The role of the Christian Citizen Committee is to give leadership in matters of personal and social ethics; to help our churches with information on current issues, and to make representation on social issues.
Baptist Union of Southern Africa comment on – Discussion Paper 152 of 2021
30 March 2021
The Secretary
South Africa Law Reform Commission
Private Bag X668
PRETORIA
0001
Dear Mr. Nelson Matibe
Baptist Union of Southern Africa comment on – Discussion Paper 152 of 2021
We, the Baptist Union of Southern Africa, hereby thank you for the opportunity to respond to the Proposed Marriage Laws.
Chapter 1: A single or omnibus marriage or unmarried relationship statute?
1. If fundamental rights required separate statutes in the 1990’s, what has changed in the meantime?
Much, and society continues to change. This is evident in The Bill of Rights as stipulated in The New Constitution of South Africa.
2. Should SA continue with different regulatory regimes for different forms of marriages?
In addition to this question, the Discussion Paper 144 asks in Chapter 1 (I) (1.44) which model the envisaged legislation should follow; we choose par. 1.44.2, “a single marriage statute with chapters which provide the current legal requirements for civil marriages, civil unions, customary marriages, and other marriages and partnerships; “This will enable all marriages to be seen as equal while at the same time allowing for the liberty of religion enabling marriage officers to perform marriages based on their religious belief and conscience.
3. What would be the advantages and disadvantages of a single or unified statute?
The single act, while it would streamline the administration and recording of marriages in South Africa, it might not grant marriage officers the freedom chose which marriages they would want to perform, and this will infringe upon their religious liberty offered to them in the Bill of Rights. We therefore prefer the alternative single act described as omnibus or umbrella marriage statute as described in Chapter 1(i) par. 1.42.
4. What would be the advantages and disadvantages of an omnibus statute on all different requirements for all marriages?
A statute trying to accommodate different religious and social requirements is cumbersome, and never ending, as new situations continually arise. However, it will protect the liberties of the marriage officers as offered to them in the Bill of Rights.
5. Should the statute only cover marriages and should a separate statute on unmarried partnerships be adopted?
Yes, a statute for those wishing to register their marriage and Yes, there should be a separate statute for civil unions.
There is a clear distinction between a marriage and an unmarried partnership and must be addressed in separate laws. Refer to Question 1 of Chapter 2(A) below.
6. Should the statute only set out the requirements for valid marriages and/or unmarried intimate partnerships, or should it cover the legal consequences?
As per Question 5 above, separate statutes for marriages and unmarried partnerships with legal consequences for per separate statute.
Chapter 2: Marriage requirements or essential
A. Marriage requirements or essentials
1. Definitions for marriage
a. How should the proposed legislation define marriage?
“As a God instituted, voluntary covenant to sexual fidelity between one natural man and one natural woman, from different families to serve God and witnessed through public social union.”
Marriage by definition, is heterosexual. Most religions and cultures, especially African traditional cultures, agree. Homosexual/lesbian relations are acknowledged, but never regarded as ‘Marriage’. We therefore recommend that the Act define “Marriage” as heterosexual. Other contracts should be termed “Civil Unions”. The new Act should define these two types of contracts in separate ‘chapters’.
b. Should the envisaged legislation make provision for polygynous marriages, and if so, how?
Our definition of marriage is “between one natural man and one natural woman,” however, we recognize that polygamy is practiced in South Africa. In this case yes, provided that all parties show willing consent and is treated equally.
Furthermore; in terms of gender equality; if polygamy is an accepted practice, polyandry should also be allowed.
c. What constitutes an unmarried intimate partnership which would qualify partners to share legal protections in terms of the omnibus statute?
Intimate partners who are not willing to register their union as a marriage or civil union, must rely on Common Law. Autonomy should include arranged marriages.
2. Consent and capacity to marry
a. Is the common law test and statutory requirement to determine capacity to marry adequate or is there a need for reform in SA law?
No, we request the LRC to provide further guidance possibly in the form of a checklist to be signed by both marriage parties and the marriage officer and the checklist must form part of the registration documents.
b. Do respondents consider a proxy should be allowed to represent a party to marriage?
