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IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case No. 3988/98

QUICK-LINKS

In the matter between:

NATIONAL COALITION FOR GAY AND LESBIAN EQUALITY & 13 OTHERS, First Applicant

SVEN PATRIK ALBERDING, Second Applicant

FIONA JANE LIEBE SAUNDERS WATSON, Third Applicant

MALCOLM CLIVE NORTH, Fourth Applicant

FRANCK AND CHARLES JOLY, Fifth Applicant

LINDA AOUDIA, Sixth Applicant

ARGYRIS SOTIRIS ARGYROU, Seventh Applicant

CLINT LEWIS TATCHELL, Eighth Applicant

LUCINDA SLINGSBY, Ninth Applicant

STEVEN MARK LE GRANGE, Tenth Applicant

HILTON MARC KAPLAN, Eleventh Applicant

CHRISTINE HAZEBROUCQ, Twelfth Applicant

JACOBUS JOHANNES DE WET STEYN, Thirteenth Applicant

THE COMMISSION FOR GENDER EQUALITY, Fourteenth Applicant

and

THE MINISTER OF HOME AFFAIRS, First Respondent

THE DEPUTY MINISTER OF HOME AFFAIRS, Second Respondent

THE DIRECTOR-GENERAL OF HOME AFFAIRS, Third Respondent

___________________________________________________________________

JUDGMENT

___________________________________________________________________

DAVIS J:

INTRODUCTION

The first applicant is a voluntary association representing gay, lesbian, bi-sexual and transgendered people in South Africa. Since 25 April 1996 it has engaged in consultations with respondents concerning provisions of the Aliens Control Act 96 of 1991 (as amended) (91the Act 92) which it considered discriminates against members of its constituency. In particular, the first applicant has been concerned with the wording of section 25 (5) of the Act in that the definition of 91spouse 92 contained therein excludes life partners. In its view this section is unconstitutional.

Second to seventh applicants each made application for a renewed exemption from the provisions of the Act in terms of section 28(2) thereof. These applications were refused by the respondents.

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

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 "subject to the provisions of section 28 and 29, no alien shall-

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

 

2. 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 section 26."

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 section 24 of the Act, (sections 25(1) and (2)). Section 25(3) empowers the regional committee concerned to authorise the 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

(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

undertakes in writing to maintain him or her."

Sub-section (5) provides that, "notwithstanding the provisions of sub-section (4) but subject to the provisions of sub-section (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 Republic, authorise the issue of an immigration permit".

Sub-section (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 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 sub-section (6) in that it empowers the Minister to withdraw an immigration permit issued in terms of section 25 where the holder "obtained the permit on the basis of a marriage entered into less than two years prior to the date of issue of a permit, and such marriage is judicially annulled or terminated within two years subsequent to the said marriage, 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 regional committee which takes account of a number of factors specified in section 25(4). Notwithstanding these factors, however, a regional committee may issue an immigration permit to a spouse or a dependant child of a permanent and lawful resident in the Republic. In the case where a permit is issued to a spouse, the committee must be satisfied that the issue of the permit would not be in 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 section 28(2) the Minister of Home Affairs may, if he or she is satisfied that there are special circumstances to justify the decision, "exempt any person or category of persons from the provisions of section 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 section 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 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 section 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.

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 section 28(2) of the Act. Between April and November 1997 respondents granted at least thirteen exemptions in terms of section 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

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

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 exercising the powers of exemption under that Act. In view of the above consideration it has been decided not to grant exemptions under section 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 terms of section 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 immigration permit in terms of section 28(2).

On 9 January 1998 third respondent replied to these and other applications and confirmed its initial view by stating that "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 section 28(2) of the Act merely to accommodate alien partners in same sex relationships"

On 16 January 1998 second applicant was advised that the Department of Home Affairs would not accept an application for an immigration permit based on the existence of a same sex relationship. On 10 March 1998 sixth applicant was served with a deportation order in consequence of the refusal of her application for exemption in terms of section 28(2). After the intervention of first applicant sixth applicant was granted a three month tourist visa.

The applicants have come to court on two bases:

APPLICATION FOR POSTPONEMENT

Less than twenty-four hours before the matter was to be heard by the court respondents delivered an application for the postponement of the hearing to a date to be determined on such terms and conditions as the court might deem fit. The application was accompanied by an offer that the status quo with regard to second to thirteenth applicants persist to the final determination of the matter.

