The Minister announced that the Department of Home Affairs had undertaken several measures to resolve the issue of officials declining to perform same-sex marriages based on personal convictions and the increasing sensitization of Home Affairs officials thus ensuring that same-sex couples are treated equally, respectfully and according to policies of the Act by department staff.
The Civil Union Act has presented a few challenges to the 'new' dept. of Home Affairs staff, post 1994. As a Registered Marriage Official (R.M.O) for some twelve years now, I would expect the Department to have sorted out these fundamental confusions within their own ranks. However, hate fueled bigotry and religious intolerance still prevails.
Firstly let me say that if you have been a visitor to Home Affairs in recent years, you will be aware that queue's ring the buildings on a daily basis, even before Covid and social distancing. That is to say that the sheer volume that this department processes on a daily, weekly, monthly and yearly basis, is quiet astounding. I generally take my hat off to them, and give credit where it is due, and a few mistakes are tolerable and understandable. However the elephant in the room is blocking the door. Last years there were 21 000 fraudulent marriages alone in SA. Here are some of the experiences I have had dealing with DHA on a regular basis.
A short background.
The Civil Union Act of 2006 is a proxy Act, in a sense, as it hides the indiscretion of the Marriage Act of 1960 allowing both to coexist for now. The Marriage Act in its original state is technically unconstitutional by virtue of the preamble to the Constitution, which declares that no-one may discriminate against anyone else - in essence. The Marriage Act of 1960 is solely for Christian marriage between a male and a female. Before the Civil Union Act, a Civil marriage could be conducted in court or before an official of the department, and was called a Civil marriage. That has not changed.
The preamble to the Civil Union Act supports this non discrimination and is the basis of my point in this argument/article.
ACT To provide for the solemnization of civil unions, by way of either a marriage or civil partnership; the legal consequences of civil unions; and to provide for matters incidental thereto.
PREAMBLE
WHEREAS section 9(1) of the Constitution of the Republic of South Africa, 1996, provides that everyone is equal before the law and has the right to equal protection and benefit of the law;
AND WHEREAS section 9(3) of the Constitution provides that the state may not unfairly discriminate directly or 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;
AND WHEREAS section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected;
AND WHEREAS section 15(1) of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion;
AND WHEREAS the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom;
AND NOTING that the family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex couples,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa
...
One does not even need to read any further to know that the Act's sole purpose is to afford
equal rights to all citizens regardless...
But still, my (heterosexual) couples call me from the local Home Affairs Office in a panic, saying that I have married them under the wrong Act. The stubborn officials refuse to even look over the Act, or contact me by phone, insisting that I must come down there and verify the information in person.
The confusion comes in, because at the same time that the act was introduced, the government, in general, was shuffling the old guard out and the new crew in. The new employees, associated the Civil Union Act with same sex marriage and only same sex marriage, so any heterosexual couple married under the civil union act send off 'false' alarm bells in the partially informed and bigoted official's mind.
The next dilemma came, when mostly African staff members of the Department, got the bee in their bonnets that African Zionists shouldn't be marrying same sex couples as part of their duties as employees and could apply for exemption. Of course the word spread quickly.
The Act offered a provision on the grounds of conscience to any 'religious official' who did not feel ethical, performing same sex marriages. As this clause was ambiguous the Zionists pressured each other to oppose the duty. Eventually around forty percent of govt. employees refused to solemnize or process same sex marriage documentation.
See the Wiki article below that amends this provision revoking the right of government employees to decline this duty.
I have also applied for unabridged marriage certificates on behalf of my couples, and received a birth certificate instead, naming one partner as the mother and the other as the child. How? I don't know. This could surely lead to fraud by negligence
Confusion over "Conviction"
So much politics that has nothing to do with conviction but pressure.
Civil Union Amendment Act, Amendment Act 8 of 2020
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 solemnizing same-sex marriages on the grounds of conscience, religion or belief.
The Civil Union Act was enacted in 2006 to legalize 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 solemnizing a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnize 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 solemnize a marriage that would violate the doctrines of their religion. It applied only to those who were marriage officers by virtue 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. In July 2017, more than a decade after same-sex marriage was legalized 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, 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 sensitization of Home Affairs officials and ensuring that same-sex couples are treated respectfully and according to policies and laws by his staff.
In May 2017, MP Deidre Carter asked acting 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 solemnize such civil unions". She reiterated Gigaba's statement about sensitizing marriage officers.
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. 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 Tongaat, KwaZulu-Natal who were called derogatory names when turned away.
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 a further 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 period or reason. If a branch has an official opting out for the two-year period, they must have another official available who can perform the marriage. The bill passed the National Assembly on 6 December 2018, with support from all parties expect for the African Christian Democratic Party, the National Freedom Party and the African Independent Congress. The National Council of Provinces approved the legislation on 1 July 2020 by a 33–5 vote. It was signed into law by President Cyril Ramaphosa on 22 October 2020.
So just to clear things up as they stand.
The Civil Union is available to anyone eligible to marry in SA
The Civil Union Act and the Marriage Act are equally valid.
The Marriage Act is currently under review, despite objections from major churches.
No official of the department may refuse to perform a same sex marriage.
A same sex marriage is not a civil partnership, it is a marriage. No discrimination is allowed.
A Civil partnership is technically a marriage, without the romantic aspect, for legal property. To date I have never performed a civil partnership.
It seems that the very same champions, who fought for equality in this country are now denying equality to a other minority groups and individuals. Let justice prevail!
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