Constitutional Court of South Africa

“ The message is that gays and lesbians lack the inherent humanity to have their families and family lives in such same-sex relationships respected or protected. It serves in addition to perpetuate and reinforce existing prejudices and stereotypes. The impact constitutes a crass, blunt, cruel and serious invasion of their dignity. The discrimination, based on sexual orientation, is severe because no concern, let alone anything approaching equal concern, is shown for the particular sexual orientation of gays and lesbians. ”

“ Although expressed in a different context and when marital status was not a ground specified in section 8 (2) of the interim Constitution, the following remarks of O’Regan J in Harksen, [80] are apposite:
“I agree that marital status is a matter of significant importance to all individuals, closely related to human dignity and liberty. For most people, the decision to enter into a permanent personal relationship with another is a momentous and defining one.”
The effect of omitting same-sex life partnerships from section 25 (5) limits the above rights at a deep and serious level. ”

“ In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. ”

“ In deciding whether words should be severed from a provision or whether words should be read into one, a court pays careful attention first, to the need to ensure that the provision which results from severance or reading words into a statute is consistent with the Constitution and its fundamental values and secondly, that the result achieved would interfere with the laws adopted by the legislature as little as possible. ”

“ Apart from those cases where the Constitution makes express provision to the contrary, a court decides constitutional disputes and makes, where appropriate, orders of constitutional invalidity, only on the issues presented to it and not as a matter of abstract constitutional adjudication. When a statutory provision has been partially invalidated by way of notional severance, the hypothetical possibility always exists that subsequently, because of the issues and contentions then placed before the court, the ambit of the constitutional invalidity might have to be extended. ”

“ Any other conclusion would lead to the absurdity that the granting of a remedy would depend on the fortuitous circumstance of the form in which the legislature chose to enact the provision in question. A legislature could, for example, extend certain benefits to life-partners generally and exclude same-sex life partners by way of express exception. In such case there would be no objection to declaring the exception invalid, where a court was satisfied that such severance was, on application of whatever the appropriate test might be, constitutionally justified in relation to the legislature. ”

“ Permanent same-sex life partners are entitled to an effective remedy for the breach of their rights to equality and dignity. In the circumstances of this case an effective remedy is one that takes effect immediately. At the same time, if the order were to have retrospective effect, it might cause uncertainty concerning the validity of decisions taken and acts performed in the past, in good faith and in reliance on the provisions of the Act as they then read, with regard to applications under the Act by partners in permanent same-sex life partnerships. ”

“ Such a view would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter. It is likewise demeaning to couples who commence such a relationship at an age when they no longer have the desire for sexual relations. It is demeaning to adoptive parents to suggest that their family is any less a family and any less entitled to respect and concern than a family with procreated children. ”

“ Gays and lesbians are certainly individually permitted to adopt children under the provisions of section 17 (b) of the Child Care Act 74 of 1983 [73] and nothing prevents a gay couple or a lesbian couple, one of whom has so adopted a child, from treating such child in all ways, other than strictly legally, as their child. They can certainly love, care and provide for the child as though it was their joint child. ”

“ Itself a country where considerable political and socio-economic movement has been and is taking place, South Africa occupies a distinctive position in the context of developments in the legal relationship between family members and between the state and the family. Its heterogeneous society is ‘fissured by differences of language, religion, race, cultural habit, historical experience and self-definition’ and, consequently, reflects widely varying expectations about marriage, family life and the position of women in society. ”

“ The rights limited, namely equality and dignity, are important rights going to the core of our constitutional democratic values of human dignity, equality and freedom. [79] The forming and sustaining of intimate personal relationships of the nature here in issue are for many individuals essential for their own self-understanding and for the full development and expression of their human personalities. ”

“ It does not proscribe conduct of same-sex life partners or enact provisions that in themselves prescribe negative consequences for them. The differentiation lies in its failure to extend to them the same advantages or benefits that it extends to spouses. The applicants’ complaint, as upheld by the High Court, is in effect that section 25 (5) is “under-inclusive [because] it confers a benefit on a class that is defined too narrowly in that the class fails to include all members that have an equality-based right to be included.” ”

“ What constitutes sufficient precision must depend on the facts and the demands of each case. In deciding what sufficient precision is, one must not lose sight of the fact that the reading in is not a final act. It is important to point out in this context that if the remedy decided upon by a court were the striking down of section 25 (5) , coupled with a suspension order, the question of interim relief to protect the successful applicants would present the same problems concerning the precise formulation of such an interim order as does the remedy of reading in. ”

“ The family unit of a same-sex life partnership is different from the family unit of spouses and to treat them identically might in fact, in certain circumstances, result in discrimination. Spouses in a conventional marriage are in a legal relationship acknowledged by the law in a particular way and the existence of the conventional marriage is capable of easy and virtually incontestable proof ”