No.
c. Is there support for legislative measures which adequately take into account autonomy and informed consent to take decisions about marriage?
Autonomy and informed consent is vital, to protect the vulnerable. The marriage officer should be at liberty to conduct separate interviews with both parties to establish autonomy. The need for an additional signed checklist is therefore as mentioned 2(a) above is strengthened. Autonomy should include arranged marriages.
Arranged marriages must never override the individual’s decisions of the parties concerned.
d. Should the envisaged legislation require specifically that parties should have mental capacity to enter into marriages as the Australian Marriage Act does in this regard?
Yes, the Guidelines on the Marriage Act 1961 for Marriage Celebrants seems to be helpful and we support the idea of the marriage officer interviewing the marriage parties separately.
e. Should the consent of the first wife be required if the husband wishes to conclude a second marriage?
Even though we subscribed to the definition of marriage as between “one natural man and one natural woman” we recognize that polygamy is practiced in South Africa and in the interest of preventing injustice and oppression, we recommend consent be requested from all parties within a polygamous marriage.
3. Minimum age for marriage
a. Should discrepancies between the Marriage Act, Recognition of Customary Marriages and Civil Union Act as regards to the minimum age for marriage be remedied?
Yes, we propose a minimum age of 18 without exception for all marriage parties as recorded in the existing Civil Union Act.
b. Does SA have a duty to comply with international and regional instruments to set a uniform minimum age for marriage of 18 without any exceptions for third party consent?
We note in Annexure D – Comparative Research, there is an overwhelming amount of countries that have recently enforced a minimum age of 18 for both girls and boys. I believe it is wise for South Africa to follow suit as this could leave us vulnerable to inferior child protection laws.
4. Giving notice and marriage licenses
a. Do respondents agree with the reintroduction of the giving of notice and the issue of marriage licenses in SA?
No, it is not necessary
b. Will the giving of notice or the issue of a marriage license contribute towards safeguarding government interests in marriage being concluded?
Unlikely. However, the issuing of the license will indicate details of the marriage officer, the religious practitioner or traditional leader who has passed the regulation as proposed by the government, to function as marriage officer.
c. What information should the notice contain?
The marriage officer is the functionary who solemnizes the marriage/civil union.
5. Role of marriage officer and other functionaries
a. Is there support for marriage officers and other functionaries being involved in the solemnization and registration of any or all forms of marriages?
Allmarriages andcivil registered unions should be conducted by a registered qualified marriage officer.
b. What should the requirements be for the involvement of marriages officers?
Demonstrable competence, a recognized leader of a religious organization/recognized traditional leader. Competence can be tested using an online or in person test with a prescribed pass criterion.
c. If marriage officers should still be involved in solemnizing marriages what should their function be?
Make sure legal requirements are followed
B. Registration of Marriages
1. Do respondents support registration of marriages?
Yes. It is a universal custom of governments to register marriages, and often needed by people when moving to other countries as proof of marriage.
2. Should failure to register affect the validity of the marriage?
In the eyes of the State, registration affects the legal consequences and protections. However, religious and other bodies may recognise a marriage as valid, if conforming to their rules.
3. If marriage can still be valid without registration, should there be alternative ways to prove the existence of the marriage?
Religious bodies can issue their own certificates stating this is not a legally registered marriage.
4. Should parties be able to register marriages at any stage after their conclusion?
No, they need to adhere to existing rules.
5. Should unmarried intimate relationships be registered to afford the partners legal rights?
If partners in such a relationship wish to gain greater legal rights, they must be willing to register their relationship in the legally prescribed way.
6. If unmarried intimate relationships should be registered, what information should be required?
If partners in such a relationship wish to gain greater legal rights, they must be willing to register their relationship in the legally prescribed way.
7. If registration of unmarried intimate relationships merely serve as evidence of the relationships, what other ways should there prove the existence of such relationships?
If individuals do not wish to register their relationship legally, they must use other means of establishing the reality of their relationship.
