the state in South Africa. Marriage, in terms of the Marriage Act, is a civil act. It is not a religious act.
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon member, your time has expired.
Mr J B SIBANYONI: I want to say that the ANC that lives and leads, supports this Bill. [Applause.]
Mr S SIMMONS
Mr J B SIBANYONI
Mr S SIMMONS: Madam Chair, the UPSA will not support this Bill. [Interjections.] The nature and content of this Bill clearly reflects that this institution, namely Parliament, is abandoning the essence of its primary function. This primary function is not just one of lawmaking, but rather of making laws that reflect the norms and values of society.
The Civil Union Bill, in its very essence, represents everything against the norms and values of our society at large. The acceptance of this Bill as an Act would be a failure of this Parliament’s objective to give a true enunciation of society’s values. The sensitive nature of this matter should have given government the opportunity to test this matter, together with the death penalty and affirmative action, by means of a referendum, precisely to test the will of the people.
The desire to have such an ethically challenged law is the wish of only a portion of society, minute in relation to the overwhelming majority of South Africans that finds it undesirable. I thank you. [Interjections.] [Time expired.]
Mr M R SIKAKANE
Mr S SIMMONS
Mr M R SIKAKANE: Chairperson, this is one Bill in which we should have had the Chair saying, “As there is no speakers’ list, the Bill will be sent to the President for concurrence,” or something like that. [Applause.] I don’t know what this is all about, because are you here to suppress other people, to take away their rights? I can’t understand you. What are you talking about? I just can’t believe you.
I take the podium as a disadvantaged person in the sense that I don’t know what happens with technology. This is not the first time that the Minister of Defence has handicapped me. I used to play soccer and I was a star. I’m sorry to tell you that. I played in Durban for Zulu Royals. I was called “Terror”. [Applause.] And, as he is younger than me, when he came into the picture playing for Claremont Home Defenders - we were playing at Msizini – just because Claremont Home Defenders wanted him to be seen like terror, they nicknamed him “Terror”. So all the time he has been following me. [Laughter.]
So, this time I wrote my speech, and the title is: Rights. Now I see he has taken everything – every word – I have written in my speech. [Laughter.] I’m really, really disadvantaged. I don’t know what happens with technology today. I’m not sure.
I want to highlight two things. I won’t bore you now by going back to what my namesake has said. I grew up in Empangeni in the rural area. When I opened my eyes, our neighbour – I’m telling the IFP – was Mulondo. This baba was a huge man, bearded like myself. He used to dress up like this, and then take a doek and put it on his head and put on a pinafore. He was staying with a man, and this was in my youth. When I talk about my youth, you must know I’m talking about the 1940s. He was staying with a man in the rural area, but, for God’ sake, the community respected and accepted that situation. [Applause.] There was no problem whatsoever.
In the early 1960s when I started working, I worked for the Department of Bantu Administration in KwaMuhle, Durban. I went with Durban boy – the ANC used to call him “Durban boy” – Johnny Makhatini. He stayed in North Street. Black people could not stay in town, but he stayed in the back yard.
One day I was with him in his house and we were sitting there talking. There were two guys there I didn’t know – with ... [Inaudible.] ... Ngoma, who was the leader of the youth league. The next thing I saw a curtain open – there was no door leading to the bedroom – and there tata Sulu came out. That was at the time when they wanted tata Sulu dead or alive. He was hiding in Johnny Makhatini’s room in North Street. He started saying to these guys: Hey, what are you doing here? Didn’t I tell you to go and do one, two, three? They jumped up and left. Afterwards, Johnny told me that they were gay, but there were doing underground work for the ANC. They had been part of us in the struggle. So, what are you saying today? [Applause.]
So, just to highlight my speech now ... [Laughter.] When we went out to these public hearings, there was the outcry of “Change the Constitution; call for a referendum”. All the time I was morose, feeling so out of place. I asked myself that if people were saying: “Call for a referendum; change the Constitution”, what does that mean? Does that mean that they want us to change the Constitution so that we suppress other people? Because, in short, that is what they were saying with their call for “change the Constitution; call for a referendum”. Are you sitting here, wanting to suppress other people’s rights? No, people, you can’t say that.