In his affidavit third Respondent set out the reason for applying for a postponement thus:

On 4 June 1998 the respondents’ attorney replied to the effect that the matter had been referred to his client for the taking of further instructions; upon receipt of such instructions he would communicate further with applicants’ attorney.

Nothing happened, as a result of which applicants’ attorney wrote further letters on 1 July 1998 and 17 July 1998 expressing concern that respondents had not served their answering affidavits in relation to the constitutional issues raised. Once more the letter was met by silence on the part of the respondents, and applicants’ attorney persisted in expressing concern about the delay on the part of the respondents in delivering their answering affidavits with regard to the statement of case. On 14 September 1998 the respondents’ attorney replied once more to state "The matter has once again been taken up with client on an urgent basis and I will revert to you in this regard as soon as possible". Nothing further was heard from the respondents’ attorney. The applicants’ attorney again wrote letters on 6 October 1998, 7 October 1998 and 13 October 1998 in an attempt to obtain a worthwhile reply from the respondents.

In arguing in favour of a postponement, Mr Hodes who appeared together with Mr Breitenbach on behalf of respondents, relied heavily upon the principles set out in Myburgh Transport v Botha t/a S/A Truck Bodies 1991 (3) S A 310 (NmS) at 314-315 and, in particular, on the following passage from the judgment of Mohamed AJA:

Mr Hodes submitted that the tender of attorney and client costs by respondents and confirmation that the status quo would continue until the final determination of the matter, made fair amends for any possible prejudice which the applicants might suffer. He further submitted that it was in the interests of justice that the organ of state responsible for administering the impugned Act should produce evidence before the court first seized of the matter where such evidence is relevant to the validity of the provision in question and particularly to the justifiability of any infringement of fundamental rights which might be established.

As Ackermann J said in Parbhoo and Others v Getz NO and Another 1997(10)BCLR 1337 (CC) at 1341 F. "It might be necessary for the Court first seized of the matter to hear evidence for purposes of deciding the issue of invalidity. That is the appropriate stage for the relevant organ of state to be afforded an opportunity of adducing such evidence, otherwise the issue might only arise when the order of invalidity is before this Constitution (sic read court) for confirmation. This would cause unnecessary delay and inconvenience"

In a constitutional dispute of this nature, the evidence adduced by an organ of state can be of considerable assistance to the court. That in itself is not however a sufficient ground for granting a postponement. A proper case for a postponement must be brought before the court so that it can justify the granting of the application on the basis of clear principle.

The principle on which Mr Hodes relied was that an application for postponement should be granted, notwithstanding that it was not made timeously or that the proper procedures had not been followed but where justice nevertheless justifies such a postponement in the particular circumstances of the case. (Myburgh Transport at 315H).

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 more than seven months. Mr Mokoena’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. An affirmation of an intention to defend cannot serve as an explanation for tardy behaviour. Furthermore, an applicant cannot as of right claim a postponement on the ground that any prejudice his opponent might suffer can sufficiently be overcome by an appropriate order as to costs. On the authority of the judgment in Estate Norton v Smerling 1936 OPD 44, the authors of Herbstein and van Winsen, The Civil Practice of the Supreme Court of South Africa (4th ed) at 667 submit that the discretion of the court is far more limited when an application for postponement is brought by the defendant than in the case where the plaintiff, as dominus litis, brings such an application.

The implication of Mr Hodes’s argument is that when the state is involved the court should show greater latitude in granting such postponements particularly in the case of an important constitutional dispute. This argument loses sight of the consideration that no litigant, whether the state or a subject of the state, is entitled to a postponement if no reason whatsoever for its failure to observe the rules of court has been shown.

The date for this hearing had been arranged between the parties early this year, in consultation with the judge president. That special arrangement has, without explanation, been ignored. Much as this court would have wished to have the views of government before it, it cannot condone the disdain with which the respondents have treated their obligations to the court. Section 237 of the Constitution of the Republic of South Africa Act 108 of 1996 provides that all constitutional obligations must be performed diligently and without delay. Were there to be a constitutional obligation upon the respondents to treat applicants with the same concern and respect due to married persons, such an obligation should be performed without delay and respondents should have acted so as to expedite the resolution of this matter rather than to delay it. Furthermore in terms of section 7(2) the State must respect, protect, promote and fulfil the rights in the Bill of Rights. By attempting to postpone this matter and thus cause further delay, the applicants might suffer an extended period of anxiety. There was no reason which could be justified on principle for granting the postponement and accordingly it was refused.

