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6 October 2006

MARRIAGE ALLIANCE OF SOUTH AFRICA

SUBMISSION TO HOME AFFAIRS STANDING COMMITTEE


ON THE CIVIL UNION BILL

INTRODUCTION

The Marriage Alliance of South Africa is a Christian association representing a number of


denominations, churches and religious institutions that recognise and value the institution of
marriage in South Africa. We believe that the extension of the definition of marriage to
include same-sex couples would seriously undermine marriage and the family as the
fundamental building blocks of society.
We believe marriage is intended to be the life-long union of a man and a woman. We
believe the purpose of marriage is to –
• be the foundational institution of a stable and healthy society;
• establish the proper environment for procreation and nurture of godly offspring;
• define the parameters within which we can express our sexuality in a safe and
healthy relationship;
• reflect God’s love and concern for people and the church in the union of man and
woman in a covenantal relationship.

In our view, marriage as a life-long union of a man and a woman, and as the safe and proper
environment for raising children, is essential to secure a stable and healthy society. Children
should ideally be raised in families headed by both male and female parents. A mother and a
father each contribute vitally to the formation of their children’s character and the modeling of
family structure. This view of the family and of that, which is in the best interests of our
children, is universally recognised by most people and religions as divinely ordained, and as
a key to the moral structure of a healthy society. No same-sex relationship can be equivalent
to marriage, can compare to marriage, can fulfill the purposes of marriage, or should be
allowed to be called marriage.
We recognise that the Civil Union Bill is the government’s response to the order of the
Constitutional Court in Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v
Minister of Home Affairsa requiring Parliament to adopt, within a year, legislation enabling
same-sex couples to enjoy the same status, benefits and responsibilities that marriage
accords to heterosexual couples. We also note that the Bill aims to grant legal recognition to
civil and domestic partnerships and to regulate the legal consequences of these
relationships.
We cannot in good conscience support or endorse this Bill. As explained below, the
Bill seeks to legalise same-sex marriages, as well as certain other types of partnerships or
unions. Our view is that whatever arrangements the State makes to recognise such
partnerships or unions, it should not do so in a way that denigrates the institution of marriage
and the family. Our view is that by recognising all sorts of other relationships, even for
heterosexual couples, the Bill does exactly that: it undermines and devalues the institution of
marriage.
a
2006(1) SA 524 (CC); 2006 (3) BCLR 355 (CC)
MARRIAGE ALLIANCE OF SOUTH AFRICA
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Address: PO Box 13140, Cascades, 3202, KwaZulu-Natal, South Africa.

Page 1 of 10
We accordingly reiterate our view that a constitutional amendment defining marriage
as a voluntary union of a man and a woman is the only way in which Parliament can
effectively protect marriage – whatever other arrangements it may decide to make to
recognise or regulate other kinds of unions. We motivate our call for a constitutional
amendment in our concluding remarks.
Our submission in relation to the Bill addresses the following aspects:

1. Substantive concerns:
a. Protection of marriage officers (S 6)
b. Requirements for solemnisation and registration of civil partnerships (S 8),
with specific reference to the termination of civil partnerships by separation
c. Civil partnership formula (S 11)
d. Legal consequences of civil partnerships (S 13)
e. Registration of domestic partnerships (S 18)
f. Property regime (S 19)
g. Registered domestic partnership agreement (S 20)
h. Maintenance after death and intestate succession
i. Section 30 of the Bill
j. Determination of existence of unregistered domestic partnerships
k. Protection for partners in unregistered partnerships
l. The duty of support in unregistered partnerships
m. Customary spouses v unregistered partners: spousal benefits
n. intestate succession: unregistered partners

2. Procedural concerns
a. The public hearing process and the requirements of public participation,
b. Failure to refer Bill to National House of Traditional Leaders