I won’t give my speech now; Terror, my namesake, has said everything. The other thing I want to highlight is that when you say “Change the Constitution” and so forth, what does that mean? Are you telling me you are the first people sitting here to say: “This is our success; today I’m going to have a very good, peaceful sleep”? Because I would say to myself this is one time I have made a contribution because I have liberated other people, I have freed them; I have given them equal rights just like everybody else. So, this is a good time for members to pass and endorse this Bill. [Interjections.] And, understand one thing: when the Constitutional Court said we must amend, what it was saying to us was: “Parliament, you have repealed all discriminatory laws, but I think you have overlooked this one. Just go and repeal this law so that everybody is equal.” So, it is not actually the court that told us what to do. It reminded us of our duty, of our function, to change and repeal this discriminatory law.
The other thing that bothered me during the hearings was people saying, “Don’t use a certain word like ‘marriage’.” I was saying to people, “Where do you get the right to say to other people ‘don’t use this word’?” No one seated here has the right to say “The word ‘marriage’ belongs to me; it’s my right. Don’t use it.” Where do you get the right to say, “This word belongs to us”, or “to me” and “You mustn’t use the word ‘marriage’”?
I don’t want to say it’s all crazy, using that. A very important part of this is that today we are fulfilling the requirements of the Freedom Charter. When you look at it all, all of our struggling, arrested for freedom, arrested for nondiscrimination, arrested for uplifting the lives of other people – how on earth could we think, in all of those respects, of not allowing and giving other people their rights? We are fulfilling our document that was crafted and done by the ANC. That is all we are supposed to do today.
I should thank you that finally we have now honoured the wishes and the aspirations of other people by voting solidly for this Bill. I thank you, Chairperson. [Applause.]
C/W: Mr L M GREEN / END OF TAKE
Mr J B SIBANYONI:
Mr L M GREEN: Chairperson, the FD will never support legislation that undermines the Word of God. The FD rejects the Civil Union Bill because we believe it undermines biblical values, especially the sanctity of marriage between a man and a woman ordained by God.
Michael Cassidy of the Marriage Alliance of South Africa writes in a leaflet entitled Same Sex Marriage, why South Africa should say no to this legislation:
I imagine some 98% of South Africans believe we should say no to the same-sex marriage.
Let me add that I do not know of one Islamic country throughout the world that would support same-sex civil unions. Most Islamic countries view same-sex unions as the immoral decadents of the worst, and they are right in this regard.
Why do committed Christians, Muslims and Jews collectively and unequivocally reject same-sex relations, let alone civil unions? According to the Bible, the Koran and Torah, homosexuality and lesbianism are an abomination in sight of God. The versions of the creature He made in His own image. [Time Expired.]
Mr L M GREEN: Chairperson, I have two minutes and I only used one. [Interjections.] The Bible says in the book of Leviticus 18:22 that homosexuality is absolutely forbidden for it is an abomination.
God has some monopoly on human rights. He created us and he knows what is good for us. He defines what is right and wrong, not culture nor man-made constitutions. God destroyed Sodom and Gomorrah because of the sin of homosexuality.
In the New Testament God equally condemns homosexuality and same-sex unions, especially in Romans 1:26, where the Bible says that, that is why God let go of them and let them do all these things so that even their women turn against God’s natural plan for them and indulge in sexual sin with each other.
As believers we must decide today whether we will accept and support God’s Word or whether we will support the sexual orientation clause in the Constitution. Our decision is quite; we believe that God is greater than our Constitution and our courts and that His Word is the final authority. The FD therefore rejects the Civil Union Bill with the contempt it deserves. [Applause.]
Mr M SWART
Mr L M GREEN
Mr M SWART: Chairperson, the Constitutional Court recently declared two Acts of Parliament unconstitutional due to a lack of public consultation and participation. The Portfolio Committee on Home Affairs however went to great lengths and great expense to obtain the views of the public on the Civil Union Bill being considered here today.
Interested parties were provided an opportunity to present Parliament with written and oral submission and thousands of submissions were in fact received.
Public hearings were mostly held in rural areas and it became abundantly clear that the majority of citizens preferred that reference to the words “marriage” and “same-sex” be deleted from the Bill.
After conducting public hearings the Portfolio Committee held a series of committee meetings at which very little was achieved. One of these meetings was scheduled for 6 November 2006 in which members received scant notice of the meeting. Diaries had to be rearranged and appointments called to attend the meeting.
