By: Hlengiwe Mkhasibe

Uniq MagSA through Advocate Hlengiwe Mkhasibe decided to put on magnifying glasses into legal issues pertaining LBTI community. In this September issue she is acutely looking at the issue of marriage and or Civil unions.  


In this era of democracy, one should give a round of applause to the amended constitution of the Republic of South Africa. It is not that much recognised it has brought some change to the lives of gay and Lesbian community.

They say finding yourself is the best journey one could take, but accepting what you find is a life changing decision. How one choses to live their life, is entirely their choice and legal right, more especially when it comes to your sexuality. Over the years people never really had a choice and freedom to express their true sexuality, due to the fear of being judged and victimised by society, as being Gay, Lesbian or bisexual is associated with demonic practise and not “normal” human behaviour.

In 1996 the Constitution of the republic, which is the highest law of the land in terms of section 2 of the constitution came into being with the main aim to protect and uphold fundamental human rights, Section 7 (1) the bill of rights is the cornerstone of democracy in South Africa, it enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

One or the main problem in South Africa when it comes to homosexual people is acceptance, if society could accept that there are people that are different in the way that they live their lives it would not be difficult for one to accept themselves and live their lives freely without fear of being judged or victimised. With acceptance comes understanding that homosexuals are just as humans as the next person.  Due to the fear of homophobic people, most of the gay and lesbian community cannot express themselves which is a direct infringement of their right to Expression which is Section 16 of the constitution. We are all equal as South Africans regardless of our lifestyles or the decisions we take pertaining how to live our lives, the constitution clearly states in Section 9 (1) Everyone is equal before the law and has the right to equal protection and benefits of the law (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievements of equality, legislative and other mergers designed to protect or advanced persons, or categories of persons, disadvantaged by unfair discriminations maybe taken.  (3)  The state may not unfairly discriminate directly or indirectly against anyone on or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sex orientation, age, disability, religion conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. Since the right of freedom of expression for gay people is continuously infringed they end up living in fear and finding it hard to live their lives the way they intend to live it, and feel less equal to the next person.


2006 came with a change for the LGBT community when the Civil Union Bill was passed into law… this act gives gays and lesbian couples the exact same rights as straight couples.

In the olden days and also biblically, marriage was presumed to be a marriage if there is an agreement between a man and woman which was a direct discrimination on same sex couples, which has resulted in the change to accommodate the LGBT community being a challenge to this day.

“1 December 2006 South Africa has become the fifth country in the world, and the first in Africa, to allow legal marriages between same-sex couples, after a historic vote in Parliament on 14 November, followed by the signature of Acting President Phumzile Mlamblo-Ngcuka on 30 December, passed the Civil Union Bill into law. Parliament and the Presidency have therefore met the 1 December 2006 deadline set by the Constitutional Court in 2005 for the country’s Marriage Act to be amended, or for new legislation to be passed to allow gays and lesbians to enter into legal marriages.

Next week we will be looking at the case law where a couple took the Department of Home Affairs to court to allow them to marry.