1. SUBSTANTIVE CONCERNS

We cannot agree to it that same-sex partners be allowed to have their relationship


solemnised as a marriage (S 11). In our view the Bill moreover does not protect marriage
from being undermined by various other unions and partnerships. We are convinced that the
effect of making all these unions and partnerships possible will put the institution of marriage
under further pressure. In our view it even encourages heterosexual couples to live together
in a domestic partnership, rather than enter into marriage. Why do the drafters of the Bill find
it necessary to encourage people to live together outside of marriage at all? The Bill also
does nothing to promote the raising of children within a stable family environment headed by
both a father and mother who are joined together in the institution of marriage. Instead, under
this Bill, children run the risk of being exposed to all sorts of relationships that may very well
compromise their emotional and physical health and undermine their stable upbringing. We
have no doubt that this Bill will have immensely detrimental effects on our society. We now
turn to several specific aspects of the Bill to which we feel led to respond.

a. Protection of marriage officers (S 6)

The protection that the Bill provides to marriage officers who object to solemnising civil
partnerships on grounds of conscience is inadequate. The definition of “marriage officer” in
section 1 includes persons who have already been designated by the Minister under the
Marriage Act 25 of 1961. Section 6(1) requires marriage officers who object to solemnising
civil partnerships to inform the Minister of Home Affairs in writing of their objection on
grounds of conscience, failing which they can be compelled to solemnise a civil partnership.
MARRIAGE ALLIANCE OF SOUTH AFRICA
E-mail: xformt@mweb.co.za | Phone: +27 012 343 9488 | Fax: +27 12 343 5280
Address: PO Box 13140, Cascades, 3202, KwaZulu-Natal, South Africa.

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In other words, the Bill requires by default that every marriage officer (including a minister of
religion) solemnise a civil partnership. To avoid this default position, marriage officers who
object to solemnising civil partnerships must inform the Minister in writing of their objection
on grounds of conscience. In the absence of evidence before a court that the Minister has
received an objection of this nature, a minister of religion in a given case can be compelled
by court order to solemnise a civil partnership. This arrangement puts everybody, marriage
officers as well as couples, in a situation of potential embarrassment and pressure. A better
arrangement would be the opposite: to invite marriage officers prepared to solemnise civil
partnerships etc to apply for the appropriate designation. Couples may access the list of
names at the Department of Home Affairs before they approach a marriage officer.

b. Requirements for solemnisation and registration of civil partnerships (S 8)

Section 8(5) provides that “[a] civil partnership may only be registered by prospective civil
partners who would, apart from the fact that they are of the same sex, not be prohibited from
concluding a marriage.” It is unclear what this subsection means. We suppose the provision
refers to other impediments to marriage such as age and family relationship.
Apart from a death certificate, section 8(3) does not refer to a document that will
serve as proof that a previous civil partnership has been terminated by separation. The only
reference made to a document serving as proof that a previous relationship has been
terminated by separation is a “divorce order”. The only type of relationship that is currently
terminated by a divorce order is a marriage.
The absence of such reference suggests one of two things: 1) the drafters mistakenly
omitted to make reference to a termination document for civil partnerships; or 2) the drafters
believed that civil partnerships would, like marriages, be terminated by a divorce order. We
believe that the second scenario is the more plausible interpretation. This conclusion seems
to be supported by sections 16(3) and 13 of the Bill. Like section 8(3), section 16(3) does not
refer to a termination document for civil partnerships. Apart from a divorce order, the only
document that serves as proof that a previous relationship has been terminated by
separation is a termination certificate, which only applies to domestic partnerships (see
definition of “termination certificate”). If these sections are read with section 13, which
extends the legal consequences of a marriage to a civil partnership and includes a civil
partnership in the definition of marriage, then it becomes clear that the drafters believed that
a civil partnership should be terminated like a marriage – by a divorce order. But then the
Divorce Act 70 of 1979 would have to be amended, and yet it is not the subject of this law
reform process.

c. Civil partnership formula (S 11)

Section 11 provides prospective parties to a civil partnership with the option of solemnising
their union as a civil partnership or a marriage and expressly provides this option in a
formula. The name of this Bill and the textual content of chapter 2 as a whole (with the
exception of section 13) suggests that it does not regulate the institution of marriage, which is
regulated by the Marriage Act 25 of 1961, but aims to create a separate institution governed
by a different piece of legislation. The reference to “marriage” in the civil partnership formula
is therefore misleading because the Bill is not meant to regulate the institution of marriage. It
also amounts to a misuse of a word that is still understood to refer to a male/female union,
creating confusion about the nature of the institution.
The rights to equality and dignity do not require the homogenisation of behaviour and
of procedures regulating different relationships. The judgment of the Constitutional Court
does not necessarily require a solemnisation procedure that mimics the procedure in the
Marriage Act. A registration procedure like the one in section 18 would suffice.

