South Africa: It Is Law – The Amended Civil Union Act

South Africa has now taken a further step in embracing equality before the law for same-sex couples, and this step may further evaporate further risks of exposure to discrimination based on sexual orientation. Unfortunately, the change has caused a mixed bag of emotions. Marriage officers in the employ of the state can no longer object to solemnizing same-sex marriages or is it not that simple.

Section 6 of the Civil Union Act, no.17 of 2006 as amended ("the Principal Act")

Sections 6 of the Principal Act states that:

"A marriage officer, other than a marriage officer referred to in section 5, may in writing inform the Minister 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."¹

The above section allowed for state-employed marriage officers to object to solemnizing same-sex marriages on the grounds as set out above. Section 6 of the Principal Act does open the door, potentially, to discrimination on the grounds of sexual orientation. Furthermore, against the backdrop of the Constitutional Provisions of the right to exercise freedom of religion², it would seem to confirm the existence of conflicting rights in respect of religion and sexual orientation, and either one would suffer some form of limitation.

The Civil Union Amendment Bill 2020 ("the amendment bill")

Section 2 of the amendment bill states that:

"Section 6 of the Civil Union Act, 2006 (hereinafter referred to as the principal Act), is hereby repealed."³

And section 2 of the amendment bill states that:

"(1) Any exemption granted by the Minister in terms of section 6 of the principal Act, prior to the commencement of this Act, lapses 24 months from the date of commencement of this Act. (2) The Minister must ensure that there is a marriage officer, other than a marriage officer referred to in section 5 of the principal Act, available to solemnize a civil union at every Department of Home Affairs office."⁴

It would appear that the Amendment bill will not apply retrospectively and merely states that any exemption which may have been granted to state-employed marriage officers prior to the commencement of the Act will lapse upon the expiry of 24 months after the date of the commencement of the Act. Section 2 of the Act further states that the Minister must (with emphasis) ensure that there is a state-employed marriage officer available at every Department of Home Affairs to solemnize a civil union.

What is clear, the public is divided in regards to opinion. Interestingly, the amendment bill places a duty on the Minister to ensure that there is a state-employed marriage officer available at every Department of Home Affairs to solemnize a civil union marriage as opposed to saying that state-employed marriage officers may not object to the solemnization of a civil union marriage. The wording of the section allows for flexibility and does not ignore the constitutional rights of the state marriage officers.

Footnotes

1. Section 6 of the Principal Act

2. Section 15(1) of the Constitution of South Africa

3. Section 2 of the Amendment Bill

4. Sections 2(2) – (2) of the Amendment Bill

Originally published Nov 1, 2020

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