ACDP Parliamentary newsletter - 26 September 2003

In this issue:

1. Sex fixed at birth, says ACDP
2. ACDP welcomes SA's World Trade stance
3. Excluding voters unconstitutional

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1. Sex fixed at birth, says ACDP

The ACDP refused to support the Alteration of Sex Description and Sex Status Bill tabled in Parliament on Friday, saying that a person's sex is biologically fixed at birth.

The aim of the Bill is to provide for the alteration of the sex description of persons in the National Population Register whose sex organs have been altered by surgical or medical treatment or "by evolvement through natural development resulting in a sex change".

The Bill deals with the actual application process as well as amending the Births and Deaths Registration Act (Act No. 51 of 1992), by inserting a section dealing with alteration of sex description and the issuing of an amended birth certificate to the person concerned.

ACDP spokesperson on justice Steve Swart said that while the ACDP appreciates that the present South African law allows for sex change surgery, we believe that the approach adopted by the English cases and followed in South African courts should be followed.

"The central question in this case was whether it was possible for a person to change their sex (as defined for the purposes of marriage). In deciding that it was not, the South African court employed the "Ormond Test" from the English case of Corbett v Corbett (1971). This test applied a biological and genetic definition of sex. It considered the "chromosomal, gonadal and genital tests" and if all three are congruent, this would determine the person's sex for the purpose of marriage. In other words a person's sex for legal purposes is a wholly biological question and is fixed at birth," Mr Swart said.

"The ACDP can find no fault with this approach as it affirms our viewpoint that we are "fearfully and wonderfully" created by a loving God, and that surgical or medical intervention does not change our sex."

Mr Swart said that the ACDP also objected to the inclusion of the phrase "evolvement through natural development resulting in a sex change" as the party rejects the unscientific basis of Darwinism and the evolution theory, and fails to see the need for the inclusion of this phrase when no evidence exists of such occurrences in South Africa.

"This is another example of the impact of secular humanism on our legislative process - secular humanism being undergirded by concepts of atheism and evolution," Mr Swart said.

For more information: Steve Swart MP at 083 285 6290
Media Liaison: Charmaine Horne at 084 370 3550 or 021 403 3307

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2. ACDP welcomes SA's stance during World Trade Talks

The ACDP congratulated the Minister on his stand and efforts during the WTO ministerial meeting in Cancun in Parliament on Friday.

"Our goals are laudable and it is good that we are fighting hard on this front to achieve level playing fields in the area of world trade, which should positively impact South Africa and result in better opportunities and conditions for South Africans," ACDP MP Cheryllyn Dudley said.

"The difficulty we have though is that this process could take years and even decades to achieve, so what are we going to do practically in the meantime?

"To dilute the impact of the existing situation surely we need to seriously look at subsidising ourselves in the interim to actively level the playing fields in the meantime. We are not suggesting a shotgun approach but specific targeting of industries, which cannot survive and for the benefit of South Africa, must," Mrs Dudley said.

"It may also be worthwhile doing a study in terms of exactly who will benefit if we do eventually succeed in convincing developed countries to comply with this global initiative. The thought here is that Canada, Argentina and even South Africa to a certain extent may benefit but it is unlikely that other African countries will, as the agricultural infrastructure is not there.

"The question therefore would be what must we and other African countries, be doing to prepare for such a time?" Mrs Dudley asked.

It has been suggested that the highly principled stand of the Africa group was in fact questionable and that South Africa was right to part company with them and join the G20+. As most African countries are net importers of food and other agricultural products by large margins, the subsidies which EU and other farmers get help them to reduce the prices of the produce they export to Africa. This helps African governments to reduce their overall import bills and placate often, restless urban populations. The insinuation is that the fact that subsidies kill much of the business of their farmers is a minor consideration to most of these governments where business opportunities for officials take priority over the real welfare of the people.

"However developing countries have however made their voice heard and this has to be a step in the right direction," Mrs Dudley said.

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3. Excluding voters unconstitutional

After many delays, the Electoral Laws Amendment Bill was finally tabled three weeks ago. The Bill amends both the Electoral Act and Electoral Commission Acts, providing the legislative framework for next years' general elections.

At the outset of the discussions on the Bill, the ACDP voiced its objection that no provision was made for special votes for South African citizens, who, for a variety of reasons, were overseas to vote. Our hopes were somewhat raised when the Electoral Commission proposed that the clause 9(1) be amended to allow special votes due to a voter's:
"(e) temporary absence from the Republic, where he or she ordinarily resides, for one of the following purposes, but in this case, only in an election for the National Assembly:
(i) Study at a tertiary educational institution:
(ii) to perform activities flowing from his or her employment in the
Republic:
(iii) to pursue business activities."

This clause was accepted last Friday when the Bill was finalised. Our cautious optimism was however short-lived, when a twelfth-hour ANC amendment was accepted yesterday morning that removed any possibility of even this narrow category of persons being entitled to apply for special votes.

During a debate on the Bill in Parliament on Friday, ACDP spokesperson on home affairs Steve Swart asked why special provision should be made only for government officials and their households to vote overseas, whilst many students, employees and businessmen will not be able to apply for special votes.

"There must be thousands of such businessmen who faithfully contribute to South Africa's gross national product and pay taxes in South Africa, but who now are unable to even qualify for a special vote," Mr Swart said.

Mr Swart argued that the infrastructure will be in place for those government officials overseas to vote and foreign diplomatic missions could, as in 1994 and 1999, quite easily be used for the purposes of voting on a broader scale.

"We find it totally unacceptable that certain prisoners should be allowed to vote whilst law-abiding citizens who are temporarily overseas, are denied an opportunity to vote," Mr Swart said.

The present amendment is far narrower than that which applied in 1999 with the Electoral Commission's power to prescribe "other categories of persons who may apply for special votes" being removed. Whilst hundreds of thousands of South Africans overseas were permitted to vote in 1994, some 3000 voted in 1999. Now this latter category is excluded, with only South African government officials abroad being allowed to vote.

"Why was this deemed necessary to remove this power? What is the government so concerned about that led to this last-ditch amendment?" Mr Swart asked.

"Is this exclusion constitutional? The ACDP finds it regrettable that a lengthy state legal opinion was obtained regarding prisoners' right to vote, whilst the constitutionality of overseas voters was not given the same attention.

"The ACDP believes that the exclusion of overseas voters will be in direct contravention of sections 1(d) and 19(3) of the Constitution, which guarantee adult citizens the right to vote in elections. The question then arises whether the limitation of the right to vote as contained in the amendment is reasonable and justifiable in terms of section 36. We think not.

"We have received various petitions from South Africans overseas who wish to vote and these people will be bitterly disappointed following last week's announcement that certain categories of persons would be entitled to vote. We will do everything in our power to protect their right to vote, and are obtaining counsel's opinion as to whether we should proceed with litigation in the Constitutional Court," Mr Swart said.

For more information: Steve Swart MP at 083 285 6290
Media Liaison: Charmaine Horne at 084 370 3550 or 021 403 3307

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