Browsing by Author "Barnard, Jaco"

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    Same-sex marriage, civil unions and domestic partnerships in South Africa: critical reflections on an ongoing saga
    (Juta Law, 2007) De Vos, Pierre; Barnard, Jaco
    This article reflects critically on the various stages in the legal recognition of same-sex marriage in South Africa. The authors devote particular attention to a connection between the apartheid order's use of the 'separate but equal' slogan and the operationalization of this slogan (and its political history) by activists to counter the legislative attempt to enact a second-class civil partnership regime for same-sex life partnerships in South Africa. The authors argue that the Constitutional Court's decision in the Fourie matter left Parliament with a carefully delineated mandate fully to recognize same-sex life partnerships by way of marriage. They critically evaluate the proceedings of the Home Affairs portfolio committee during the public participation hearings. In conclusion the authors consider the legal consequences (and paradoxes) of the enactment of the Civil Union Act 17 of 2006, which they read as a concession to colonialism in the broadest sense of that word.
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    Totalitarianism*, (Same-Sex) marriage and democratic politics in post-apartheid South Africa
    (Juta Law, 2007) Barnard, Jaco
    This article interrogates what it considers to be several totalitarian moments in the process that led to the legislation that authorised same-sex marriage in South Africa. The interrogation proceeds from three platforms which also form the basis of any believable theory of democratic politics, namely church / state separation, plurality and common (shared) citizenship. My argument is that Parliament - by introducing (and defending) the first draft of the Civil Union Bill (which deliberately failed to introduce a marriage regime for same-sex life partnerships) in response to the Fourie judgment - failed properly to consider all three of these fundamental aspects of democracy. This failure was complemented by more overt totalitarian moves on the part of several fundamentalist religious groups in South Africa that (ironically so) vehemently opposed the first draft of the Bill even though it did not provide for same-sex marriage. I conclude that democratic activism coupled with the strength of and commitment to the South African Constitution and to the decisions of the Constitutional Court ensured the successful evasion of these totalitarian moments while emphasising that the struggle against totalitarianism in South Africa is far from over.