8. Are there any issues regarding registration of marriages respondents wish to highlight which need further consideration?
The need to respect the consciences of all, religious folk, non-religious folk, everyone. Marriage officers, in particular, must not be forced to violate their conscience in conducting and registering a marriage.
C. Marriage Ceremony
1. The Marriage Act and Civil Union Act prescribe the formulae to be used during certain marriage ceremonies. Do respondents agree and if not, why?
A suitable minimal and generic formula that covers legal requirements only; one for a marriage, and another for a civil union. Religious and traditional organization should have the freedom to incorporate their own practices.
2. Does a prescribed formula contribute in any way towards effecting legal certainty as to a marriage having been conducted?
Yes. The marriage parties must publicly declare before witnesses their eligibility and willingness to enter into their marriage or their union.
D. Matrimonial and patrimonial consequences
1. Is there support for a single marriage statute or omnibus legislation, what should it provide for in regards to matrimonial property?
If the intention of this law reform is to create equality and to align marriage and all other forms of unions or partnerships to the Constitution of SA, then we should comply with the spirit of the law in terms of creating EQUALITY for ALL parties in registration, divorce and dissolution of such registrations. We therefore support a single marriage statute to govern matrimonial and patrimonial consequences across religions and traditions. This could prove to be challenging in some traditions but this could be the acid test for the real purpose of this law reform.
2. Should the matrimonial consequences of all marriages and intimate unmarried relationships being regulated by a single marriage statute or omnibus legislation?
If the question reads; “Should the matrimonial consequences of all marriages and intimate unmarried relationships be [and not being] regulated by a single marriage statute or omnibus legislation?”our response is …
A single marriage statute within an omnibus legislation to avoid oppression, injustice and exploitation.
E. Spousal support
1. Should the law recognize a statutory duty to support between unmarried partners?
The law must not give similar advantages when the parties are not willing to make concomitant commitments. If the partners have no formal commitment to one another, they cannot appeal to law.
2. Should the duty of support also extend to circumstances where one of the unmarried partners is also in an unmarried partnership or a spouse in a marriage?
No, this entanglement should not be included in the scope of marriage laws. Clear distinction must be made between ‘marriages’ and ‘civil unions’, and ‘registered’ and ‘unregistered’. ‘Support’ cannot be left to vague legal imaginations.
F. Antenuptial agreements
1. Should a single marriage statue make provision for the conclusion, registration and enforcement of antenuptial agreements?
Yes
G. Dissolution of relationships and alternative dispute resolution
1. How could alternative dispute resolution mechanisms be applied to resolve family law disputes?
Yes, this option should always be available. Without it, the marriage/civil union must default to “community or property”. If the contract is dissolved, then the joint property is divided evenly between the parties. In the event of a polygamous marriages, the arithmetic gets complicated! But, as far as possible, the law must decide in advance.
H. Sham of bogus marriages
1. How are sham or bogus marriages best prevented and to deal with them after they have been concluded?
The wording of the marriage or civil union formulas imply genuine commitment by all parties. If there are reasons to suspect this is false, the officer should not continue. We therefore propose penalties for reckless/careless registrations.
What people enter into willingly and freely has legal implications, whatever their intentions.
I. Have we covered everything?
1. Are there any other suggestions not already covered by issues raised above in so far as they may contribute towards the investigation?
One important issue in all this is freedom of conscience so that no one is forced to violate their conscience, either those entering into marriage/unions/partnerships, or those officiating such acts.
… end.
Baptist Union Response to the proposed PEPUDA BILL
22nd June 2021
Greetings Pastors and Church Leaders of our Baptist Family.
The BUCCC held a virtual workshop last week (15 June) on the Proposed changes to the Marriage laws for South Africa and PEPUDA Bill. The workshop was well received and valuable information was shared.
There are three main pieces of proposed legislation which are under discussion:
1. The Single Marriage Statute, Discussion Paper 152 of 2021 crafted by the South African Law Reform Commission (SALRC) on request from the Department of Home Affairs (DHA). The purpose of this Single Statute is to replace all existing marriage laws into one Statute and include other marriages and life partnerships not governed in existing law. We submitted our response to the SALRC on 17 May 2021. Submission can be viewed on the BU website.
