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

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Cameron AJ, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J
• Judgment Date: 02 December 1999
• Citation: 2000 (2) SA 1 (CC)
• Docket Number: CCT 10/99
• Hearing Date: 17 August 1999
• Counsel: W H Trengove SC (with him Anton Katz) for the appellants/applicants. E M Patel SC (with him K D Moroka and T P Dhlamini) for the respondents.
• Court: Constitutional Court

Ackermann J:

Introduction

[1] This matter raises two important questions. The first is I 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 J

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unconstitutional, the Court may read words into the statute to remedy the unconstitutionality. These A questions arise from the provisions of s 25(5) (s 25(5)) of the Aliens Control Act 96 of 1991 (the Act) and the application of the provisions of s 172(1)(b) of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) should s 25(5) be found to be inconsistent with the Constitution. Section 25(5) reads: B

'Notwithstanding 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 dependent child of a person permanently and lawfully resident in the Republic, authorise the issue of an immigration permit.'

[2] Section 25(5) was declared constitutionally invalid and C consequential relief granted by the Cape of Good Hope High Court (the High Court) [1] (per Davis J, Conradie J and Knoll AJ concurring) in the form of the following order:

'1.

That s 25(5) of the Aliens Control Act 96 of 1991 is D declared invalid to the extent that the benefit conferred exclusively on spouses is inconsistent with s 9(3) in that on the grounds of sexual orientation it discriminates against same-sex life partners.

2.

That the declaration of invalidity of s 25(5) is suspended for a period of 12 months from the date of confirmation of this order to enable Parliament to correct the inconsistency.

3.

That the exclusion of same-sex life partners from the benefits E conferred by s 25(5) of the [Act] constitute[s] special circumstances requiring the grant of an application for exemption made in terms of s 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 F correct the inconsistency.

4.

That under s 172(2)(b) of the Constitution second and further applicants are exempted, in terms of s 28(2) of the Act, from the provisions of s 23 thereof.

5.

No action may be taken against them in terms of the Act arising G out of their living, working or studying in the Republic.

6.

That respondents are to pay, jointly and severally the applicants' costs, including the cost of two counsel.'

[3] This order was made pursuant to an application by the 14 H appellants/applicants (hereinafter referred to as the 'applicants') against the three respondents, namely the Minister, the Deputy Minister and the Director-General of Home Affairs (hereinafter referred to collectively as the 'respondents' and individually as the 'Minister', the 'Deputy Minister' and the 'DG' respectively) in which the applicants sought an order in the following terms:

'(1)

reviewing and setting aside or correcting the decision of the first respondent to deny the seventh applicant an extension of the I

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exemption granted on 23 April 1997 in terms of s 28(2) of the A 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 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 B 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 respondent, alternatively the third respondent, that special circumstances no longer exist in terms of s 28(2) of the Aliens C 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 terms of s 25(2) of the Aliens Control Act 96 of 1991, as D 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 be inconsistent with the provisions of the Constitution of E 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 96 of 1991, as amended, pending any amendment to the F 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, as amended, pending any amendment to the Aliens Control Act to comply with the provisions of the Constitution of the Republic G 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. H

. . . .'

[4] The applicants have appealed to this Court under the provisions of s 172(2)(d) of the Constitution, [2] seeking a variation of the order granted by the High Court. They have simultaneously applied for confirmation [3] of the whole order, except those parts against which the appeal is brought and 'those parts of the order, if any, which are not subject to confirmation I

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by this Court in terms of ss 167(5) and 172(2) of the Constitution'. The respondents then appealed against the entire A judgment and order of the High Court.

The High Court's refusal of a postponement to the respondents

[5] The respondents did not file any answering affidavits in the B High Court. Less than 24 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 C

'. . . file comprehensive answering affidavits, as this honourable Court would otherwise be left with little assistance regarding the purpose and practical implementation of the statutory provisions in question and the government's reasons for opposing this application. These include issues of ripeness and the meaning, nature and purpose of the fundamental rights on which the applicants rely, any D issues of justification which arise, and the nature of the interim and final relief described in the applicants' heads of argument. . . .'

The High Court refused the application for postponement.

[6] The relevant surrounding facts are detailed in the judgment of the High Court and need not be repeated here; their gist is summarised in the following passage of Davis J's judgment: E

'In this case the respondents were served with the applicants' papers some seven months before the matter came before this Court. 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 F more than seven months. Mr Mokoena's [the DG's] affidavit simply states that the Cabinet decided the day before the hearing that the application should be opposed and that important matters were raised.' [4]

[7] Davis J also correctly pointed out that this Court has made it clear [5] that any evidence that the State considers relevant to an issue of the constitutional invalidity of a statutory G provision ought to be adduced before the High Court first hearing the matter. [6] The learned Judge held that such consideration, however important, did not in itself justify the granting of a postponement, which had to be based on clear principle. Davis J pointed out that no reasons at all had been furnished for the respondents' failure to observe the Rules of Court, that they had H treated their obligations to the Court with disdain and had ignored the rights of the applicants to a resolution of their claims and that accordingly the application had been dismissed. [7]

[8] The respondents sought in this Court to revisit the refusal of this I

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application in two ways. First, they applied on notice of motion for an order with, amongst others, the following terms: A

'1.

Condoning the [respondents'] failure to file their answering affidavit in the Court a quo.

2.

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. B

. . . .'

If the relief sought in para 2 of the above notice of motion were to be granted, their founding affidavit in the application in this Court would stand as answering affidavit in the High Court application. The respondents did not attempt to make out a case, nor argue, for the C reception of the founding affidavit as new evidence on...