An hour before the scheduled time, members were advised that the meeting is cancelled. No explanation for the cancellation of the meeting or an apology to members has been forthcoming. It became abundantly clear then that then ANC had not yet clarified their mandate. Committee members were asked to put their mandates before the committee, which they did, but no input came from the ANC.
Only two days later the ANC came up with an amended Bill now before Parliament. The Bill was steamrolled through the committee with no discussion being allowed and in totally unprocedural and undemocratic manner it was virtual disregard of the views of the
According to press reports the chairperson of the portfolio committee now states that the Bill should be regarded as an interim measure. Should this be true, it would probably have been easier and cheaper to allow the Constitutional Court judgement to take its fate, i.e., by inserting the word “spouse” in the Marriage Act.
It would have achieved the same result as this new Bill and it could have been amended in time to come. By just having two Bills there is discrimination. The Bill is therefore unconstitutional; it would attract constitutional action and government should not be surprised if they land up with egg on their face once more.
The DEPUTY MINISTER OF JUSTICE
Mr M SWART
The DEPUTY MINISTER OF JUSTICE : Chairperson, hon members, ladies and gentlemen, when I was growing up in a Christian home I was told that God is love. I was told that religion is about tolerance, inclusivity and love.
I am ashamed to be South African and to have experienced what people had to experience by passing this Bill and by some of the things that were said in this House.
If God is the God of love and you want to come and profess that God to us then show us his loving face. That is what you should be doing. [Applause]
Jammer, het ek nie vir jou gewys nie.
I think the second issue is that the ANC has very clearly stated its position on this. The Constitution is very clear; we are not doing any favours to gay people here. We are not giving them little pieces of goodwill. We are here dealing with what we have decided at least 12 years ago when the equality clause was passed, which said we should not discriminate on the basis of sex, sexual orientation or marital status. That is what your Constitution says.
Today some of the people that helped pass that Constitution sit here with wide eyes and say: But we could never have meant that. What on earth do you think you meant, [Laughter.] if you said you are not going to discriminate on the basis of marital and on the basis of sexual orientation?
So, the ANC position which comes from long before the Constitution, which has been entrenched to the Constitution, is that these are rights that a group that has been marginalised in society are entitled to and all that we are doing is making sure that we bring an alignment.
Some people have said here that this has happened the other day. I would remind you that when the Fourie judgment was given, the ANC already made a statement on this matter. On 1 December 2005, the ANC had the following to say about the Fourie judgment:
The ANC reaffirms its view that citizens should not be discriminated against on the basis of sexual orientation and that the Constitution’s legal system and institutions of state have a responsibility to uphold that basic human right.
Today’s ruling, like others before it, is an important step forward in aligning the laws of the country with the rights and freedoms contained in the South African Constitution. So, the issue is not whether we should give rights. The issue is how we should do that, and I will get back to that in a minute.
The second issue, we have some luminaries here, the hon Kaylan being one and the hon Greyling. They tell us that it is definitely going to be unconstitutional to allow people to not solemnise marriages on the basis of their conscience. Now, I see there is a law adviser who also said this in the newspaper. I find this stunning, because all you had to do is to go and read the judgment, which deals with this issue.
So, it shows me that all those members and the legal adviser didn’t read it. Let me remind you what Judge Sachs said on dealing with this issue about conscience. It says in paragraph 159:
The principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in the violation of their conscience.
It goes on to quote the Christian education case where it ends off by saying:
At the same time the state should wherever reasonably possible seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful to the law.
The judgment dealt with it. It says:
Do not allow such people to be forced to do against their conscience.
Now, we are told that the Constitutional Court will find that to be unconstitutional. I think the issue here is simply this, the Constitutional Court in its court order did two things, the substance of marriages is only dealt with in two places; in the common law, the definition of marriage and in the formula for marriage is the substance of marriage dealt with.
In then rest of the Marriage Act it is just the procedures and processes how you do that. Those two substantive issues the court found to be unconstitutional, both the definition of marriage and the formula to marriage.
Now, the issue for us in government was not whether we would allow this or not, it was how to do it best. The problem with amending the Marriage Act is that the Marriage Act we all know really catered for Christian marriages of a certain kind. By doing so there were certain unforeseen circumstances that we are very worried about. For example, the Act, as it stands today, allows girls between 15 and 21 to marry. It allows girls under 15 to marry if they have the permission of the minister to do so.