RIPENESS AND MOOTNESS

Having failed in its application for a postponement, respondents submitted that the constitutional issue raised by this matter was never "ripe" and, in any event, it was "moot". As Chaskalson et al Constitutional Law of South Africa 8-15 submits:

Mr Breitenbach, who argued this aspect of the matter, submitted that all the applicants were seeking spouses’ immigration permits in terms of section 25(5). Decisions to issue such immigration permits were not taken by the Director General but by the relevant regional committee of the Immigrants Selection Board. (Sections 25(3 - 5) of the Act).

On the facts before the Court, the only action that had to be taken by respondents concerned decisions of granting or extending exemptions in terms of section 28(2) of the Act, from the requirement for an immigration permit as imposed by section 23(a). Thus the regional committee in question had not been seized of an application for an immigration permit by any of the applicants and consequently had not considered any such application whether in terms of section 25(5) of the Act or otherwise. For this reason, Mr Breitenbach submitted, that applicants had prematurely sought an order declaring section 25(5) of the Act to be unconstitutional and invalid.

Mr Breitenbach submitted that, in terms of section 39(2) of the Constitution, a regional committee could conceivably interpret ‘spouse’ to include a life partner and hence authorise the issue of immigration permits to such an applicant. If this were to happen there would be no basis upon which applicants could seek to have section 25(5) declared unconstitutional.

It thus followed that the court could not rule on the constitutional question as the dispute did not, at the stage of the hearing, raise a live constitutional issue. Zantsi v The Chairman of the Council of State, Ciskei 1995(4) SA 615(CC) at para 2 - 6.

Section 39(2) of the Constitution provides that when interpreting any legislation, and when developing the common law, and customary law, every court, tribunal or forum must promote the spirit purport and objects of the Bill of Rights. Mr Breitenbach, in my view, correctly conceded that, absent this provision of the Bill of Rights, the meaning of spouse as contained in section 25(5) of the Act would be unambiguous and clear. His argument was that a tribunal such as a regional committee could alter these unambiguous words so as to render the meaning thereof compatible with the Constitution.

Section 39(2) refers to the interpretation of legislation and the development of the common law or customary law. As Chaskalson et al observes at 11-9 there are important differences between interpretation and development. Interpretation concerns the giving of meaning to words as they appear within the context of a piece of legislation. A rule of common law may be incompatible with a fundamental right in a manner which is not amenable to mere interpretative treatment. The rule may then require a development, even a far reaching development, in order to render it compatible with the Bill of Rights. Mr Breitenbach would have the regional committees develop the legislation rather than interpret it in order to obtain the result which he suggests is possible. This task patently falls outside the scope of a body such as a regional committee of the Immigrants Selection Board. If the wording of the section is unambiguous and clearly constitutionally invalid it cannot be saved by an intricate process of ‘reading in’ by a ‘forum’ such as the regional committee. For this reason I am satisfied that the dispute was ripe for hearing.

Mr Breitenbach submitted that, in any event, the constitutional issue was moot. The application to set aside the decision of the Director-General refusing to grant or extend the exemptions in terms of section 28(2) was not opposed. From a practical point of view, an order to that effect would extend the exemptions in terms of section 28(2) which had been granted by third respondent. "Same sex partners" could then apply, possibly from within the Republic, for an immigration permit in terms of section 25(5) of the Act or for an ordinary immigration permit in terms of section 25(4) of the Act. However, for the reasons set out in dismissing the argument in respect of ripeness, it is not possible for such an application to be made in terms of section 25(5) without a determination as to the constitutional validity of the section. In addition as Mr Trengove, who appeared together with Mr Katz on behalf of the applicants, argued, para 5 of the notice of motion asks for an order declaring section 25 of the Act to be inconsistent with the provisions of the Constitution and therefore invalid to the extent of its inconsistency. As the application has been brought not only on behalf of second to thirteenth applicants but as a class action by first applicant, the court is required to make a decision as to whether an order in terms of paragraph 5 should be granted. For these reasons I would reject the argument about mootness.

