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Date: 21.10.2017

The Widower (1999)

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Introduction [1] This matter raises two important questions. The first is whether it is unconstitutional for immigration law to facilitate the immigration into South Africa of the spouses of permanent South African residents but not to afford the same benefits to gays and lesbians in permanent same-sex life partnerships with permanent South African residents.

The second is whether, when it concludes that provisions in a statute are unconstitutional, the Court may read words into the statute to remedy the unconstitutionality.

Section 25 5 reads: That Section 25 5 of the Aliens Control Act 96 of is declared invalid to the extent that the benefit conferred exclusively on spouses is inconsistent with section 9 3 in that on the grounds of sexual orientation it discriminates against same sex life partners. That the declaration of invalidity of section 25 5 is suspended for a period of twelve months from the date of confirmation of this order to enable parliament to correct the inconsistency.

That the exclusion of same sex life partners from the benefits conferred by section 25 5 of the [Act] constitute[s] special circumstances requiring the grant of an application for exemption made in terms of section 28 2 of the Act by a same sex life partner of a person permanently and lawfully resident in the Republic.

This part of the order shall remain in force for as long as it takes parliament to correct the inconsistency. That under section 2 b of the Constitution second and further applicants are exempted, in terms of section 28 2 of the Act, from the provisions of section 23 thereof.

No action may be taken against them in terms of the Act arising out of their living working or studying in the Republic. Less than twenty-four hours before the matter was due to be heard by the High Court, the respondents sought a postponement of the hearing. They tendered costs on the attorney and client scale, coupled with an undertaking that the status quo with regard to the second to thirteenth applicants would persist until the final determination of the matter.

The purpose was, according to the respondents, to: Persistent efforts were made by the applicants to remind the respondents of their obligations not only to this Court but ultimately to the Constitutional Court. No explanation was provided as to why the respondents had chosen to ignore the proceedings for more than seven months. First, they applied on notice of motion for an order with, amongst others, the following terms: Granting the [respondents] leave to file their Answering Affidavit together with the annexures thereto; 3.

Alternatively to prayer 2 above, remitting the matter to the Court a quo for rehearing of the application;. The respondents did not attempt to make out a case, nor argue, for the reception of the founding affidavit as new evidence on appeal, [8] or as material falling under Constitutional Court Rule 30 1. The first application is wholly misconceived. Short of setting aside on appeal an order made by another court and substituting a different order, this Court has no jurisdiction to make an order on behalf of another court properly seized of a matter or to condone, on behalf of such court, non-compliance with the rules of procedure to which such court is subject.

The second application and the ground of appeal which it seeks to introduce, are without merit, for the reasons which follow. Even assuming, however, that such ground correctly formulates the test which would permit interference by this Court, the respondents have got nowhere near to establishing such a ground, on the facts before the High Court. No such vitiating error on the part of the High Court was contended for by the respondents in their written or oral argument before this Court and none can, on the papers, be found.

In fact I am of the view that the High Court correctly dismissed the application for good and substantial reasons and that both the applications in this Court relating to such dismissal ought to be refused. The question of the appropriate costs order will be dealt with at the conclusion of this judgment. The statutory framework and relevant facts [12] Before reaching the constitutional issue in this matter it is necessary to consider the contentions raised by the respondents that the High Court should not have decided the issue of the constitutional validity of section 25 5 because it was not ripe for decision.

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But even this preliminary issue requires a consideration of the statutory framework and the facts relevant to the issue to be determined. Its principal objectives include the promotion of equality before the law for all persons, irrespective of their sexual orientation; the reform and repeal of laws that discriminate on the basis of such orientation; the promotion and sponsoring of legislation to ensure equality and equal treatment of people in respect of their sexual orientation; and to challenge by means of litigation, lobbying, advocacy and political mobilisation, all forms of discrimination on the basis of such orientation.

The fourteenth applicant is the Commission for Gender Equality. They all have certain features in common. 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 , jointly purchased a home in February , share living expenses, have joint insurances, and regulate their relationship by a domestic partnership agreement.

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Their emotional, physical and material interdependence is, like other applicants,1 [6] such that they would marry each other if the law permitted them to do so. The fourth applicant and his partner celebrated a public affirmation of their relationship attended by family members and friends. If the second applicant is not granted permanent residence in South Africa, the eighth applicant would emigrate in order to pursue the relationship. Pursuant to these discussions, which apparently developed into a cordial working relationship, a written confirmation was given to the first applicant on behalf of the DG that: In consequence thereof at least thirteen temporary exemptions were granted between April and November under section 28 2 of the Act to foreign same-sex partners of lesbian or gay South Africans who were seeking permanent residence in the Republic.

This refusal was embodied in a letter of the same date from the DG to the first applicant in which the following was, amongst other things, stated: In view of the steady flow of applications for exemptions, one can hardly argue that special circumstances exist in any of these cases as contemplated by the said section of the Act. In view of the above consideration, it has been decided not to grant exemptions under section 28[2] of the Act merely to accommodate alien partners in same-sex relationships.

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.

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. The decision regarding an exemption was one to be taken by the Minister. The applicants in question have never applied for an immigration permit under the provisions of section 25 of the Act, which application has to be dealt with by a regional committee and not the Minister. Without having followed such a course, so the argument ran, the applicants had not forced a determination of the issue as to whether a foreign national same-sex partner of a permanent and lawful resident in South Africa was entitled to be treated as a spouse and to the preferential treatment envisaged by section 25 5.