So, if we were to amend the Marriage Act the consequence of that is that we would have had that problem of children at very young and tender ages getting involved in gay marriages or trying to do so and creating further controversy in society. [Time Expired.]
There were other two unforeseen circumstances. I do not have time to deal with them, but we will do so at a later occasion. Thank you very much. [Applause.]
THE MINISTER OF HOME AFFAIRS / END OF TAKE JH
THE DEPUTY MINISTER OF JUSTICE
The MINISTER OF HOME AFFAIRS: Madam Chair, I just want to correct the fact that some people have made comments which I really think are not correct, and we need to set the record straight.
It is not true that we are dealing here with a new piece of legislation. I think what we are dealing with here is the same Bill which was presented before the portfolio committee or before Parliament.
What has happened is that, on the basis of what has emerged from the public participation process and from the consultation with a variety of stakeholders, certain amendments have been made and that’s what we are dealing with here. So, there is no new piece of legislation.
If I may touch on just two of those, most stakeholders actually made the point that there is a need to deal with the issue of domestic partnerships at a later date, because we had no constitutional deadline to meet. That has been removed from this piece of legislation.
The second issue was the issue of being separate but equal. In spite of trying our best to meet the two principles which were made by the Constitutional Court and also to look at the rights, status, benefits and the responsibilities to give all those to same-sex couples in this particular piece of legislation, people still maintained that this was a separate but equal route. The religious groupings were raising the issue of, for instance, the fact about even the mere mention of same-sex.
To deal with the issue of separate but equal, we then had to actually make sure that this Bill did not only cater for same-sex couples but also for heterosexual couples who want to go the civil partnership route. That’s what we have done here.
So, it is not a new piece, but one area which remains contentious, which I believe is still in the public discourse and there is a need to engage on, is the whole issue of marriage. There has been insistence on that from quite a number of stakeholders that there should be no reference to marriage at all in this piece of legislation. That is the one issue which is the bone of contention here.
What we have been advised is that we then have to engage in a discussion as whether having marriage in this piece of legislation is a legal necessity or a legal nicety. That’s what somebody said. It was said, in fact, that it is a legal necessity because what we are likely be confronted with is a ruling against the Bill, that it is unconstitutional even before people have even looked at this piece of legislation.
I am not sure if in this debate, by rejecting this piece of legislation, people are suggesting that perhaps government should have allowed the courts to then amend the Marriage Act on 1 December.
We believe we knew when we brought about this Civil Union Bill that this is not a matter society is going to agree on. That society is polarised. We are a divided society on this matter, but we have a responsibility of conducting continuous public education, of actually talking to people about the rights which have been provided by this very Constitution which we all passed in 1996; which we provided to all the people of South Africa. We now have a responsibility to deliver the promise contained, amongst others, in that Constitution and that Bill of Rights and that’s what we are trying to provide here.
Now I just thought that we needed to set the records straight that it is not true that we are bringing in a new piece of legislation.
However, people in fact – I have actually seen the submissions of all the parties, including the submission from the DA. One of the proposals you made two weeks or a week ago before this matter was finalised was the issue of actually ensuring that this Bill does not just cater for same-sex partnerships but also is inclusive and therefore you have two consenting adults allowed to go the route of a civil union if they so wish. [Interjections.] You did say that.
But, secondly, you yourselves proposed in your submissions that the entire clause on domestic partnerships should be removed. That is exactly what has happened here; it has been removed.
The issue revolves around marriage, and I think it is the responsibility of all parties, not just the opposition party or the ANC. Our responsibility as leadership or representatives is to continuously engage on the issue because of course some of the people are going to be voting for the Bill because they have obligation to do so to provide these rights, not necessarily because people may be agree about this particular issue.
The last thing I want to say is, I think we all have a responsibility to step back, remove ourselves from the situation and look at the rights of a particular grouping of people here in this country, which does exist. It does exist and you cannot wish them away. There is no dustbin where you are going to collect a particular group of people and throw them into. We have a responsibility to society. Thank you. [Applause.]
Question put: That the Bill be read a second time.
The House divided.
The House divided.
[TAKE IN FROM MINUTES]
Mr J P I BLANCHÉ: Madam Chair, we seem to have a fault in some of the equipment. Would it have been registered or not?
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon Blanché, will you come to the Table, and they can record your vote here please?
Question agreed to.
Bill accordingly read a second time.
END OF TAKE