“ Categorizing such discrimination as primarily racially oriented, or primarily gender-oriented, misconceives the reality of discrimination as it is experienced by individuals. Discrimination may be experienced on many grounds, and where this is the case, it is not really meaningful to assert that it is one or the other. It may be more realistic to recognize that both forms of discrimination may be present and intersect. ”

“ While the concept of ripeness is not precisely defined, it embraces a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. [19]
[22] ⁠On the issue of ripeness the argument followed much the same line as in the High Court. The contention was that the only remedy pursued by the second to seventh applicants was the obtaining of exemptions under section 28 (2) of the Act. ”

“ Whether a court creates graveyards or vineyards, its choice is not final. Where courts nullify provisions, legislatures can respond by enacting extended and hence constitutional versions; where courts extend provisions, legislatures can subsequently repeal them. Thus, the legislature retains final control over the extension/nullification decision. ”

“ Each relationship is an overt, same-sex life partnership which is intimate and mutually interdependent. This emerges more explicitly in the case of certain of the applicants. The third applicant and her South African partner have lived together in a joint household since March 1995, jointly purchased a home in February 1998, share living expenses, have joint insurances, and regulate their relationship by a domestic partnership agreement. ”

“ He submitted that this was recognised by the Constitution in that certain provisions of the Bill of Rights conferred significant rights only on citizens of the Republic. Thus only a citizen has the right to “enter, to remain in and to reside anywhere in the Republic” ”

“ The High Court is rightly critical in its judgment of the conduct of the respondents in the High Court proceedings, their dilatory approach to the litigation, and their attempt at the last moment to delay the hearing of the case. ”

“ Permanent in this context means an established intention of the parties to cohabit with one another permanently. In my view, such a reading in, seen in the light of what has been said above concerning the legislature’s right to fine-tune the section as so extended and other provisions that may be relevant thereto, does not intrude impermissibly upon the domain of the legislature. ”

“ The second application and the ground of appeal which it seeks to introduce, are without merit, for the reasons which follow.
[11] ⁠A court of appeal is not entitled to set aside the decision of a lower court granting or refusing a postponement in the exercise of its discretion merely because the court of appeal would itself, on the facts of the matter before the lower court, have come to a different conclusion ”

“ The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid.
[25] ⁠The High Court correctly concluded that “spouse” as used in subsection 25 (5) was not reasonably capable of the construction contended for by the respondents. The word “spouse” is not defined in the Act, but its ordinary meaning connotes “ [a] married person; a wife, a husband.” ”

“ Vulnerability in turn depends to a very significant extent on past patterns of disadvantage, stereotyping and the like. This is why an enquiry into past disadvantage is so important. In a passage endorsed in M v H, [57] Iacobucci J in the Law case [58] expressed this tellingly as follows:
“ [P] robably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping or prejudice experienced by the individual or group [citations omitted] . ”

“ It is true that the parties seeking immigration permits are the foreign national partners. On the objective theory of unconstitutionality adopted by this Court [32] a litigant who has standing may properly rely on the objective unconstitutionality of a statute for the relief sought, even though the right unconstitutionally infringed is not that of the litigant in question but of some other person. ”

“ It is possible to be pro-family without rejecting less traditional family forms. It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form and non-traditional family forms may equally advance true family values. ”

“ These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. ”

“ I also agree with the following observations by L’Heureux-Dubé J in Mossop: [47]
“This argument [of Lamer CJC] is based on an underlying assumption that the grounds of ‘family status’ and ‘sexual orientation’ are mutually exclusive. However ... [i] t is increasingly recognized that categories of discrimination may overlap and that individuals may suffer historical exclusion on the basis of both race and gender, age and physical handicap, or some other combination. The situation of individuals who confront multiple grounds of disadvantage is particularly complex ... ”

“ SA 887 (CC) at paras 12–13. As Chaskalson et al, above n 18 at page 8-15 aptly put it― “ [w] hile the ‘ripeness’ doctrine is concerned with cases which are brought too early, the ‘mootness’ doctrine is relevant to cases which are brought, or reach the hearing stage, too late, at a time when the issues are no longer ‘live’.”
Compare Tribe above n 18 at 78.
↑ Section 39 (2) provides: “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.” ”

“ Other authorities dealing with the consequences of a state’s territorial authority and its right to control the entry of foreign nationals into its territory are usefully collated in Van Heerden AJ’s judgment in Dawood and Another v The Minister of Home Affairs and Others; Shalabi and Another v The Minister of Home Affairs and Others; Thomas and Another v The Minister of Home Affairs and Others, (the “Dawood case”) case nos 12745/98 ”