THE APPLICATION TO SET ASIDE S.25

The primary focus of the application was on the preferential treatment afforded to the spouses of citizens and permanent residents in terms of section 25(5). This section is limited to foreigners married to South Africans under civil law or customary law and does not extend to the foreign partners of South Africans in other forms of life partnerships such as same sex partnerships, common law marriages and Muslim and Hindu marriages. Nevertheless, applicants brought their application on the basis that the exclusion of same sex partnerships from the benefit of section 25(5) was unconstitutional.

THE CONSTITUTIONAL VALIDITY OF SECTION 25(5)

There is no definition of the word ‘spouse’ in the Act. It was common cause that upon an application of the ordinary wording of the provision spouse should be understood to refer to a party to a marriage recognised as valid in law. This conclusion finds further support in section 1(1) of the Act which defines marriage to include a customary union. A customary union is defined in section 1(1) as the association of a man and a woman in conjugal relationship according to indigenous law and custom, provided that neither of them is a party to a subsisting marriage and their association is recognised by the Minister.

Section 1(2) requires the Minister to recognise a customary union for the purposes of the Act if he or she is satisfied on information submitted by the applicant and the person alleged to be the applicant’s spouse in the customary union that the applicant is in fact a spouse in the customary union in question. These provisions make it clear that a customary union recognised by the Minister is regarded as a marriage. The parties to such a union are regarded as spouses.

Furthermore these provisions proceed on the premise that a spouse is a party to a marriage recognised as valid in law. It is only by virtue of these provisions that the meaning of spouse is extended to include parties to a customary union. This would have been superfluous if the expression ‘spouse’ already included a party to a customary union.

Section 25(6) empowers a regional committee to refuse an immigration permit to a foreign applicant who has entered into a marriage with a South African permanent resident less than two years prior to the date of application for the permit unless it is satisfied that such marriage was contracted to evade any provision of the Act (my emphasis). It is thus clear that an immigration permit may be refused to a foreigner who becomes a "spouse" as a result of a marriage of convenience. Once more the concept of "spouse" is linked to that of marriage. A further safeguard against the issue of a permit pursuant to a marriage of convenience is contained in section 30(2)(e) which empowers the Minister to withdraw an immigration permit issued on the basis of a marriage of less than two years standing, if the marriage is annulled or terminated within two years after the immigration permit had been issued unless the Minister is satisfied that it was not a marriage of convenience. It follows from this analysis that, other than

spouses who have been married or are part of a customary union, all forms of conjugal life partnerships are excluded from the preferential treatment conferred in terms of section 25(5).

Accordingly applicants submitted that this form of preferential treatment sanctioned by section 25(5) constituted a violation of the constitutional rights of equality, dignity and freedom of movement.

EQUALITY

Section 9(1) of the Constitution guarantees equality. It provides that everyone is equal before the law and has the right to equal protection and equal benefit of the law. Section 9(3) provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth. The relationship between these sub-sections has been canvassed in a line of decisions by the Constitutional Court, most notably in Prinsloo v Van der Linde 1997(3) SA 1012(CC); The President of the Republic of South Africa v Hugo 1997(4)SA (CC); Harksen v Lane 1998(1)SA 300(CC) Pretoria City Council v Walker 1998 (2)SA 263(CC), The National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and others, ((the ‘Sodomy’ case) unreported judgment of the Constitutional Court delivered on 9 October 1998 in case CCT 11/98.)

The Constitutional Court has set out the basis of an enquiry into whether there has been a violation of section 9 as follows:

1. Does the law violate section 9(1)? To determine this, two further questions need to be answered namely,

a) does the law differentiate between people or categories of people and if so

b) does the differentiation bear a rational connection to a legitimate government purpose?

If differentiation does occur in circumstances where there is no rational connection to a legitimate government purpose there has been a violation of section 9(1).

2. Notwithstanding a rational connection, the law may amount to discrimination in which case a further two questions need to be asked -

a) does the differentiation amount to discrimination

b) if the differentiation amounts to discrimination does it amount to unfair discrimination.