2. The Marriage Policy, Green Paper on Marriages in South Africa for Public Consultation, version 20 April 2021, designed by the DHA. The purpose of the marriage policy is to establish a policy foundation for regulating the marriages of all persons that reside in South Africa, including citizens, international migrants, asylum seekers and refugees. The envisaged marriage statute will enable South Africans and residents of all sexual orientations, religious and cultural persuasions to conclude legal marriages that will accord with the principles of equality, non-discrimination, human dignity and unity in diversity, as encapsulated in the Constitution.
Due date for submission is 30 June 2021.
3. Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, PEPUDA Bill, 2021, drafted by the Department of Justice and Correctional Services, (DoJ). The main purpose of the Act is to realise the Constitutional Right to equality so that people do not face unfair discrimination by either the state or anyone else. Should this Bill be passed in its current form, it will have serious far reaching consequences for all citizens and particularly, the Christian Church as the Amendments infringe on our fundamental rights; Freedom of Religion and Right of Association. For this reason, the BUCCC sought legal assistance from BU Legal Advisor, Cliff Marshall who had already drafted objections letters for his church at Honeyridge. We received his permission for our BU churches and individuals to use the objections letters and to submit them to the DoJ on or before 30 June 2021.
I attach the following:
a. The slides of the Virtual Workshop of 15 June
b. Michael Cassidy’s explanation of the PEPUDA Bill, https://youtu.be/9bY0KgvD2is
c. The PEPUDA Bill
d. Objections letters for both Churches and Individuals to be submitted by 30 June 2021. We encourage all churches and individuals to object to the Amendment Bill.
Prayer requests:
a. Please pray for Cliff Marshall and his wife as both contracted the C-19 virus, and
b. Please pray for Godly-intervention, discernment and wisdom as we deal with all these proposed changes.
Kind regards and blessings
Yolanda Ford
BUCCC Chairperson
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Baptist Union of Southern Africa comment on – Discussion Paper 152 of 2021
17 May 2021
The Principal State Law Adviser
South Africa Law Reform Commission
Private Bag X668
PRETORIA
0001
Dear Mr. Pierre van Wyk
Baptist Union of Southern Africa comment on – Discussion Paper 152 of 2021
The Baptist Union of Southern Africa recognizes your hard work and effort in bringing equality to all our South African citizens. We are particularly moved by the attention given to vulnerable parties in marriages and other intimate relationships and the efforts you are making to ensure fair treatment of all parties in the event of a dissolution of marriage or partnership. We applaud you for the number of workshops you have conducted during April and May 2021. They have brought awareness and great insight.
1. Omnibus Legislation
Feedback as requested by Prof Domingo:
In the workshop of 15 April 2021, Professor Domingo mentioned that the SALRC decided to go with Single Statute and that the Omnibus Legislation was no longer an option. I and others requested that the Omnibus legislation be considered for the following reasons:
a) We refer to Chapter 1(I)(1.42, 1.43 and 1.44)
. 1.42 A single marriage statute can take two different forms – either a unified set of requirements (and possibly consequences) applying to all marriages, which we refer to as a single or unified marriage act, or alternatively a single act which contains different chapters which reflect the current diverse set of legal requirements for and consequences of civil marriages, civil unions, customary marriages, Muslim and possibly other religious marriages. The latter could be thought of as an omnibus or umbrella marriage statute.
1.43 Issue Paper 35 explained that the academic consensus seems to be in favour of the creation of a single basic statute to govern different cultural, religious and secular marriages rather than retaining the current piecemeal situation.52
b) We appreciate the comment made in 1.43 that academically it is easier to govern a single marriage statute than multiple laws governing various types of marriages, partnerships and or protected relationships, however, ….
