STATEMENT BY THE DEPUTY MINISTER OF HOME AFFAIRS IN RESPONSE TO THE JUDGMENT OF THE CONSTITUTIONAL COURT IN THE CASE BROUGHT BY THE NATIONAL COALITION FOR GAY AND LESBIAN EQUALITY V THE MINISTER OF HOME AFFAIRS
Issued by: GCIS
2 December 1999
We welcome the Constitutional Court’s view that the judgment is not the final word on the issue and that it fully recognises the right of the Legislature and the Executive to revisit the finding. We are particularly pleased that the Constitutional Court recognised the difficulty the Department had in formulating constitutionally accepted criteria to identify a bona fide "permanent same-sex life partnership."
We are happy that the criteria enumerated by the Court go a long way in mapping out a suitable directive for processing immigration applications of same-sex partners of South African citizens and permanent residents.
It is important to note that the order does not have retrospective effect and that Government’s task has been aided by the guidelines noted in the judgment. It is further important to note that the Constitutional Court recognises that the legislature is empowered to amend or fine-tune any extension that the Court, through its order, might make to the Aliens Control Act, in order to give more accurate effect to its policy, provided it does so in a manner which is not inconsistent with the Constitution.
It should also be noted that the decision to put the matter before the Constitutional Court was taken by Cabinet. The judgment would therefore go back to Cabinet in the New Year to determine a new course of action.
We would like to emphasise that the Department has on a continuous basis been seized with the matter. By limiting itself to the narrow question of same-sex life partnerships within the spectrum of immigration law, the Court provides ample scope for us to continue on the path we already embarked upon which includes having had the wider matter referred to the South African Law Commission.
The Court identified "indispensable" factual considerations, by stating that: "Without purporting to provide an exhaustive list, such facts would include the following: the respective ages of the partners; the duration of the partnership; whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership, what the nature of that ceremony was and who attended it; how the partnership is viewed by the relations and friends of the partners; whether the partners share a common abode; whether the partners own or lease the common abode jointly; whether and to what extent the partners share responsibility for living expenses and the upkeep of the joint home; whether and to what extent one partner provides financial support for the other; whether and to what extent the partners have made provision for one another in relation to medical, pension and related benefits; whether there is a partnership agreement and what its contents are; and whether and to what extent the partners have made provision in their wills for one another. None of these considerations is indispensable for establishing a permanent partnership. In order to apply the above criteria, those administering the Act are entitled, within the ambit of the Constitution and bearing in mind what has been said in this judgment, to take all reasonable steps, by way of regulations or otherwise, to ensure that full information concerning the permanent nature of any same-sex life partnership, is disclosed."
Justice Ackerman defined "permanent" in this context as meaning an established intention of the parties to cohabit with one another permanently. We welcome the finding of the Constitutional Court that government has the right to follow strict criteria in preventing abuse of its immigration laws.
As the Court pointed out: "The family unit of a same-sex life partnership is different from the family unit of spouses and to treat them identically might in fact, in certain circumstances, result in discrimination. Spouses in a conventional marriage are in a legal relationship acknowledged by the law in a particular way and the existence of the conventional marriage is capable of easy and virtually incontestable proof; the legal relationship can also not be terminated without the intervention of the courts. Same-sex life partnerships are as yet not recognised or protected in a comparable manner by the law. In order to ensure equal protection and non-discrimination for persons in such different family units it might be necessary to treat them differently."