This two stage test is not inflexible. As Ackerman J said in the Sodomy case,

"This does not mean, however, that in all cases the rational connection enquiry of stage (a) must inevitably preceed stage (b). The stage (a) rational connection enquiry would be clearly unnecessary in the case in which a court holds that the discrimination is unfair and unjustifiable. I proceed with the enquiry as to whether the differentiation on the ground of sexual orientation constitutes unfair discrimination. Being a ground listed in section 9(3) it is presumed, in terms of section 9(5), that the differentiation constitutes unfair discrimination "unless it is established that the discrimination is fair". Although nobody in this case contended that the discrimination was fair, the court must still be satisfied, on a consideration of all the circumstances, that fairness has not been established" (at para 18).

Section 25(5) differentiates on the ground of sexual orientation. It protects those who are married and withholds its protection from those who are not. Heterosexual life partners are at least permitted by law to marry whereas gay and lesbian life partners are not permitted by law to do so. As sexual orientation is a ground listed in section 9(3) it is presumed, in terms of section 9(5), that the differentiation constitutes unfair discrimination unless it is established that the discrimination is fair.

The nature of unfairness was described by Goldstone J in Hugo (supra) as follows:

"At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups".(at para 41).

"Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetuates the view that gays and lesbians are less worthy of protection as individuals in Canada’s society".(at 42-43)

The Constitution seeks to promote a society in which diversity of identity is respected and protected. In other words, the constitution seeks to transform the nature of the boundaries which previously determined the character of the South African community. See Carl F Stychin A Nation by Rights (1998) at 3-14

The Act fails to meet this imperative. Section 25(5) prefers certain forms of life partnership over others. In doing so, it grants legal recognition to certain styles of life and confirms the legal rejection of others. In the context of the constitutional commitment to a plurality of identity and that everyone should be treated with equal concern and respect it must follow that section 25(5) cannot be justified on the grounds of fairness.

It discriminates in favour of certain forms of life partnership to the exclusion of all others and thus operates to perpetuate patterns of discriminatory stereotyping and prejudice. In short, the manner in which section 25(5) differentiates on the grounds of sexual orientation is both unfair and unjustifiable. The stage of rational correction enquiry is unnecessary in order to arrive at this conclusion. Indeed, the respondents did not contest the discriminatory nature of section 25(5), at least as far as same sex life partnerhips were concerned.

For these reasons, section 25(5) breaches the equality guarantee of section 9. Given this finding it is not necessary to examine the alternative bases for the lack of constitutionality of section 25(5) which were raised by Mr Trengove, namely the breach of dignity and freedom of movement.

At this stage of the constitutional enquiry respondents must bear the onus of pleading and proving justification in terms of section 36(1) of the Constitution. Unfortunately, owing to the tardy conduct of the respondents this court was deprived of the benefit of evidence which respondents could have placed before the Court to justify a limitation of rights under section 9. There was no evidence before the court to suggest that this breach of the guarantee against discrimination on the grounds of sexual orientation could possibly be justified. As Mohamed DP (as he then was) said in Fraser v Children's Court, Pretoria North 1997(2)SA 261(CC)

"the guarantee of equality lies at the very heart of the Constitution (and) it permeates and defines the very ethos on which the Constitution is premised" (at para 20).

A breach of this right can only be sanctioned if there is a clear and sustainable justification therefor. This becomes a more difficult onus to discharge in the case of foundational values such as equality. To consider a limitation to be viable, it would have to represent in the first place an important purpose.

As Mr Trengove correctly noted, the purposes of any distinction cannot be to protect monogamist life partnerships because the definition of marriage includes polygamous customary unions. It cannot be said to protect hetero-sexual life partnerships for as Iacobucci J said in Egan v Canada (1995) 29CRR(2 d) 79 (SC)

"it eludes me how according same sex couples the benefits flowing to opposite sex couples in any way, inhibits, dissuades or impedes the formation of hetero-sexual unions. Where is the threat? In the absence of such a threat, the denial of the section 15 rights of same sex couples is anything but proportional to the policy objective of fostering hetero-sexual relationships".(at 156).

The respondents not having tendered any evidence, nothing was placed before this court which indicated a purpose of such importance to justify the violation of section 9 of the Constitution.

Given the nature of the relief sought and the absence of submissions on the substantive issues by respondents, this finding is confined strictly to the unconstitutional exclusion of same sex life partnerships. It may be unconstitutional to include other conjugal relationships not presently recognised as valid by law. But other considerations may apply, in particular factors which in terms of s 36(1) could justify the limitation of the rights contained in section 9.

THE APPROPRIATE REMEDY

Having concluded that section 25(5) of Act is inconsistent with the Constitution, it is necessary to make an order in terms of section 172 of the Constitution.