Paragraph 2 of the Executive Summary further states that "There was no clear majority support or preference by respondents for the approach to be followed in this investigation with equal support for a single and an omnibus statute. This discussion paper suggests a unitary approach."
c) We note that only 48 respondents commented on the Issue Paper 35 and that the SALRC decided to go the single statute route. 48 Respondents are not a representative sample of our country which leads me to assume that the SALRC is taking an academic approach to the proposed marriage laws and not basing its approach on the religious consciousness of the country's 85% of the population who follow the Christian Religion. [1] During the Q&A session in both workshops of 15 and 22 April 2021, the Muslim religion and the African Traditional religion were too asking for their religions to be recognized in an Omnibus styled legislation.
REQUEST #1: We, therefore, request that the existing marriage laws remain in force and that amendments be made to include parties who are not in legally protected relationships such as Muslim, Hindu and other Customary Marriages and that an overarching Marriage Policy create equal importance of each law.
2. The inclusion of the definition of Marriage
The present draft Bill defines Marriage as uniting three existing Acts into a Single Act. The Marriage Act 25 of 1961; the recognition of Customary Marriages Act 120 of 1998 and the Civil Union Act 17 of 2006. These will fall under the new “Protected Relationships Act.”
The Baptist Union defines marriage heterosexually and monogamously "as a God instituted, voluntary covenant to sexual fidelity between one natural man and one natural woman, from different families to serve God and witnessed through the public social union."
It is crucially important to define "Marriage" as a Heterosexual union. Though the same legal consequences of marriage may be granted to same-sex couples, the distinctive mark of a 'marriage' is its heterosexual criterion, without which it is impossible to potentially procreate a Family.
Reasons why the Bill must define "Marriage" as "heterosexual":
a) This is a universal Human Right. The Universal Declaration of Human Rights (article16): "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." Article 30 warns against destroying any of the rights in the Declaration. ‘Same-sex Marriage’ would destroy article 16. Please preserve this Universal Human Right!
b) Most Dictionaries define Marriage as heterosexual. Examples: Oxford, Chambers, Legal.
c) The proposed Bill itself, when allowing Polygamy, refers to a 'man' marrying 'women'. This recognises Polygamy/Polygyny as a true "Marriage" because it meets the criterion of a Heterosexual union. The same heterosexual criterion must be sustained in monogamous Marriage.
d) Most major world religions define Marriage as between a Man and a Woman
ISLAM https://www.islamicity.org/5208/same-sex-marriage 2013/04/02 · HINDUISM https://www.hinduwebsite.com/hinduism/hinduism-and-same-sex-marriage.asp BUDDHISM https://www.huffpost.com/entry/gay-marriage-what-would-b_b_230855 2009/08/13 CONFUCIANISM https://www.cambridge.org/core/journals/politics... TAOISM https://personaltao.com/taoism/questions/taoism-homosexuality2020/01/02 f) JUDAISM https://en.wikipedia.org/wiki/Same-sex_marriage_and_Judaism CHRISTIANITY https://www.focusonthefamily.com/family-qa/... SHINTOISM https://foreignpolicy.com/2015/06/29/what-does-japan-shinto-think-of-gay-marriage/
e) African Culture assumes "Marriage" is heterosexual; Same-sex marriage is unthinkable.
The idea of same-sex 'marriage' is foreign to African culture. Kenyan law is a typical example https://www.sowetanlive.co.za/news/africa/2019-05...2019/05/24. It
seems strange that South Africa, which tends to consciously resist Colonial influence, willingly turns its back on African culture and follows the occasional Western Colonial example in legalising Same-sex Marriage.
f) South Africa would be true to itself and its African cultural heritage by defining 'Marriage' as heterosexual. It would not exalt politically-correct ideas above biological facts.
g) Outside of Africa, only a few nations recognise same-sex marriage - and these are primarily in the colonial West. https://www.academia.edu/7947805
h) If we alter the established meaning of Marriage to include same-sex unions, we set a dangerous precedent: We can make words means what we want them to mean. Then “age 18" can mean ‘age 16'; “S.A. citizen” can mean ‘Kenyan citizen’; “Caucasian” can mean ‘African’. “Heterosexual Marriage” sustains a deep historical, religious and cultural practice, which would be lost if the word “Marriage” was made to mean ‘any relationship between two or more people’.