MARRIAGE ALLIANCE OF SOUTH AFRICA


E-mail: xformt@mweb.co.za | Phone: +27 012 343 9488 | Fax: +27 12 343 5280
Address: PO Box 13140, Cascades, 3202, KwaZulu-Natal, South Africa.

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d. Legal consequences of civil partnerships (S 13)

Section 13 aims to make the legal consequences of marriage apply, “with such changes as
may be required by the context, to a civil partnership”. It aims to do this by redefining
“marriage” in any other law to include a civil partnership as defined in the Bill [section
13(2)(a)] and “husband, wife or spouse” in any other law to include a civil partner as defined
in the Bill [section 13(2)(a)]. The reference to “any other law” includes statute and case law.
Firstly, like the civil partnership formula in section 11, this section creates confusion
about whether the Bill regulates the institution of marriage or aims to create a separate
institution governed by separate legislation. The title of the Bill and the textual content of
chapter 2 suggest that it aims to regulate a separate institution. If that is the case, then every
reference to the institution of marriage should be removed from this Bill. We would also
suggest that persons who officiate the contracting of civil partnerships not be referred to as
“marriage officers”.
If, however, the Bill does aim to regulate the institution of marriage then, apart from
our textual comments, this raises the following concerns:

• In effect, the section amends the meanings of the words “marriage”, “husband”,
“wife” and “spouse” in every existing piece of legislation containing them to include,
subject to context, same-sex unions. In Fourie v Minister of Home Affairs,b the
Constitutional Court noted that there were “at least 44 Acts of Parliament in which
reference is made to ‘husband’ and/or ‘wife’ either in the body of the Act or in the
regulations to the Act”. (If one includes legislative references to “marriage”, then
there are statutes that are certainly more affected.)c However, in one section, and
without any consideration of its implications for these other laws, these words are
amended in these statutes. Such amendments are improper. The words “marriage”,
“husband”, “wife” and “spouse” in every affected statute will have to be reconsidered
in order to determine the impact of this sweeping change.
.
• The section contradicts the very judgment that it aims to fulfil. In the Supreme Court
of Appeal judgment, the majority decided that the words “husband and/or wife” could
not be read as “spouse” (as the minority judgment had held) because of the different
‘nature’ of these words.d They preferred the remedy of reading-in. The judgments of
Sachs J and O’ Regan J do not contradict or challenge this holding, but rather
confirm it as they also preferred the remedy of reading-in. For the same reason,
same-sex couples in a civil partnership cannot be included in references to “husband
and/or wife”- as section 13(2)(b) attempts to do, because of the different nature of
these words, even taking context into account.

• If the Bill becomes an Act, the effect of this section will be that the Marriage Act 25 of
1961 will be affected, regardless of the express exception of it. That will be so
because the word “marriage” in this Act would have to include same-sex couples in a
civil partnership. The combined effect of sections 11 and 13 would result in the
amendment of the Marriage Act.

e. Registration of domestic partnerships (S 18)

There is no majority age limit for persons desiring to register their relationship as a domestic
partnership [no reference to “adult” in section 18(1)]. The only limit is in section 16(4).
b
2003 (5) SA 301 (CC)
c
ibid footnote 19
d
Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA); 2005 (3) BCLR
241 (SCA) para 31
MARRIAGE ALLIANCE OF SOUTH AFRICA
E-mail: xformt@mweb.co.za | Phone: +27 012 343 9488 | Fax: +27 12 343 5280
Address: PO Box 13140, Cascades, 3202, KwaZulu-Natal, South Africa.

