National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: Conradie J, Davis J and Knoll AJ
• Judgment Date: 12 February 1999
• Citation: 1999 (3) SA 173 (C)
• Docket Number: 3988/98
• Counsel: WH Trengove (with him Anton Katz) for the applicants PB Hodes (with him AM Breitenbach) for the respondents
• Court: Cape Provincial Division

Davis J: H

Introduction

The first applicant is a voluntary association representing gay, lesbian, bisexual and transgendered people in South Africa. Since 25 April 1996 it has engaged in consultations with respondents concerning provisions of the I Aliens Control Act 96 of 1991 (as amended) ('the Act') which it considered discriminates against members of its constituency. In particular, the first applicant has been concerned with the wording of s 25(5) of the Act in that the definition of 'spouse' contained therein excludes life partners. In its view this section is unconstitutional.

Second to seventh applicants each made application for a renewed J

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exemption from the provisions of the Act in terms of s 28(2) thereof. These A applications were refused by the respondents.

Pursuant to the respondents' decision not to grant exemptions in terms of s 28(2) of the Act, the applicants applied to Court for an order in the following terms:

'(1)

reviewing and setting aside or correcting the decision of the first B respondent to deny the seventh applicant an extension of the exemption granted on 23 April 1997 in terms of s 28(2) of the Aliens Control Act 96 of 1991, as amended, in consequence of his abiding same-sex relationship with the thirteenth applicant; and

(2)

reviewing and setting aside or correcting the decision of the first C respondent to deny the second to sixth applicants an exemption in terms of s 28(2) of the Aliens Control Act 96 of 1991, as amended, in consequence of their abiding same-sex relationships with the eighth to twelfth applicants respectively; and

(3)

reviewing and setting aside or correcting the decision of the first D respondent, alternatively the third respondent, that special circumstances no longer exist in terms of s 28(2) of the Aliens Control Act 96 of 1991, as amended, to accommodate the same-sex life partners of South African citizens involved in committed relationships; and

(4)

directing the third respondent to accept, process and refer the applications of the second to seventh applicants for an immigration permit in E terms of s 25(2) of the Aliens Control Act 96 of 1991, as amended, on terms no less favourable than those applicable to married couples under s 25 of the Act, to the appropriate immigrants' selection board for consideration;

(5)

declaring s 25 of the Aliens Control Act 96 of 1991, as amended, to F be inconsistent with the provisions of the Constitution of the Republic of South Africa Act 108 of 1996 and therefore invalid to the extent of its inconsistency;

(6)

directing the first respondent to extend the exemptions already granted to the seventh applicant in terms of s 28(2) of the Aliens Control Act G 96 of 1991, as amended, pending any amendment to the Aliens Control Act to comply with the provisions of the Constitution of the Republic of South Africa Act 108 of 1996;

(7)

directing the first respondent to grant to the second to sixth applicants exemptions in terms of s 28(2) of the Aliens Control Act 96 of 1991, H as amended, pending any amendment to the Aliens Control Act to comply with the provisions of the Constitution of the Republic of South Africa Act 108 of 1996;

(8)

declaring that the failure of the first respondent to recognise committed same-sex relationships as a special circumstance in terms of s 28(2) of the Act is unconstitutional'. I

The dispute

In order to understand the nature of the dispute and the basis of the relief sought it is necessary to examine essential features of the Act. Section 23 provides that

'(s)ubject to the provisions of s 28 and 29, no alien shall - J

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(a)

enter or sojourn in the Republic with a view to permanent A residence therein, unless he or she is in possession of an immigrant permit issued to him or her in terms of s 25; or

(b)

enter or sojourn in the Republic with a view to temporary residence therein, unless he or she is in possession of a permit for temporary residence issued to him or her in terms of s 26'. B

Section 25 provides for the manner in which an application by an alien for a permit to immigrate to the Republic shall be made. Every application which is made is to be submitted by the Director General to a regional committee of the immigrants selection board established in terms of s 24 of the Act (s 25(1) and (2)). Section 25(3) empowers the regional committee concerned to authorise the C issue of an immigration permit to an applicant. Section 25(4) provides that the regional committee may authorise the issue of an immigration permit if the applicant

'(a) (i)

is of good character; and

(ii)

will be a desirable inhabitant of the Republic; and

(iii)

is not likely to harm the welfare of the Republic; and D

(iv)

does not and is not likely to pursue an occupation in which, in the opinion of the regional committee, a sufficient number of persons are available in the Republic to meet the requirements of the inhabitants of the Republic; or

(b)

is a destitute, aged or infirm member of the family of a person permanently and lawfully resident in the Republic who is able and E undertakes in writing to maintain him or her'.