REQUEST #2: We implore the SARLC, please ensure that “Marriage” is defined as always meaning a heterosexual union. Use other terms to denote other relationships. This will not subvert the purpose of this Bill: to legalise the various cultural/religious forms as “Protected Relationships”.
3. Consent and capacity to enter relationships
We agree with the necessity for consent and capacity for those entering into marriage and legal relationships. This applies to polygynous marriages as well as those following the traditional custom of ukuthwala. In short, no person, particularly women, can be forced into a marriage without their full and free consent and understanding of what they are doing.
REQUEST #3: The minimum age for both male and female should be 18 years and not; "minors below the minimum marriageable age of 15 years for girls and 18 years for boys, unless the permission of the Minister of Home Affairs is obtained" as stipulated in the Discussion Paper[2]
4. Marriage Officers
"2.49.11 The Marriage Act does not compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or
organisation to solemnise a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of the religious denomination or organisation." [3]
REQUEST #4:
a) We request that it be entrenched that Marriage Officers enjoy the right to act on their religious conscience as stated in the Marriage Act and not be forced to solemnize any marriage outside of their religious doctrine.
b) We further request Section 6 of the Civil Union Act remain in force and not removed as per the recent amendments of The Civil Union Amendment Act 8 of 2020.
c) Lastly, we request DHA to develop an online service marriage registration, thereby reducing long hours spent in queues at DHA offices. Should an Online System pose a fraud risk, we request a dedicated desk for Marriage Officers at the local DHA offices.
SALRC mentioned in the workshop of 15 April that there are currently 16,000 registered marriage officers and less than 2,000 Home Affairs marriage officials. It is evident that Home Affairs will not be able to cope should Religious Officers hand in their marriage licenses.
5. Registration of Relationships
The Bill seems to assume the default is that they have the consequences of the relationship whether it is registered or not. Using the analogy of a Driver’s License; Permission to drive a car in public depends on obtaining a driver’s license. It is not enough to say, “I can drive”, it must be objectively proved by having a license. Likewise, it is not enough to say, “we have a relationship”, this must be objectively proved by having a registration of that relationship.
REQUEST #5:
a) We propose that the default position be that the legal consequences of the relationship do not exist unless it is registered.
b) We propose that the law make Registration an essential requirement for marriage and other relationships IF the legal benefits and are desired. Where they do not want legal benefits and consequences, they should not register the relationship, and these consequences should not be assumed.
Scenario: Many years ago, an older couple, both widowed, wanted to get married. But if they did so, she would lose her widow's income dependent on her remaining legally unmarried. They considered cohabiting, but their consciences would not permit this. Taking both legal and theological advice, they married based on the scripture in God's sight but would not be legally registered, meaning they would not be legally married. They are still happily married, and she still receives that widow's income.
6. Unregistered Life Partnerships
The default should be that there be NO legal benefit/consequences unless the parties register the partnership.
REQUEST #6.
a) These should be Registered if the legal benefits and consequences are desired.
b) We further propose that the Department of Home Affairs embark on a massive Nation-wide Awareness Campaign on various media platforms about the importance of marriage registration and the consequences of a lack of registration. A 3-year transitional period should be implemented to allow for unregistered marriages and life partnerships to be registered by those who wish to enjoy the benefits and or consequences.
Thank you for the opportunity
Kind regards and blessings
Mrs. Yolanda Ford
Chairperson of the Christian Citizenship Committee of the BUSA
[1] Discussion paper 152 Chapter 1 H. Legal pluralism
[2] Chapter 2 (H) (1) (2.27)
[3] Chapter 2 (2 Marriage Officers) 2.49.11
1. BUSA comment to new Proposed Marriage Laws (SALRC)
Baptist_Union_of_Southern_Africa_-_Comment_to_Discussion_Paper_152_of_2021_of_2021.docx
2. BUSA Position Paper on same-sex marriage
BUSA_Position_Paper_on_Same_Sex_Marriage_-_March_2021.docx
3. Booklet on Corruption (to follow)