Page 4 of 10
f. Property regime (S 19)

Section 19(4) is unclear.

g. Registered domestic partnership agreement (S 20)

This section empowers a court to set aside a registered domestic partnership agreement if it
is satisfied that giving effect to it would cause “serious injustice”. It then stipulates, in a non-
exhaustive fashion, factors that the court may have regard to in determining whether serious
injustice would result from giving effect to the agreement. These factors are open-ended to
the extent that they do not sufficiently guide a court in coming to this conclusion. Two
examples are sections 20(3)(c) and (d): how does a court determine unfairness or
unreasonableness; what distinguishes the two criteria (note “or”). As presently formulated,
this provision can constitute a severe restriction on the partners’ freedom of contract unless
clearer and restricted factors are given for a court to determine what makes an agreement
“unfair” or “unreasonable” and what constitutes “serious injustice”.

h. Maintenance after death and intestate succession

Section 31 aims to include a surviving partner of a registered partnership into a reference to


“spouse” in the Maintenance of Surviving Spouses Act 27 of 1990. Firstly, there is no
definition of “spouse” in that Act, but a definition of “survivor” which refers to the “surviving
spouse in a marriage dissolved by death”. Secondly, and more importantly, it is not possible
to include a surviving partner of a registered partnership into the word “spouse” because that
word refers specifically to a “spouse in a marriage”, and a registered partnership is not a
marriage. Thirdly, even in the absence of that qualification, decisions of the Constitutional
Court have interpreted the word “spouse” as referring to a partner in a marriage (it has a
technical meaning already).e Fourthly, section 2(1) of the Maintenance of Surviving Spouses
Act makes reference to the provision of maintenance until “re-marriage”. A surviving partner
of a registered partnership may not have been previously married and could therefore not
remarry. The context and structure of the Act does not permit of the interpretation sought by
section 31 of the Bill.f
The third reason provided above applies with equal force to the interpretation of
“spouse” in the Intestate Succession Act (section 32). Neither does the context and structure
of this Act permit of the interpretation sought by section 32 of the Bill.

i. Section 30 of the Bill

Section 30(1) makes reference to “an agreement”. It is not clear whether it refers to a
registered partnership agreement (section 20) or to a termination agreement (section 26),
both of which may regulate the financial matters pertaining to the relationship.

j. Determination of existence of unregistered domestic partnerships

Part VI of the Bill provides benefits to a partner of an unregistered domestic partnership: (1) a
right to claim maintenance after separation; (2) a right to claim maintenance after the death
of one’s partner; (3) a right to inherit from the intestate estate of one’s partner; and (4) a right
to benefit from a judicial division of property. Access to these benefits depends on a
determination of the existence of an unregistered domestic partnership. According to section
e
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1 (CC); Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1
(CC)
f
Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC)
MARRIAGE ALLIANCE OF SOUTH AFRICA
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45(1), read with section 38(2), the existence of an unregistered domestic partnership is
determined by a court upon an application made within two years after the date on which the
partnership is terminated through separation or death (emphasis added).
Firstly, in light of the nature of some of these benefits (or obligations), particularly
those that operate after the death of one partner [(2) and (3) above], it is not appropriate that
the existence of an unregistered partnership be an “after-the-fact” determination.
Opportunistic individuals (note section 38(1): an application may be made by one partner
only) whose partners become deceased may take advantage of this “after-the-fact”
determination to burden their partners’ estates, even where their partners would not have
intended for their relationships to attract such burdens. Numerous court applications (well-
meaning, spurious and/or fraudulent) may be made by individuals aiming to prove that they
were in relationships that are worthy of being termed “unregistered domestic partnerships.”
These will burden the court system. The above-mentioned concerns are likely to lead to a
lack of commitment to relationships, even those of a friendly nature.
Furthermore, the judicial determination of an unregistered domestic partnership will
depend on the weight that a particular judge places on particular factors listed in section
38(2), as well as unmentioned ones [section 38(3)]. This constitutes a threat to the rule of law
and to legal certainty.
Secondly, at which point does a judge conclude that an unregistered domestic
partnership commenced and at which point does he/she conclude that it ended. At which
point does he/she determine that it ended by separation or by death. Clarity on these factors
is important in order to enable the law to legitimately place legal obligations on individuals in
these relationships, particularly those extending to the estate of a partner in this relationship.

