30 OCTOBER 2006

Where else in the bill of rights is there an interpretation provision? Is our bill of rights not based on the Universal Declaration of Human Rights? Does international human rights law protect marriage? Are we not a constitutional democracy and can we prescribe to the Constitutional Court how to interpret our laws?


1. It is correct that the South African Bill of Rights has its origins in international human rights law. See for example Constitutional Principle II of the 1993 Constitution which provided that "Everyone shall enjoy all universally accepted fundamental rights ..."

2. The institution of marriage is as a matter of fact explicitly protected in several international human rights instruments. Art 16 of the Universal Declaration of Human Rights, the very same instrument to which the question refers, states clearly:

"16.1 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.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

One may also refer to Art 23 of the International Covenant on Civil and Political Rights, and Art 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, both of which provide more or less the same, referring expressly to the right of men and women to marry. Note also the express reference to the family.

3. So, the intention was indeed that our Bill of Rights should reflect international human rights: The fact that there is nothing in the South African Bill of Rights to protect marriage is therefore at the very least an oversight which should be put right.

4. Should Parliament therefore amend the Bill of Rights to protect marriage, it would only do what should have been included in the Bill of Rights in 1996 when the Constitution was adopted.

5. The reason why we propose the inclusion of a definition is because it represents a minimalist approach purely from a drafting point of view. We asked ourselves the question what is the smallest amendment that would achieve the purpose to protect marriage? And section 39 is indeed the interpretation clause of the Bill of Rights. One may look at any constitutional law text book - when they discuss section 39 they call it "Interpretation" (see eg De Waal and Currie The Bill of Rights Handbook (2005) pp 145 and further). Section 39 reads as follows:

"39. (1) When interpreting the Bill of Rights, a court, tribunal of forum-

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

(b) must consider international law; and

(c) may consider foreign law.

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill." (Emphasis added.)

Three remarks: (1) What else is this if not an interpretation provision? (2) Also note that the legislature quite directly and unequivocally imposes duties here on the courts on how to interpret the Bill of Rights. (3) The proposed amendment would fit perfectly into the construction of section 39.

6. Of course, if the Committee does not agree with the minimalist approach followed with the proposal, would it prefer the insertion of a completely new clause elsewhere into the Bill of Rights with the explicit wording of one of the above international human rights instruments? Then we also follow international law much more closely. The institution of marriage in any case deserves no less.

7. The Constitution also contains other interpretation provisions, such as section 239 on definitions. As a matter of fact, every law made by

Parliament contains a definitions clause, which is nothing else than a provision instructing everybody, including the courts, how to interpret the law. These days laws even go further by including explicit interpretation clauses in addition to the definitions clause -see eg section 3 of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000, section 2 of the Promotion of Access to Information Act 2000 and the Labour Relations Act 1995.

8. Further to the question of whether Parliament is supposed to direct the Court in its interpretation of the Constitution: Parliament's constitutional function and responsibility is to determine the content of the Constitution, and the function of the Court is to interpret and apply the Constitution as handed down by Parliament. It is for this reason that we have had some twelve constitutional amendments already.

9. Parliament may (and should!) decide that marriage needs constitutional protection and amend the Constitution accordingly. That will then be the Constitution that the Court must interpret and apply. That is exactly what the Constitution itself intends and anticipates by section 74, which prescribes the procedures that Parliament must follow to amend the Constitution.

10. Why Parliament determines the content of the Constitution? Because Parliament is the elected representative of the people. The Republic is governed by the elected representatives of the people, and not by the courts, irrespective of how much respect we have for them. If the majority of the people want Parliament to protect marriage effectively, it should act accordingly. Yes indeed, we are a democratic constitutional state, not a state governed by judges. Indeed, it is for this reason that we have has some twelve constitutional amendments already. Additionally, it is the reason why the Court referred the Fourie matter back to parliament - as the voice of the people.

