Procedural Posture

Constitutional challenge to the validity of Section 25(5) of the Aliens Control Act No. 96 of 1991, referred to the Constitutional Court of South Africa by the Cape of Good Hope High Court.


Under Section 25(5) of the Aliens Control Act, the foreign national “spouse” of a permanent and lawful resident of South Africa was provided with preferential treatment when applying for an immigration permit, whereas the same benefit was not granted to a foreign national who had a same-sex life partnership with another permanent and lawful resident of South Africa, though in all other respects the person was analogous to a “spouse”. A number of applicants challenged the law’s constitutionality.


Whether Section 25(5) of the Aliens Control Act unfairly and unconstitutionally discriminated against partners in permanent same-sex life partnerships by not giving them benefits equal to those conferred on “spouses”.

Domestic Law

Aliens Control Act 1991, Section 25(5).

Constitution of South Africa, Sections 9 (equality and equal protection) and 10 (human dignity).

National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, 1998 (finding unconstitutional statutory and common law offences of sodomy).

Comparative Law

Braschi v. Stahl Associates Company, New York Court of Appeals, United States, 1989; El-Al Israel Airlines Ltd v. Danilowitz, Supreme Court of Israel sitting as the High Court of Justice, 1994; Fitzpatrick (A.P.) v. Sterling Housing Association Ltd, United Kingdom House of Lords, 1999; M v. H, Supreme Court of Canada, 1999 (noting changes in societal and legal attitudes toward greater acceptance of same-sex partnerships).

Canada (Attorney-General) v. Mossop, Supreme Court of Canada, 1993;

Egan v. Canada, Supreme Court of Canada, 1995 (same-sex life partnerships as the only “conjugal relationship” available to gay and lesbian couples in the absence of civil partnerships or marriage).

Reasoning of the Court

Justice Ackermann delivered the judgment of the Court. The Court unanimously held that Section 25(5) of the Aliens Control Act unfairly discriminated on the grounds of sexual orientation and marital status, by omitting to extend the benefits it conferred on spouses to permanent same-sex life partners. In doing so, Section 25(5) unjustifiably limited the rights of same-sex life partners to equality and dignity under Sections 9 and 10 respectively of the Constitution of South Africa. The Court’s decision was influenced by previous decisions in South Africa and comparative jurisprudence from Canada, Israel, the United Kingdom, the United States and elsewhere.

The Court held that same-sex partners were in a fundamentally different situation from unmarried heterosexual partners. This difference derived from the fact that, despite a growth in the express and implied recognition of same-sex partnerships, same-sex life partnerships were still not legally recognised. Heterosexual partners had the option of marriage. The Court did not address whether same-sex relationships should be legally recognised. Rather, it focused on determining whether Section 25(5) unjustifiably limited the constitutional rights of same-sex partners who were in a life partnership, which was “the only form of conjugal relationship open to gays and lesbians”.

The Court dealt with the equality and dignity sections of the Constitution in a related manner. Section 9(3) of the Constitution expressly prohibited the State from unfairly discriminating against individuals on the grounds of sexual orientation and marital status. Under Section 9(5) discrimination was “unfair” unless it was established to be fair. The Court held that discrimination on the basis of marital status existed because marriage was a prerequisite to obtaining the immigration benefit of Section 25(5). Gays and lesbians were excluded from the possibility of obtaining the benefit because they were unable to marry, and the fact that they were consequently excluded from Section 25(5) constituted unjustifiable sexual orientation discrimination.

The immigration law was found to reinforce harmful stereotypes of gay and lesbian relationships as having lower status than their heterosexual counterparts. The Court emphasised that “the family and family life which gays and lesbians are capable of establishing with their foreign national same-sex partners are in all significant respects indistinguishable from those of spouses and in human terms as important to gay and lesbian same-sex partners as they are to spouses”.

Section 25(5) also limited the rights of gay and lesbian people in relation to the constitutional guarantee under Article 10 that “everyone has inherent dignity and the right to have their dignity respected and protected”. The Court held that, because it did not extend to foreign national same-sex partners, Section 25(5) sent a message that “gays and lesbians lack the inherent humanity to have their families and family lives respected or protected”. The Court rejected the contention that extending benefits to same-sex partners would adversely impact the institution of marriage or undermine the benefits which Section 25(5) extended to married spouses and their families. An extension of the scope of the section would provide new legal rights to same-sex partners but would not diminish existing spousal rights. The protection of marriage did not logically justify the continued exclusion of same-sex life partners from the benefit of Section 25(5).

The Court, therefore, held that the limitation that Section 25(5) placed on the constitutional rights of gays and lesbians to equality and dignity had no reasonable justification. These rights went to the core of South Africa’s “constitutional democratic values of human dignity, equality and freedom”. Furthermore, the Court noted, “the forming and sustaining of intimate personal relationships of the nature here in issue are for many individuals essential for their own self-understanding and for the full development and expression of their human personalities”. To prevent foreign national same-sex life partners from receiving the benefit of Section 25(5) unjustly and inequitably deprived gay and lesbian South Africans of rights to which they were constitutionally entitled.

The Court held that as a remedy to the omission it would read in, after the word “spouse” in the Section, the words “or partner, in a permanent same-sex life partnership’”.

The remedial extension of Section 25(5) was declared to have immediate effect. The respondents were ordered to pay costs.

National Coalition for Gay and Lesbian Equality v. Minister for Home Affairs, Constitutional Court of South Africa (full text of judgment, PDF)

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