k. Protection for partners in unregistered partnerships

The absence of clear lines demarcating the commencement and existence of an


unregistered domestic partnership makes partners in these relationships vulnerable to being
“cheated on” by others who may be in secure relationships with third parties. Section 38(4)
provides that a court “may not make an order under this Chapter regarding a relationship of a
person who, at the time of that relationship [i.e. the unregistered partnership], was also in a
civil marriage, civil partnership or registered domestic partnership with a third party.” The
innocent unregistered partner who did not know that his other partner was, at the time of their
relationship, also in a civil partnership or a civil marriage, will not benefit from a court order
made in relation to her unregistered partnership with the latter because section 38(4)
excludes a court’s jurisdiction over the unregistered partnership.
This vulnerability also manifests itself in the application of sections 40-43. The
awarding of a maintenance order and the amount to be paid to a surviving partner in an
unregistered partnership must take into consideration the existence of a surviving partner of
the deceased in a customary marriage and, in other circumstances, a partner to another
unregistered partnership.

l. The duty of support in unregistered partnerships

The obligation of spouses to maintain each other during the subsistence of a marriage
derives from the duty of support, which arises automatically on the conclusion of a marriage.
As a result of this automatic duty of support, a spouse can be held liable during the existence
of a marriage if he/she fails to maintain his/her partner. The Maintenance of Surviving
Spouses Act 27 of 1990 is a legislative intervention aimed at extending this duty of support
beyond the death of one of the spouses; the obligation to maintain that exists during
marriages passes to the estate of the first-dying spouse.g

g
Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) para 39
MARRIAGE ALLIANCE OF SOUTH AFRICA
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Section 39 provides that unregistered partners “are not liable to maintain one another
and neither partner is entitled to claim maintenance from the other” except in terms of this
Chapter. This is not surprising when one considers that the existence of an unregistered
partnership, for purposes of attaching legal consequences, is an “after-the-fact”
determination. There can therefore be no entitlement to maintenance before that
determination. In light of the above, it is anomalous that sections 40 - 42 provide a partner to
this relationship with the entitlement to claim maintenance after separation and after death. In
the absence of such entitlement at the time when the partners were together, there is no
basis for the posthumous creation of an entitlement after the relationship has ended – by
separation or by death. Section 41 is an amended version of the Maintenance of Surviving
Spouses Act in the context of an unregistered domestic partnership.

m. Customary spouses v unregistered partners: spousal benefits

It is surprising that the existence of a customary marriage between one of the partners of an
unregistered partnership and a third party does not, unlike the existence of a civil marriage,
civil partnership or a registered partnership, remove the jurisdiction of a court from making an
order on the legal consequences of an unregistered partnership involving the former (as
section 38(4) does). What is more disturbing is that in relation to spousal benefits conferred
in this Chapter, spouses of customary marriages are placed on the same level as partners in
an unregistered partnership, despite the fact that a customary marriage is of a higher status.
This should not be so. Spouses in customary marriages ought to be given greater security
than is given under this Bill.

n. Intestate succession: unregistered partners

Surviving partners in an unregistered partnership are given a right to inherit from the intestate
estates of their deceased partners (section 43). As was argued under (l) above, in relation to
the “after-the-fact” determination of the existence of an unregistered partnership, it is not
appropriate to impose a burden on the estate of a deceased who during his lifetime would
not have agreed to this. Secondly, and more importantly, the surviving partner of an
unregistered partnership cannot be included under the reference to “spouse” in the Intestate
Succession Act because in its textual and structural context, that word refers to a spouse in a
marriage.