Section 172(1) of the Constitution provides that when deciding a constitutional matter within its power, the court - must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

1.  may make any order that is just and equitable, including

a.  an order limiting the retrospective effect of the declaration of invalidity;

b.  an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

Section 172(2)(a) provides that the supreme court of appeal, high court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President but an order of constitutional invalidity has no force unless it is confirmed by the constitutional court. (See also section 167(5) of the constitution).

In terms of this section the first issue to decide is whether the law or conduct is inconsistent with the Constitution and thus invalid to the extent of this inconsistency. Having so decided, the court has a discretion to make any order which it considers to be just and equitable including an order limiting the retrospective effect of its declaration and an order suspending the declaration of invalidity for any period and on any conditions to allow the competent authority to correct the defect.

Whilst an order of a High Court concerning the constitutional validity of an Act of Parliament remains a ‘limping’ order in that it must be confirmed by the constitutional court, the court should frame its order in such a manner that were it to approve thereof all that would remain for the constitutional court would be to confirm it. Thus section 172(1)(b) empowers the high court to make an order which would limit the retrospective effect of its declaration and effectively put parliament on terms to cure the defect.

READING IN

Although in his written argument Mr Trengove only canvassed the possibility of ‘reading in’ so as to interpret section 25 to apply to spouse or life partner within the context of interim relief, the possibility of ‘reading in’ as opposed to a declaration of invalidity was canvassed more generally during oral argument.

It is thus necessary to deal with this issue. ‘Reading in’ means adding words to the legislation. This is a different process from "reading down" where a plausible interpretation in conformity with the Constitution is available. Chaskalson et al at 9-7. Although the possibility of reading in has only been canvassed by our courts in a minority judgment by Makgoro J in Case v the Minister of Safety and Security 1996(3) SA 617(CC) at para 74, the Canadian courts have been more willing to consider the possibility. See, for example, Schachter v Canada (1992) 10 CRR (2d) 1(SC), Vriend v Alberta (supra). To this end Mr Trengove placed considerable reliance on Vriend’s case, the facts of which were as follows:

The Canadian Individual Rights Protection Act 1980 prohibits discrimination in a number of areas of public life However, sexual orientation was not included in the list of prohibited grounds of discrimination. After appellant’s term of employment was terminated because of his non compliance with his employer’s policy on homosexual practices, he attempted to file a complaint with the Alberta Human Rights Commission on the grounds that his employer discriminated against him because of his sexual orientation. He was advised that he could not make a complaint under the Act because it did not include sexual orientation as a protected ground.

Iacobucci J held that when determining whether the remedy of ‘reading in’ is appropriate, courts must have regard to the twin guiding principles of "respect for the role of the Legislature and respect of the purposes of the Charter" (at 55). These twin guiding principles "can only be fulfilled if due consideration is given to several additional criteria which further inform the determination as to whether the remedy of reading in is appropriate. These include remedial precision, budgetary implications, effect on the thrust of the legislation, and inteference with legislative objectives" (at 56). As to the question of remedial precision Iacobucci J said "the court must be able to define with a "sufficient degree of precision" how the statute ought to be extended in order to comply with the Constitution. I do not believe that the present case is one in which this court has been improperly called upon to fill in large gaps in the legislation. Rather, in my view, there is remedial precision insofar as the insertion of the words "sexual orientation" into the prohibitive grounds of discrimination listed will, without more, insure the validity of the legislation and remedy the constitutional wrong" (at 56).

The question of remedial precision is directly related to respect for the role of the legislature. Unless ‘reading in’ can be effected with precision, the court runs the risk of becoming the legislative drafter and accordingly displacing the legislature from its constitutional position.

In this case there is no such remedial precision. Were the court to read the reference to "spouse" to mean "spouse or same sex life partner," this would have the effect, not merely of extending section 25(5) but also of affecting the meaning of section 25(6) and section 30(2)(e) which have been analysed above. Mr Trengove suggested that the meaning of "same sex life partner" connotes a measure of permanence and hence provisions dealing with marriages of less than two years and which were entered into for the purpose of evading the provision of the Act would be of no relevance to life partners, so defined. In itself this indicates that, unlike "sexual orientation," "life partner" requires a fairly detailed definition as to its meaning and scope. In his founding affidavit first applicant set out the meaning of same sex life partnership thus: a) the existence of a same sex domestic partnership (b) the partners live together or in the case of a partner not yet resident in the Republic, the intention to live together, c) both partners jointly occupy, rent, lease the property where they reside, (d) there is a mutual obligation of support, (d) neither party is involved in another domestic partnership. These difficulties of definition compel a conclusion that ‘reading in’ of "same sex life partner" is not appropriate in the circumstances of this Act.

