Civil Union Amendment Act, 2020

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Civil Union Amendment Act, 2020
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  • 3 other official names:
  • uMthethosivivinywa wokuShadiswa kwaBantu bobuLili obuFanayo (Zulu)
  • uMthetho oYilwayo woMtshato waBantu beSini esiFanayo (Xhosa)
  • Wetsontwerp op Burgerlike Verbintenisse (Afrikaans)
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Parliament of South Africa
  • Act to amend the Civil Union Act, 2006, by repealing a section; and to provide for matters connected therewith.
CitationAct No. 8 of 2020
Territorial extent South Africa
Passed by National Assembly
Passed6 December 2018
Passed by National Council of Provinces
Passed1 July 2020
Assented to20 October 2020
Commenced22 October 2020
Legislative history
First chamber: National Assembly
Bill titleCivil Union Amendment Bill
Bill citationB11—2018
Introduced by Deidre Carter
Introduced14 May 2018
Amends
Civil Union Act, 2006
Status: In force

The Civil Union Amendment Act, 2020 is an act of the Parliament of South Africa which repealed section 6 of the Civil Union Act, 2006, a section which had allowed civil marriage officers to opt out of solemnising same-sex marriages on the grounds of conscience, religion or belief.

The Civil Union Act was enacted in 2006 to legalise same-sex marriage in South Africa. Section 6 of the act provided that:

A marriage officer, other than a marriage officer referred to in section 5, may in writing inform the Minister [of Home Affairs] 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.

This provision did not apply to religious marriage officers (those "referred to in section 5") because they were in any case not obliged to solemnise a marriage that would violate the doctrines of their religion. It applied only to those who were marriage officers by view of their position in the government—mainly magistrates and officials of the Department of Home Affairs.

Several constitutional scholars argued that this provision was unconstitutional, calling it "state-sanctioned discrimination" in violation of the right to equality. [1] [2] In July 2017, more than a decade after same-sex marriage was legalised in South Africa, LGBT newspaper Mambaonline reported that 421 (out of 1,130) marriage officers in South Africa were exempt from performing same-sex marriages or civil partnerships, [3] mostly in the Eastern Cape, the Free State and Mpumalanga. Minister of Home Affairs Malusi Gigaba announced that the Department of Home Affairs had undertaken several measures to resolve the issue, including increasing sensitisation of Home Affairs officials and ensuring that same-sex couples are treated respectfully and according to policies and laws by staff. [4] [5]

In May 2017, MP Deidre Carter asked Minister of Home Affairs Hlengiwe Mkhize whether she would be willing to introduce legislation to repeal the objection provisions from the Civil Union Act. Mkhize opposed, saying that "the Civil Union Act is clear in that marriage officers will not be compelled to solemnise such civil unions". She reiterated Gigaba's statement about sensitising marriage officers. [6]

In January 2018, Carter introduced the Civil Union Amendment Bill to repeal the objection provisions. She quoted Chapter 10 of the South African Constitution, which states that "services must be provided impartially, fairly, equitably and without bias", when lodging the bill with the Office of the Speaker of the National Assembly. [7] Carter presented her bill to the Portfolio Committee on Home Affairs on 15 August. Later that day, all four major political parties (the African National Congress, the Democratic Alliance, the Economic Freedom Fighters, and the Inkatha Freedom Party) announced their support for the bill. Supporters of the bill have pointed to a number of same-sex couples who were turned away when applying to marry, including a high-profile case of a couple in oThongathi, KwaZulu-Natal who were called derogoratory names when turned away. [8] [9]

In November 2018, the Portfolio Committee on Home Affairs unanimously accepted the bill with some amendments. One of these amendments allows officials who previously did not marry same-sex couples to continue doing so for two years. This would give the Ministry of Home Affairs time to implement the new policy. New officials, however, cannot opt out at all for any time. If a branch has an official opting out for the two-year period, they must have another official available who can perform the marriage. [10] [11] The bill passed the National Assembly on 6 December 2018, [12] [13] [14] with support from all parties expect for the African Christian Democratic Party, [15] the National Freedom Party and the African Independent Congress. [16] The National Council of Provinces approved the legislation on 1 July 2020 by a 33–5 vote. [17] [18] It was signed into law by President Cyril Ramaphosa on 22 October 2020.

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Same-sex marriage has been legal in South Africa since the Civil Union Act, 2006 came into force on 30 November 2006. The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes. On 14 November 2006, the National Assembly passed a law allowing same-sex couples to legally solemnise their union 229 to 41, which was subsequently approved by the National Council of Provinces on 28 November in a 36 to 11 vote, and the law came into effect two days later.

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References

  1. ↑ de Vos, Pierre (June 2008). "A judicial revolution? The court-led achievement of same-sex marriage in South Africa". Utrecht Law Review. 4 (2). Archived from the original on 15 April 2012. Retrieved 31 December 2011.
  2. ↑ Bonthuys, Elsje (2008). "Irrational accommodation: conscience, religion and same-sex marriages in South Africa". South African Law Journal. 123 (3). Archived from the original on 19 September 2016. Retrieved 31 December 2011.
  3. ↑ Home Affairs minister rejects call to amend discriminatory Civil Union Act Mambaonline
  4. ↑ "Shocking! Only 28% of Home Affairs offices will marry lesbian and gay couples". Mambaonline.com. 8 September 2016.
  5. ↑ "Home affairs officials' homophobic 'government-sanctioned discrimination' revealed". Mail & Guardian. 13 September 2016.
  6. ↑ Marriage (in)equality in SA | Home Affairs Minister responds to Mambaonline Mambaonline
  7. ↑ "SA's 'anti-gay' marriage officers: Fierce debate looms as MP demands change". News24. 27 January 2018. Archived from the original on 17 August 2018. Retrieved 23 October 2020.
  8. ↑ MPS overwhelmingly back move to amend discriminatory Civil Union Act, Mambaonline, 16 August 2018
  9. ↑ Parly supports proposed amendment to same-sex marriage law, Independent Online, 15 August 2018
  10. ↑ "LGBTIQ victory! Civil Union Amendment Bill adopted by parliamentary committee". Mambaonline. 28 November 2018.
  11. ↑ Crittenton, Anna (28 November 2018). "South African committee passes bill making it easier for same-sex couples to marry". Gay Star News. Archived from the original on 30 July 2019. Retrieved 23 October 2020.
  12. ↑ Mothapo, Moloto (6 December 2018). "National Assembly passes the Civil Union Amendment Bill". Parliament of the Republic of South Africa.
  13. ↑ Power, Shannon (6 December 2018). "South Africa passes historic vote to protect civil unions from homophobes". Gay Star News. Archived from the original on 30 July 2019. Retrieved 23 October 2020.
  14. ↑ "South Africa: Home Affairs Officials Can't Refuse to Solemnise Same-Sex Marriages After Bill Adopted". allafrica.com. 6 December 2018.
  15. ↑ ACDP slams same-sex marriage Bill, Independent Online, 17 August 2018
  16. ↑ Presence, Chantelle (6 December 2018). "Parliament passes bill changing same-sex marriage law". iol.co.za.
  17. ↑ Felix, Jason (2 July 2020). "Civil Union Amendment Bill: Marriage officers won't be allowed to turn down same-sex couples". news24.
  18. ↑ Ndenze, Babalo (1 July 2020). "More rights for same-sex couples as NCOP passed Civil Union Amendment Bill". Eyewitness News.
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