2. PROCEDURAL CONCERNS

a. The public hearing process and the requirements of public participation

The Marriage Alliance of South Africa is concerned about the limited opportunity afforded to
the public to make a meaningful contribution to the law-making process in relation to this Bill.
Most people, particularly ordinary citizens, only obtained information about hearings in their
area within 24 hours of them taking place, the main advertisement being by word of mouth.
There were very few local newspapers that advertised these hearings, and those that had
adverts did not give specific venues or times. It was mainly interested non-governmental
organisations that took the effort to phone parliamentary officials and the portfolio committee
secretaries for confirmation of venues or times. As a result of this delayed awareness, people
did not have the opportunity of accessing and studying the Bill before the time of the hearing.
They therefore could not apply their minds on its contents and implications for their lives.
We are also concerned about the manner in which the public hearings process was
conducted. Only one hearing was scheduled per province. The times, venues and locations
of some hearings have been changed at the last minute. In Polokwane, for example, the
hearing started at 11:30 when it was supposed to commence at 10:00, and the venue and
MARRIAGE ALLIANCE OF SOUTH AFRICA
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Page 7 of 10
time were summarily moved to the local township to commence that afternoon. The
Pietermaritzburg hearing scheduled originally for Saturday 30th September was moved
forward to Friday 29th September, and most interested parties in KwaZulu-Natal were not
aware of the change.
We believe that the public hearing process does not comply with the duty of the
National Assembly to “facilitate public involvement in the legislative and other processes of
the Assembly and its committees” (section 59(1)(a) of Constitution). In Doctors for Life
International v The Speaker of the National Assemblyh the Constitutional Court considered
the meaning and scope of the duty to facilitate public participation in the law-making process.
The majority held that there were at least two aspects of the duty to facilitate public
involvement: (1) the duty to provide meaningful opportunities for public participation in the
law-making process; (2) the duty to take measures to ensure that people have the ability to
take advantage of the opportunities provided.i
The first aspect requires Parliament to take measures to equip the public to
participate in the law-making process in a meaningful way (emphasis added); i.e. “provide
notice of and information about the legislation under consideration and the opportunities for
participation that are available”j; provide “access to information and the facilitation of learning
and understanding in order to achieve meaningful involvement by ordinary citizens;”k “create
conditions that are conducive to the effective exercise of the right to participate in the law-
making process”.l
The second aspect requires Parliament to take measures to ensure that the public
does participate in the law-making process (emphasis added); i.e. the opportunity to submit
representations and submissions, written and/or oral; conducting its business in an open
manner and holding its sittings and those of its committees in public.m
Whether the legislature has taken steps to afford the public an opportunity to
participate effectively in the law-making process (i.e. whether it has discharged its duty to
facilitate public participation) depends on what was reasonable in light of all the
circumstances.n Factors relevant to determining reasonableness are:o
• parliamentary rules adopted to facilitate public participation;
• the nature and importance of the legislation under consideration and the intensity of
its impact on the public; and
• what Parliament considers to be appropriate and practicable in light of money and
time constraints.

It is our view that the steps taken by Parliament to afford the public an opportunity to
effectively participate in the process of passing this Bill does not comply with the requirement
of reasonableness if consideration is given to the importance of the Bill and the impact which
it will have on society in general, on the timeless institution of marriage; on every statute
governing the legal consequences of marriage; and on religious and cultural beliefs and
customs around marriage in South Africa. Parliament has not succeeded in this short time
since the introduction of the Bill to equip the public to engage the contents of the Bill in any
meaningful way, and has also failed to ensure adequate public participation given the
importance of the Bill.
Adoption of this Bill will be ill considered, premature and unwise. In addition, it will be
inconsistent with the court’s approach to the importance of public participation laid down in
the Doctors for Life judgment.
h
CCT 12/05, 17 August 2006, as yet unreported
i
ibid para 129
j
ibid 131
k
ibid 131
l
ibid 132
m
Ibid 136-137
n
Ibid 125-128
o
Ibid 128
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b. Failure to refer Bill to National House of Traditional Leaders

To the extent that the Bill affects the status of customary marriages (an important and
sensitive cultural institution), particularly in relation to the rights of surviving spouses of these
marriages and the fact that there are traditional leaders who also act as marriage officers,
this Bill ought to be referred to the National House of Traditional Leaders in terms of section
18(1) of the Traditional Leadership and Governance Framework Act 41 of 2003.