The applicants had accordingly failed to pursue a non-constitutional remedy which, if successful, might have rendered it unnecessary to consider the constitutional validity of section 25 5.

Such failure was in conflict, so it was contended, with the general principle, referred to in the previous paragraph, that where it is possible to decide any case without reaching a constitutional issue, that course should be followed.

There is, it is true, a principle of constitutional interpretation that where it is reasonably possible to construe a statute in such a way that it does not give rise to constitutional inconsistency, such a construction should be preferred to another construction which, although also reasonable, would give rise to such inconsistency. I deal later with the constitutional permissibility of reading words into a statutory provision. The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning.

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. In this regard reference may be made to the recent House of Lords decision in Fitzpatrick A. Mr Patel, who together with Ms Moroka and Mr Dhlamini appeared for the respondents, submitted that the Republic, as a sovereign independent state, was lawfully entitled to exclude any foreign nationals from the Republic; that it had an absolute discretion to do so which was beyond the reach of the Constitution and the courts; and that, to the extent that Parliament legislated to permit foreign nationals to reside in South Africa, it did so in the exercise of such discretion and that the provisions of such legislation were equally beyond the reach of the Constitution and the courts.

This is a significant and determinative difference. The failure of the Act to grant any recognition at all to same-sex life partnerships impacts in the same way on the South African partners as it does on the foreign national partners.

In my view this case can, and ought properly to be decided, on the basis of whether section 25 5 unconstitutionally limits the rights of the South African partners, namely the eighth to the thirteenth respondents. In an important line of decisions, the Zimbabwean Supreme Court has held that the constitutional right of citizens to freedom of movement is contravened when the foreign national spouses of such citizens are denied permission to reside in Zimbabwe.

It is true that the parties seeking immigration permits are the foreign national partners.

On the objective theory of unconstitutionality adopted by this Court3 [2] 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. Thus the second to the seventh applicants are entitled to rely on any unconstitutional infringement of any of the rights of the South African partners the eighth to the thirteenth applicants which has been brought about by the failure of the Act to grant any recognition to same-sex life partnerships.

Obviously the South African partners may also invoke such infringement themselves. The limitation by section 25 5 of the section 9 right to equality and the section 10 right to dignity [30] Section 9 of the Constitution provides: To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

National legislation must be enacted to prevent or prohibit unfair discrimination. 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. There is no merit in this submission, because as indicated above in paragraph 25, spouse is defined with regard to marriage and is but the name given to the partners to a marriage.

Therefore, so the submission proceeded, the fact that they did not enjoy the advantages of a spousal relationship was of their own choosing. What the submission implies is that same-sex life partners should ignore their sexual orientation and, contrary thereto, enter into marriage with someone of the opposite sex. It confuses form with substance and does not have proper regard for the operation, experience or impact of discrimination in society.

Discrimination does not take place in discrete areas of the law, hermetically sealed from one another, where each aspect of discrimination is to be examined and its impact evaluated in isolation.

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Discrimination must be understood in the context of the experience of those on whom it impacts. The law currently only recognises marriages that are conjugal relationships between people of the opposite sex.

It is not necessary, for purposes of this judgment, to investigate other forms of life partnership. Suffice it to say that there is another form of life partnership which is different from marriage as recognised by law. This form of life partnership is represented by a conjugal relationship between two people of the same sex.

The law currently does not recognise permanent same-sex life partnerships as marriages. It follows that section 25 5 affords protection only to conjugal relationships between heterosexuals and excludes any protection to a life partnership which entails a conjugal same-sex relationship, which is the only form of conjugal relationship open to gays and lesbians in harmony with their sexual orientation.

A range of statutory provisions have included such unions within their ambit. As will be emphasised later in this judgment, it is unnecessary in this case to deal at all with the position of such unmarried heterosexual partners. This submission ignores the constitutional injunction that gays and lesbians cannot be discriminated against on the grounds of their own sexual orientation and the constitutional right to express that orientation in a relationship of their own choosing.

As previously pointed out, the section 25 5 protection is not extended to the only form of conjugal relationship in which gays and lesbians are able to participate in harmony with their sexual orientation, namely, same-sex life partnerships. As Sachs J correctly pointed out in the Sodomy case: The situation of individuals who confront multiple grounds of disadvantage is particularly complex. 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. I propose dealing with the present case on this basis. The impact of the discrimination on the affected applicants [41] As affirmed in the Sodomy case the determining factor regarding the unfairness of discrimination is, in the final analysis, the impact of the discrimination on the complainant or the members of the affected group.

The approach to this determination is a nuanced and comprehensive one in which various factors come into play which, when assessed cumulatively and objectively, will assist in elaborating and giving precision to the constitutional test of unfairness. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in their fundamental human dignity or in a comparably serious respect, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether the complainants have in fact suffered the impairment in question.

Society at large has, generally, accorded far less respect to lesbians and their intimate relationships with one another than to heterosexuals and their relationships. The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships.

This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be.

The denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many other ways. This is deeply demeaning and frequently has the cruel effect of undermining the confidence and sense of self-worth and self-respect of lesbians and gays.