By: Hlengiwe Mkhasibe


As promised on the previous article let us look at the court case that leaded to the amendmnent of the marriage Law between two people regardless of their sexuality.


Minister of Home Affairs and Another v Fourie and Another, with Doctors For Life International (first amicus curiae – an impartial advisor to a court of law in a particular case), John Jackson Smyth (second amicus curiae) and Marriage Alliance of South Africa (third amicus curiae)
Constitutional Court – CCT 60/04             Judgment date: 1 December 2005

Following an application by Marié Fourie and Cecelia Bonthuys to be allowed to marry, the court ruled that the existing legal definition of marriage was in conflict with the country’s Constitution because it denied gays and lesbians the rights granted to heterosexuals.

Section 9 (3) of South Africa’s Constitution expressly prohibits unfair discrimination on the grounds of sexual orientation. It reads: “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 court gave Parliament a year to remedy the situation. On 14 November Parliament passed the Civil Union Bill into law by a vote of 230 to 41. The ruling African National Congress ordered a three-line whip, the strictest disciplinary command the party can give its MPs, to compel them to be both present in the chamber and to vote in favour of the party line supporting the Bill. Parties opposed to the new law included the African Christian Democratic Party and the Freedom Front Plus, while the Democratic Alliance allowed its MPs to vote according to conscience. The Independent Democrats opposed the Bill on the basis that a “separate but equal” marriage law for gays and lesbians remained discriminatory. While it is still impossible for same-sex couples to marry under the existing Marriage Act, any South African citizen will be allowed to marry under the new law – including gays and lesbians.

Whether heterosexual or homosexual, they will have the option of calling their partnership either a civil union or a marriage. Among other benefits, the new law will allow married same-sex couples to make decisions on each other’s behalf and inherit if a partner dies without a will. ‘Backward, timeworn prejudices’ before the vote, Defence Minister Mosiuoa Lekota urged Parliament to support the rights of gays and lesbians, and to allow them to enjoy the fruits of democracy. “We are bound to fulfil the promises of democracy which we made to the people of our country,” he said.

“Are we going to suppress this so-called minority, or are we going to let these people enjoy the privilege of choosing who will be their life partners?. “I take this opportunity to remind the House that in the long and arduous struggle for democracy very many men and women of homosexual or lesbian orientation joined the ranks of the liberation and democratic forces”.

“How then can we live with the reality that we should enjoy rights that together we fought for side by side, and deny them that?. Today, as we reap the fruits of democracy, it is only right that they must be afforded similar space in the sunshine of our democracy. This country cannot afford to continue to be a prisoner of the backward, timeworn prejudices that have no basis”.

“Progressive democracies with the new law, South Africa joins the elite group of progressive democracies that have legalised same-sex marriage in the last five years: the Netherlands, which passed the law in 2001, Belgium (2003), Canada (2005) and Spain (2005). A number of other European Union countries – Britain being the latest – have passed laws allowing for various forms of civil partnership between same-sex couples. But while these allow same-sex couples to register their partnerships and receive some of the benefits accorded married couples, they fall short of full marriage equality. In the Constitutional Court’s December 2005 ruling, Judge Albie Sachs highlighted the deep injustice of denying gays and lesbians the right to formalise their unions”.

“Finding themselves strongly attracted to each other, two people went out regularly and eventually decided to set up home together,” he said in the introduction to his judgment. “After being acknowledged by their friends as a couple for more than a decade, they decided that the time had come to get public recognition and registration of their relationship. Like many persons in their situation, they wanted to get married. There was one impediment, they are both women.”