November 27, 2006
A Summary Of Doctors For Life's Work In Respect Of The Process Leading Up To The Passing Of The Cicil Union Bill Act 2006

Dear Members and Friends

Many were not able to follow all DFL's work in respect of the process
leading up to the passing of the Civil Unions Bill. For your benefit
we have summarised the events that took place in the last two years
with regards to same sex marriages in South Africa.

Sincerely yours,
DR ALBU VAN EEDEN

- CEO -

The South African Law Reform Commission hearings in 2004

DFL made submissions at the meeting held in Durban in 2004. These submissions formed the basis of our case at each subsequent stage of the battle. In essence they consisted of:

1. A summary of the socio-psychological evidence demonstrating that the traditional heterosexual marriage has sufficient advantages over homosexual unions to warrant special protection by the law and deserves privileged status in society.
2. A plea for a constitutional amendment to protect marriage by defining it as a union between man and woman. This was also the subject of a separate submission to the Constitutional Amendment Committee in Parliament in 2005.
3. A passionate plea that Christians, Moslems and people from virtually all religions, who took their marriage vows seriously and regarded them as sacred would not merely be offended by a change in the definition of marriage, but would be unfairly discriminated against under the Equality clause of the Bill of Rights on the ground of religion, conscience and belief.

The Constitutional Court case of Fourie and Bonthuys vs the State 2004/5

DFL and John Smyth were each admitted as amici curiae to support the State against the two lesbian women. DFL stressed in written submissions paragraph 1 above. John Smyth concentrated in his written and oral submission on paragraph 3 above. Although, in common with other amici, John Smyth was given only 20 minutes to address the Court, his submissions were well received and commented on at length in the judgement. We have reason to believe that our submissions contributed substantially to the decision to send the case to Parliament rather than alter the Marriage Act there and then.

The Parliamentary Process in 2006 to meet the Court deadline of November 30

Parliament did not begin until early September, thus giving themselves less than 3 months to deal with the most contentious piece of legislation ever. As a result of the DFL victory in the Parliament case (August 2006) public hearings were held by the National Assembly committee in all 9 provinces and in Cape Town. DFL made a submission in Cape Town and received an excellent hearing. John Smyth was kept on the stand answering questions from the Committee for over half an hour and then recalled. Nearly 7000 written submissions were made to the Committee and nearly 600 oral presentations of which ours was one.

All seemed on track for Civil Unions for gays, NOT marriages, until some 10 days after the hearings the ANC suddenly directed that the Bill be changed into a marriage bill for gays. DFL immediately wrote to the following to protest:

• The President
• The Speaker
• The Chairperson of the NCOP

Copies were sent to the Minister of Home Affairs with whom JS had met on November 1 and to whom he had made further suggestions which again seemed to be well received.

On the morning of the day of the debate in the National Assembly, John Smyth spoke personally and privately for some 20 minutes to the Chairperson of the National Assembly Committee which had conducted the public hearings. He spent a quarter of an hour with another very
influential ANC MP, Ms Patricia Mentor and he spoke to the personal assistant to the deputy chairperson of the NCOP who will preside there next week. On the evening before JS had spoken at length on the telephone to John Jeffrey, Parliamentary Counsellor to the President.

The story that emerged in these private conversations came out in part in the televised debate. The Minster of Defence, a very senior member of the party, told the house that the changes in the Bill had come about because the Party were determined to make their loyalty to their gay comrades in the struggle their first priority. Many ANC MPs were forced to vote against their conscience. A few who refused were "banished" from the SADC meetings in Pretoria for the day. It is a sad reflection on our Parliamentarians, our Parliamentary process and government that for those who have no higher loyalty, than loyalty to comrades takes preference over the wishes of the vast majority of the population. It also makes the 2 months work of Mr. Chauke's committee a sham.

The NCOP have to pass the Bill before the end of the month, and our recent Constitutional Court victory (with regards to public participation in the legislative process) directs them to ensure that "meaningful" public hearings be held. Two days have been set aside. Apart from the impossibility of accommodating thousands of people who will want to be heard, the fact is that if they alter so much as one comma, the Bill will have to return to the National Assembly who rose for Christmas today, Nov 16! Meaningful public hearings in the NCOP? Everyone I spoke to was in no doubt that the NCOP's job was to rubber-stamp the Bill and no more. Certainly they did not want to return to deal with a fait accompli again. But the NCOP (I received a letter from the Chairman today) know we are watching them, and so I expect some very fancy window-dressing. We have sent in our submission to the NCOP including a draft of the whole Bill altered in red-ink to incorporate our submissions.

The one gleam of optimism comes from Mr. Chauke's assurance, and the Minister's, that the issue of marriage will be revisited next year. But you do not have to be a rocket scientist to see that once gays start to marry on December 1st, that cannot/will not be reversed. We have tried, as indeed many others have; I doubt whether we could have done more.

~ John Smyth, QC (Senior Legal Advisor) ~