CONCLUDING REMARKS

It should be clear that the Bill in its present form is fatally flawed. It probably creates more
legal and social problems than it solves. And, most importantly, it does not protect marriage
as a union of a man and a woman. In our view this Bill is not the proper way to protect the
institution of marriage; it does nothing to protect the family as a foundational element of
society, nor does it effectively regulate other kinds of relationships.
Rather than proceeding with this Bill, we believe Parliament has the moral and legal
responsibility to adopt a constitutional amendment in which a marriage is defined as a
voluntary union of a man and a woman. That would effectively protect marriage against any
statutory or judicial challenge.
We say that Parliament has the moral responsibility, because as the elected
representatives of the people it is morally obliged to protect the integrity of marriage as a
heterosexual institution. The majority of South Africans do not believe that same-sex
relationships can ever be morally equivalent to marriage as has been accepted for
generations. In our opinion the demand for same-sex marriage is a challenge to the
strongest and most important foundational element of society, i.e. marriage and the family.
The adoption of same-sex marriage will radically redefine marriage and family, will have far-
reaching social consequences for generations to come, and will contribute to the social and
moral confusion and instability we already experience in our society. We appeal to
Parliament to conserve the existing moral consensus by the adoption of a constitutional
amendment defining marriage as a heterosexual institution.
Parliament also has the legal responsibility to act on this matter. The constitutional
authority to determine the content of the Constitution, also by way of amendment, is vested
in Parliament. The function of the Constitutional Court is to interpret and apply the
Constitution as handed down to it by Parliament. If the Constitutional Court’s interpretation of
the Constitution has the effect of overturning foundational elements of society, such as
marriage and the family, which are supported and valued by the large majority of South
Africans, it is Parliament’s right and duty to amend the Constitution in order to prevent that
from happening. By doing so, Parliament will not be challenging the authority of the Court; it
will simply confirm the constitutional authority and role of both institutions. By amending it,
Parliament will moreover confirm the authority of the Constitution as the supreme law of the
Republic.
The obvious objection is that the time for a constitutional amendment has run out,
and that all that Parliament has before it is the Civil Union Bill that has to be finalised before
1st December. Our reply is that Parliament is the highest legislative institution of the Republic
with the constitutional authority to amend the Constitution whenever it deems necessary. No
time constraint except those in the Constitution itself can stop Parliament from doing so. The
question is not one of too little time, but of political will. If Parliament is prepared to listen to
reason, and to the voice of the people, and it is prepared to provide the moral and
constitutional leadership we request, it will take up this challenge on behalf of the people and
amend the Constitution.

MARRIAGE ALLIANCE OF SOUTH AFRICA


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Address: PO Box 13140, Cascades, 3202, KwaZulu-Natal, South Africa.

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We pray that Parliament and this Committee will receive the wisdom and clarity required to
take the proper action in this difficult matter. We pray that you will be prepared to take a
moral stand in accordance with God’s will. We pray that God will protect our marriages and
our nation.

God bless South Africa. Nkosi Sikelel’ iAfrika.

Co-Chairpersons of the Marriage Alliance of South Africa:


Cardinal Wilfrid Napier
(Chairman of the Southern Africa Bishops Conference)
Rev Moss Ntlha
(General Secretary of the Evangelical Alliance of South Africa)
Dr Michael Cassidy
(International Team Leader/African Enterprise)

For more Information:


General Administration/Communications:
Naomi Boshoff Cell 083 675 1001

Media:
Ron Steele Mobile 082 891 7458

E-mail: xformt@mweb.co.za Phone: +27 12 343 9488 Fax: +27 12 343 5280

MARRIAGE ALLIANCE OF SOUTH AFRICA


E-mail: xformt@mweb.co.za | Phone: +27 012 343 9488 | Fax: +27 12 343 5280
Address: PO Box 13140, Cascades, 3202, KwaZulu-Natal, South Africa.

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