Hon Chairperson, members of the House ...
... ekulumenipikiswano le, ngifuna ukuqala khulu khulu ngehlangothini lomthetho. Lapho ngithi khona: Uthini umthetho? AbeSuthu bathi: Molao o reng? Amakhuwa wona athi: Wat s die wet? [What does the law say?] [In this debate, I would like to focus on the side of the law. Wherein I say, what does the law say? The Sotho people say Molao o reng? Whites say, wat s die wet?]
The Constitutional Court has 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 can 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 provide a remedy that is 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 for the defect to be 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 freedom.
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 webandlululo, umtlhago nobuhlungu sibazi khulu. Akusingithi godu esingajika sifune ukugandelela abanye abantu sibakhuphele ngaphandle. Umhlonitjhwa ukhulumile bonyana abantu ebebagandelelwa ngaphandle, bagandelelwa ngilabo ababaphetheko gade bathwele budisi kangangani. U-Kalyan uthi thina esimalunga we-ANC bazosikatelela ukuthi sivowude namkha sikhethe namhlanjesi. Mina-ke ngithi sithabe khulu namhlanjesi ngombana sifumene ithuba lokobana sivowude; sinikele abantu amalungelo lawo ebegade banganawo; sibe babantu abanikela abantu amalungelo lapha eSewula Afrika. Abanye bavika ngeBhayibheli. Ngifuna ukutjho ukuthi ... (Translation of isiNdebele paragraph follows.) [I would like to say, as people who are from poverty caused by apartheid, that we understand the pain caused by poverty. We cannot oppress other people by excluding them. The honourable member spoke of how difficult it was for people who were oppressed by those who were in power. Hon Kalyan says they will force members of the ANC to vote or to elect today. I say we are very happy that we got an opportunity to vote; we gave people rights they did not enjoy before. We are the people who gave South Africans their rights. Others are using the Bible as a scapegoat. I would like to say ...]
... 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.