Satchwell v President of the Republic of South Africa and Another

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'Regan J, Du Plessis AJ and Skweyiya J
• Judgment Date: 25 July 2002
• Citation: 2002 (6) SA 1 (CC)
• Docket Number: CCT 45/2001
• Hearing Date: 26 February 2002
• Counsel: P R Jammy for the applicant. I A M Semenya SC (with him L T Sibeko) for the respondents.
• Court: Constitutional Court

Madala J: A

Introduction

[1] Sitting in the Pretoria High Court, Kgomo J made the following order in favour of the applicant: [1] B

'1.

Declaring the omission from ss 8 and 9 of the Judges Remuneration and Conditions of Employment Act 88 of 1989 after the word ''spouse'' of the words ''or partner, in a permanent same-sex life partnership'' to be inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996.

2.

Declaring the omission from reg 9(2)(b) and reg C 9(3)(a) of the Regulations in respect of ''Judges, Administrative Recesses, Leave, Transport and Allowances in respect of Transport, Travelling and Subsistence'' (GN R839, 6 June 1995) after the word ''spouse'' of the words ''or partner, in a permanent same-sex life partnership'' to be inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996. D

3.

It is ordered that ss 8 and 9 of the Judges' Remuneration and Conditions of Employment Act 88 of 1989 is to be read as though the following words appear therein after the word ''spouse'': ''or partner, in a permanent same-sex life partnership''.

4.

It is ordered that reg 9(2)(b) and reg 9(3)(a) of the Regulations in respect of ''Judges, E Administrative Recesses, Leave, Transport and Allowances in respect of Transport, Travelling and Subsistence'' (GN R839, 6 June 1995) is to be read as though the following words appear therein after the word ''spouse'': ''or partner, in a permanent same-sex life partnership''.

5.

It is ordered that the respondents pay the costs of the application jointly and severally.' F

[2] In terms of s 172(2)(a) [2] of the Constitution, an order of constitutional invalidity in the High Court has no force and effect unless it has been confirmed by this Court. It is the confirmation of that order which is sought by the applicant in these proceedings. Sections 172(2)(a) and G 167(5) [3] mandate this Court to make orders in relation to the constitutional validity of an 'Act of Parliament, a provincial Act or any conduct of the President'. This Court is directly concerned only with the validity H

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of paras 1 and 3 thereof. As paras 2 and 4 relate to regulations, confirmation of the declaration A of invalidity in relation to them is not required. [4]

Factual background

[3] The applicant, a Judge, challenged the constitutional validity of the provisions of ss 8 and 9 of the Judges' Remuneration and B Conditions of Employment Act 88 of 1989 (the Act) and reg 9(2)(b) and (3)(a) of the Regulations in respect of Judges Administrative Recesses, Leave, Transport and Allowances in respect of Transport, Travelling and Subsistence (the regulations). [5] C

[4] The applicant stated that she and Ms Lesley Louise Carnelley (Ms Carnelley) have been involved in an intimate, committed, exclusive and permanent relationship since about 1986. Although not married (in terms of South African law they are unable to enter into a valid marriage), they live in every respect as a married couple and are acknowledged as such by their respective families and friends. D

[5] As evidence of their emotional and financial inter-dependence, the applicant stated that:

1.

She and Ms Carnelley had completed last wills and testaments in each other's favour. E

2.

In May 1990 they jointly purchased the property on which they currently reside and which is registered in their names.

3.

They live together on this property and consider it to be a family residence.

4.

Ms Carnelley is listed as the beneficiary in all the applicant's insurance and other investment policies; and F

5.

Ms Carnelley is also listed as the applicant's dependant on Parmed, the Parliamentary Medical Aid Scheme, to which Judges subscribe.

[6] The applicant's conditions of service as a Judge are governed by: G

(1)

the provisions of the Constitution;

(2)

the provisions of the Act;

(3)

the regulations; and

(4)

the Parliamentary and Provincial Medical Aid Scheme Act 28 of 1975. H

[7] The challenged provisions are as follows:

1. Section 8 [6] of the Act provides for the payment to the surviving

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spouse of a deceased Judge two-thirds of the salary that would have been payable to that Judge in terms either of A s 5 or s 3(1)(a) of the Act until the death of such spouse.

2. Section 9 [7] of the Act provides for the payment of the gratuity contemplated in s 6 of the Act to the surviving spouse of a deceased Judge or to the estate of the said Judge if he or she is not survived by a spouse. B

[8] The applicant engaged in lengthy correspondence dating from 1997 with the second respondent in an attempt to have the Act and the regulations amended so that her partner could be entitled to the benefits that spouses of Judges receive. The second respondent conceded that the provisions under attack were discriminatory, and said C that he was committed to upholding 'the principles and values of the Constitution' and to removing the discrimination complained of by the applicant. The second respondent implored the applicant to be patient as he intended to redress the situation and to effect the necessary changes. After waiting for two years the applicant decided to D launch an application in the Pretoria High Court, the culmination of which is the present proceedings.

The constitutional issue

[9] At issue in this case is the question whether the claim by the applicant that Ms Carnelley should be entitled to the benefits enjoyed E by the spouses of Judges under the Act should be sustained. The Act restricts the provision of certain benefits to spouses only. There is no definition of

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the word 'spouse' in the provisions under attack. In the circumstances the ordinary wording of the provisions must be taken A to refer to a party to a marriage that is recognised as valid in law and not beyond that. This matter was dealt with in the National Coalition v Home Affairs [8] case where this Court held that the word 'spouse' cannot be read to include a same-sex partner. The context in which 'spouse' is used in the impugned provisions does not suggest a wider meaning, nor do I know of B one. Accordingly, a number of relationships are excluded, such as same- sex partnerships and permanent life partnerships between unmarried heterosexual cohabitants.

[10] The legislation has effectively excluded all those in relationships other than heterosexual marriages from the benefits it C accords to spouses. The question that arises is whether to the extent that the Act restricts benefits to spouses, and does not afford them to same-sex life partners, it is inconsistent with the Constitution.

[11] In this regard the applicant argued that the concept of family underlying the legislation was inconsistent with the values D espoused by the Constitution. Reliance was placed on the judgment of L'Heureux-Dubé J in the Canadian Supreme Court case of Miron v Trudel [9] that:

'Family means different things to different people, and the failure to adopt the traditional family form of marriage may stem from a multiplicity of reasons - all of them equally valid and all of them E equally worthy of concern, respect, consideration, and protection under the law.'

[12] That there are different forms of life partnership has been recognised by this Court. In the National Coalition v F Home Affairs [10] case this Court stated that

' . . . marriage represents but one form of life partnership. 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 G 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 s 25(5) affords protection only to conjugal relationships between heterosexuals and excludes any protection to a life partnership which entails a H conjugal same-sex relationship, which is the only form of conjugal relationship open to gays and lesbians in harmony with their sexual orientation.' [11]

In certain African traditional societies woman-to-woman marriages are not unknown, this being prevalent in families that are childless because I

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the woman is barren or where the woman is in a powerful position in her community, like being a queen or a chieftainness, or A where she is very wealthy. [12]

[13] In respect of the family, this Court [13] has stated that:

'The importance of the family unit for society is recognised in the international human rights instruments referred to above when they B state that the family is the ''natural'' and ''fundamental'' unit of our society. However, families come in many shapes and sizes. The definition of the family also changes as social practices and traditions change. [14] In recognising the importance of the family, we must take care not to entrench particular forms of family at the expense of other forms.'

This observation was prefaced by the following important comment: C

'The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an D important social function. This importance is symbolically acknowledged in part by the fact that...