Subsection (5) provides that,

'(n)otwithstanding the provisions of ss (4), but subject to the provisions of ss (3) and (6), a regional committee may, upon application by the spouse or the dependant child of a person permanently and lawfully resident in the F Republic, authorise the issue of an immigration permit'.

Subsection (6) provides that

'(a) regional committee may, in the case of a person who applies for an immigration permit and who has entered into a marriage with a person who is permanently and lawfully resident in the Republic, less than two years prior to G the date of his or her application, refuse to authorise such a permit unless the committee is satisfied that such marriage was not contracted for the purpose of evading any provision of this Act'.

Section 30(2)(e) contains a related provision to ss (6) in that it empowers the Minister to withdraw an immigration permit issued in terms of s 25 where the holder H

'. . . obtained the permit on the basis of a marriage entered into less than two years prior to the date of issue of the permit, and such marriage is judicially annulled or terminated within two years subsequent to the said date, unless the Minister is satisfied that such marriage was not contracted for the purposes of evading any provision of this Act . . . '.

In short, an alien requires an immigration permit in order to enter South Africa. Such a permit is issued by a I regional committee which takes account of a number of factors specified in s 25(4). Notwithstanding these factors, however, a regional committee may issue an immigration permit to a spouse or a dependent child of a permanent and lawful resident in the Republic. In the case where a permit is issued to a spouse, J

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the committee must be satisfied that the issue of the permit would not be in A conflict with the Act or any other law and that the marriage was not contracted for the purpose of evading any provision of the Act.

In terms of s 28(2) the Minister of Home Affairs may, if he or she is satisfied that there are special circumstances to justify the decision, 'exempt B any person or category of persons from the provisions of s 23 and for a specified or unspecified period and subject to such conditions as the Minister may impose, and may do so also with retrospective effect'. Thus in terms of s 28(2) the Minister is effectively empowered to allow a person to enter the Republic and to permanently reside therein notwithstanding that such person does C not possess an immigrant permit. He may also allow a visitor to remain without a permit for temporary residence.

First applicant approached the respondents in order to resolve what it perceived to be a problem of discrimination, namely that s 25(5) afforded preferential treatment to spouses, that is a married woman in relation to her husband and a married man in relation to his wife. D

Pursuant to these discussions, first applicant and respondents reached an agreement on 16 May 1997 that, as an interim measure, bona fide same sex couples would 'on merit' receive exemptions in terms of s 28(2) of the Act. Between April and November 1997 respondents granted at least 13 E exemptions in terms of s 28(2) to the foreign same sex life partners of South African citizens and permanent residents. In each case the exemption declared that the first respondent or his delegate had given 'careful and sympathetic consideration to the application' and 'was satisfied that special circumstances exist which justify such an exemption'. F

In December 1997 third respondent wrote to the parliamentary lobbyist of first applicant and informed him that

'in terms of s 28(2) of the Act the Minister may only grant exemption where there are special circumstances which justify such a decision. In view of the steady flow of applications for exemptions, one can hardly argue G that special circumstances exist in any of these cases as contemplated by the said section of the Act. The mere fact that the Aliens Control Act, 1991, does not cater for same sex relationships cannot be considered as ''special circumstances'' for the purposes of exercising the powers of exemption under that Act. In view of the above consideration it has been decided not to grant exemptions under s 28(2) of the Act merely to accommodate alien partners in same sex relationships.'

The second to seventh applicants then made applications for exemption in H terms of s 28(2) but all such applications were refused.

On 11 November 1997 first applicant wrote to first respondent urging a reconsideration of the decision not to exempt third and fifth applicants from the requirements of an...