The Constitutional Court judgment of Minister of Home Affairs v Fourie allowed for the enactment of the Civil Union Act. The Constitutional Court held that the provision in the Marriages Act, which excluded the entering into of a marriage between people other than a man and a woman, was unconstitutional as it infringed on the right to equality and the right not to be discriminated against by the State on grounds of sexual orientation.
The enactment of the Civil Union Act extended the recognition of marriage rights to same-sex partners, allowing same-sex partners to enter into a civil partnership, civil union or marriage and to enjoy the same benefits as heterosexual relationships. In terms of the Civil Union Act, a civil union may be solemnised either by religious marriage officers, by ex offıcio marriage officers or by designated marriage officers who are civil servants.
Section 6 of the Civil Union Act however provides that a marriage officer may, in writing, inform the Minister of Home Affairs that he or she objects to solemnising a civil union between persons of the same sex on the grounds of conscience, religion and belief.
Same-sex or same-gender couples have been subjected to various forms of discrimination pertaining to their gender identities, expression or orientation. Regular instances of systematic refusals by officials of the Department of Home Affairs to offer services to same-sex or same-gender couples who attempt to enter into a civil union have been reported. This exclusion or refusal to allow couples to enter into civil unions/same-sex marriages, raises the same concerns with respect to the violation of the rights to dignity and equality which initially led to the enactment of the Civil Union Act.
Section 6 of the Civil Union Act inherently violates same-sex and same-gender couples’ right to dignity as it limits their access to basic services which are easily available to heterosexual couples. It has been a barrier to the legal recognition of same-sex couples by marriage officers in the Department of Home Affairs. Furthermore, Section 6 of the Civil Union Act explicitly lists same-sex unions as the sole reason a civil marriage officer is permitted to object to the solemnisation. In essence, this section allows a marriage officer to use their discretion based on their personal beliefs and morals when performing their duties.
The objective of the new Amendment Bill to the Civil Union Act is to repeal Section 6 so that marriage officers will no longer be permitted to object to the solemnisation of same-sex marriages. The Amendment Bill further introduces a transition provision to address the consequences of the repeal. During this transitional period, marriage officers will receive training relating to their duties and the advancement of the right to equality – the purpose being to eliminate existing differentiation. In addition, the Minister must ensure that there is a marriage officer available to solemnise a civil union at every Department of Home Affairs office. The Amendment Bill was adopted by both Houses of Parliament on 1 July 2020 and was passed on 22 October 2020.