Parliament may even wish to import certain safeguards as it has with

a) customary unions, namely to make the union subject to approval by the Minister; or

b) destitute, aged or infirm members of a lawful residents family, namely that the lawful resident must be able and undertake in writing to maintain such person.

These forms of differentiation may be justifiable but we are not required to consider this issue. However to read in the words "same sex life partners" to S 25(5) after the word "spouse" in the absence of such safeguards may interfere with the objective of the legislature which is the control of the admission of foreigners to South Africa; hence the safeguards.

Accordingly, the case of Vriend is distinguishable and a simple order which reads in the words "same sex life partner" or one which has the effect thereof is not appropriate.

THE DECLARATION OF INVALIDITY

Section 25(5) is not inconsistent with the constitution in what it does but rather in what it fails to do. For the purpose of this case, it is my view that it is unconstitutional only to the extent that the benefit it confers on spouses does not extend to same sex life partners. The question which arises in such a case is whether the declaration of invalidity of a section which does not go far enough invalidates the entire section. In such circumstances the wording of section 172(1)(a) implies that the Court has the power to declare only part of the section to be unconstitutional if it considers that only a part of the section is inconsistent with the Constitution. This was the approach adopted in Parbhoo and others v Getz NO and Another 1997 (10)BCLR 1377(C) at paras 1-2.

In this case however it is the omission of words rather than the express wording of part of the section itself which renders the provision inconsistent with the Constitution. Were a declaration of invalidity to provide that the section is inconsistent with the Constitution to the extent that it confers an exclusive benefit on spouses and hence discriminates on the grounds of sexual orientation, the rest of the section could remain valid. Thus spouses as defined in terms of the Act at present would continue to enjoy a benefit.

The alternative would be to find section 25(5) of the Act invalid to the extent that the exclusive benefit it confers upon spouses is inconsistent with section 9(3) of the Constitution and hence declare the section in its entirety to be invalid. Neither alternative is entirely satisfactory but it appears preferable to frame the declaration of invalidity so as to save a legitimate purpose (that is, acknowledging the importance of some forms of permanent relationships) rather than to deny a benefit to all who deserve it. But this perpetuates discrimination in respect of certain forms of permanent relationships. Thus legislative action is required to remedy the position and ensure that no unjustified discrimination is permitted by the Act.

For this reason, I propose that the declaration of invalidity be suspended for a period of one year in terms of section 172(1)(b)(ii) to enable parliament to correct the defect in the provision. (For a similar approach see Fraser v Children’s Court, Pretoria North and Others 1997(2)BCLR 153(CC) at para 51). Since the declaration has no effect until it is confirmed by the constitutional court, the period of one year should run from the date of confirmation by that court.

In terms of section 172(1)(b) the Court is empowered to make any order that is just and equitable. It would not be just and equitable if during the period within which parliament is given time to cure the defect, respondents could discriminate against same sex life partners in terms of a provision which has now been declared to be constitutionally invalid. Accordingly it is just and equitable to declare that the exclusion of life partners other than spouses from the benefits conferred by section 25(5) of the Act constitute special circumstances requiring the grant of an application for exemption made in terms of section 28(2) of the Act by a same sex life partner other than a spouse of a person permanently and lawfully resident in the Republic. This order should continue to be of force and effect during the twelve month period in which parliament has been permitted to correct the defect.

THE ORDER

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

2. the declaration of invalidity of section 25(5) is suspended for a period of twelve months from the date of confirmation of this order to enable parliament to correct the inconsistency;

3. the exclusion of same sex life partners from the benefits conferred by section 25(5) of the constitution constitute special circumstances requiring the grant of an application for exemption made in terms of section 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 correct the inconsistency.

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

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

Respondents are ordered to jointly and severally pay the applicants’ costs including the cost of two counsel.

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DAVIS J

I agree and it is so ordered.

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CONRADIE J

I agree

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KNOLL AJ