11. There is thus no question as to Parliament's constitutional authority in this matter. It rather boils down to Parliament's will to protect this foundational and venerable institution of society effectively through a constitutional amendment - and to bring it in line with international practice of amending the constitution to protect marriage.

The main points are the following: (1) international law is actually on our side on this issue, (2) the inclusion of an interpretation clause into any law, including the Constitution, is standard drafting practice, and (3) Parliament has full constitutional authority to adopt this amendment.

The relationship between Parliament and the
Constitutional Court

In its submission to Parliament on the Civil Union Bill, the Marriage Alliance addressed the relationship between Parliament and the Court and pointed out that it is Parliament's function to determine the content of the Constitution, also by way of amendments, and it is the Court's function to interpret and apply the Constitution as handed down to it by Parliament. Constitutionally, there is no reason for a so-called impasse between Parliament and the Court simply because Parliament amends the Constitution.

2. When the Court struck down the floor-crossing legislation in 2002, Parliament bypassed the Court's judgement with an extensive amendment to the Constitution (see the 10 page addition to Schedule 6 of the Constitution). In that case it was not even for a matter of principle, but for politically expedient reasons.

3. If Parliament adopts a constitutional amendment, all the Court has the authority to do is to make sure that the amendment was adopted in accordance with the procedures and majorities prescribed in section 74. The Court's jurisdiction over this is dealt with in section 167(4)(d) where it provides that the Court has exclusive jurisdiction to decide on the constitutionality of any amendment to the Constitution. That provision does not confer on the Court the authority to say it doesn't like the amendment, or believes it takes away rights, or it is inconsistent with the right to equality, and therefore to strike it down. That is the whole idea of Parliament's power to amend the Constitution - it may, by adhering to the correct procedures, put into or take away something from the Constitution that may in the eyes of some, even the Court, be inconsistent with the rest of the Constitution (I do not concede here that that is indeed the implication of our proposal - see paragraphs 5 and 7). The Court is therefore only competent to determine whether the proper procedures were followed and the right majorities were obtained in the case of a particular amendment.

See paragraphs 11 and 12 of the UDM floor-crossing case:

" This case is not about the merits or demerits of the provisions of the disputed legislation. That is a political question and is of no concern to this Court..."

"Amendments to the Constitution passed in accordance with the requirements
of s 74 of the Constitution... become part of the Constitution. Once part of the Constitution, they cannot be challenged on the rounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another.It follows that there is little if any scope for challenging the constitutionality of amendments that are assed in accordance with the prescribed procedures and majorities. "

The Court found in casu that the amendment of the Constitution in a manner not contemplated or sanctioned by the constitution itself, was invalid.

Matatiele Municipality Constitutional Court case3 illustrates how the Constitutional Court can set aside a constitutional amendment, not because it disagrees with the amendment or finds it inappropriate - that is a political decision - but because the prescribed procedures were complied with. The Court set aside the constitutional amendment for non- compliance with the requirement of public participation by the KwaZulu - Natal Provincial Legislature( in not holding any public hearings or inviting written submissions).

4. Just to explain the legal position more clearly by referring again to the floor-crossing legislation: While the Court was competent to strike down the ordinary legislation for being inconsistent with the Constitution, it would have been unable to strike down the amendment that followed, the reason being that the prescribed procedures were indeed followed and the Court would have had no other ground on which it could invalidate the amendment.

Can the Constitution be amended to take away rights? Constitutionally, as explained, Parliament has the authority to do just that, provided it follows the correct procedures. However. the ACDP proposal does not take away rights. Firstly, we do not believe that to reserve marriage for heterosexual couples takes away rights from anybody else. Our Constitution does not protect freedom of sexual orientation as a basic human right. It is not a right; it is only a around on which unfair discrimination is prohibited. Secondly, if government had adopted our proposal when we first submitted it, they could have amended the Constitution before the 1st of December, with no rights being affected.

[ PMG Note: Footnotes not included ]