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

• Jurisdiction: South Africa

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1 (CC)

2000 (2) SA p1

Citation	2000 (2) SA 1 (CC)
Case No	CCT 10/99
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Ackermann J, Cameron AJ, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J
Heard	August 17, 1999
Judgment	December 2, 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.

Flynote : Sleutelwoorde B

Appeal — Generally — Power of Court of appeal — Appeal against refusal C of postponement — Court of appeal not entitled to set aside decision of lower Court granting or refusing a postponement in exercise of its discretion merely because Court of appeal would have come to different conclusion — Court of appeal can only interfere when lower court had not exercised discretion judicially, been influenced by wrong principles or misdirection on facts or decision reached cannot reasonably have been D made by court properly directing itself.

Immigration — Aliens — Permanent residence permit in terms of s 25 of Aliens Control Act 96 of 1991 — Application for — Meaning of 'spouse' in s 25(5) of Act — 'Spouse' not defined in Act, but ordinary meaning connoting 'married person; a wife, a husband' — Context in which E 'spouse' used in s 25(5) not suggesting wider meaning and not reasonably capable of broad construction to include partners in permanent same-sex life partnerships.

Constitutional practice — Parties — Locus standi — Right to challenge constitutionality of s 25(5) of Aliens Control Act 96 of 1991 — Subsection discriminating against partners in same-sex life partnerships — Failure of Act to grant any recognition at all to F same-sex life partnerships impacting in same way on South African partners as on foreign-national partners — Case can and ought to be decided on basis of whether s 25(5) unconstitutionally limiting rights of South African partners — On objective theory of unconstitutionality, foreign nationals entitled to rely on any unconstitutional G

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infringement of rights of South African partners brought about by failure of Act A to grant recognition to same-sex life partnerships.

Immigration — Aliens — Permanent residence permit in terms of s 25 of Aliens Control Act 96 of 1991 — Application for — Section 25(5) affording protection only to conjugal relationships between heterosexuals and excluding any protection to life partnership which entails conjugal same-sex relationship — Discrimination in s 25(5) constituting B overlapping or intersecting discrimination on grounds of sexual orientation and marital status, both specified in s 9(3) and presumed to constitute unfair discrimination by reason of s 9(5) of Constitution of the Republic of South Africa Act 108 of 1996 — No rational connection between exclusion of same-sex life partners from benefits under s 25(5) and government interest — Section 25(5) C accordingly constituting unfair discrimination and serious limitation of s 9(3) equality right of homosexuals who are permanent residents in Republic and in permanent same-sex life partnerships with foreign nationals — Section 25(5) simultaneously constituting severe limitation of s 10 right to dignity enjoyed by such homosexuals — As no interest on other side balancing process, provisions of s 25(5) inconsistent D with Constitution and invalid.

Constitutional law — Human rights — Right to equality before the law and not to be unfairly discriminated against in terms of s 9 of Constitution of the Republic of South Africa Act 108 of 1996 — Determining factor regarding unfairness of discrimination is impact of discrimination on complainant — Important factors to be E assessed are position of complainants in society and whether they have suffered in past from patterns of disadvantage; nature of provision or power and purpose sought to be achieved by it; and extent to which discrimination affects rights or interests of complainants and whether it leads to impairment of fundamental human dignity or constitutes F impairment of comparably serious nature.

Constitutional practice — Courts — Powers of — Where Court has declared law or provision thereof inconsistent with Constitution of the Republic of South Africa Act 108 of 1996 — Where invalidity of statutory provision resulting from omission not possible to achieve notional severance by using expressions indicating notional severance — Omission not curable by severance — Only logical equivalent to severance is G reading in — Reading in can be appropriate form of relief under s 38 of Constitution and whether Court reads in or strikes out words from challenged law focus should be on appropriate remedy not on label used to arrive at result.

Constitutional practice — Courts — Powers of — Where Court has declared H law or provision thereof inconsistent with Constitution of the Republic of South Africa Act 108 of 1996 — In fashioning declaration of invalidity Court to keep in balance obligation to provide appropriate relief under s 38 of Constitution and principle of separation of powers and deference Court owes to Legislature in devising remedy for breach of Constitution in any particular case — In deciding whether I words to be severed from or read into provision, careful attention to be paid to need to ensure that provision resulting from severance or reading of words into statute consistent with Constitution and its fundamental values and that result achieved would interfere with laws adopted by the Legislature as little as possible — Not appropriate to read words in unless in so doing Court defining with J

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precision how statute ought to be extended in order to comply with A Constitution — Court to endeavour to be as faithful as possible to legislative scheme within constraints of Constitution.

Headnote : Kopnota

The applicants had brought an application in a High Court for an order, inter alia, declaring s 25 of the Aliens Control Act 96 of 1991 (the Act) to be inconsistent with the Constitution of the B Republic of South Africa Act 108 of 1996 on the basis that it discriminated against partners in permanent same-sex life partnerships, C in that s 25(5) of the Act provided for an exemption from the provisions of s 25(4) for the spouse of a person permanently and lawfully resident in the Republic, which by implication did not extend the exemption to partners in permanent same-sex life partnerships. At the hearing before the High Court the respondents, who had not filed answering affidavits despite a lapse of seven months, asked for a postponement the day before the hearing in order to file such affidavits. The High Court, in the exercise of its discretion, refused the postponement. The respondents sought to attack this decision in the Constitutional Court, averring that the High Court had erred in exercising its discretion to refuse the postponement. D

Held, that a Court of appeal was not entitled to set aside the decision of a lower court granting or refusing a postponement in E the exercise of its discretion merely because the Court of appeal, on the facts of the matter before the lower court, would have come to a different conclusion; it could interfere only when it appeared that the lower court had not exercised its discretion judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which could not reasonably have been made by a court properly directing itself to all the relevant facts and principles. What the respondents had sought did not meet this test because they had alleged only an error in the exercise of its discretion by the High Court. (Paragraph [11] at 14A/B - C/D.) F

Held, further, that, on the facts, the High Court had not erred in refusing the postponement. (Paragraph [12] at 14C/D - D.)

Held, further, that 'spouse', as used in s 25(5), was not reasonably capable of a broad construction to include partners in permanent same-sex life partnerships. The word 'spouse' was not defined in the Act, but its ordinary meaning connoted a 'married person; a wife, a husband'. The context in which 'spouse' was used G in s 25(5) did not suggest a wider meaning. There was also no indication that the word 'marriage' as used in the Act extended any further than those marriages that were ordinarily recognised by the law. (Paragraph [25] at 20D/E - F/G.)

Held, further, that the failure of the Act to grant any recognition at all to same-sex life partnerships impacted in the same way on South African partners as it did on foreign-national partners. The present case could and ought to be decided on the basis of whether H s 25(5) unconstitutionally limited the rights of South African partners. On the objective theory of unconstitutionality a litigant who had standing was entitled to rely on the objective unconstitutionality of a statute for the relief sought, even though the right unconstitutionally infringed was not that of the litigant in question I but of some other person. Thus foreign nationals were entitled to rely on any unconstitutional infringement of any of the rights of South African partners which had been brought about by the failure of the Act to grant any recognition to same-sex life partnerships. (Paragraphs [28] and [29] at 22B/C - C/D and E/F - G/H.)

Held, further, that s 25(5) afforded protection only to conjugal relationships between heterosexuals and excluded any protection to a life partnership J

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relationship, which was the only form of conjugal relationship open to homosexuals in harmony with their sexual orientation. (Paragraph [36] at 25B - C.)

Held, further, that the discrimination in s...