Satchwell v President of the Republic of South Africa and Another

Kathleen Margaret Satchwell, a judge, previously succeeded in having provisions of the Judges’ Remuneration and Conditions of Employment Act 88 of 1989 and related regulations declared unconstitutional for unfairly discriminating against permanent same-sex life partners of judges by conferring benefits only on spouses. After that order was confirmed by the Constitutional Court, the 1989 Act and its regulations were repealed and replaced by the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 and new regulations in 2002. The new legislative scheme continued to confer benefits solely on spouses and excluded permanent same-sex life partners, with the added feature that it expressly covered Constitutional Court judges. As a result, the applicant obtained no effective relief from the earlier order. She therefore applied directly to the Constitutional Court to challenge sections 9 and 10 of the 2001 Act and regulations 12(2) and 13(2) of the 2002 regulations for unconstitutional discrimination.

Direct access was granted. Sections 9 and 10 of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 and regulations 12(2) and 13(2) of the 2002 regulations were declared unconstitutional to the extent that they omitted permanent same-sex life partners. The Court ordered that the words “or partner, in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support” be read in after the word “spouse” in each provision, with effect from the date of the order. No order as to costs was made.

This case reinforced and extended the Constitutional Court’s equality jurisprudence protecting same-sex life partners, ensuring that legislative amendments or replacements cannot perpetuate previously identified unconstitutional discrimination. It confirmed that benefits linked to marriage may not be denied to permanent same-sex life partnerships where reciprocal duties of support exist, and demonstrated the Court’s willingness to grant direct access and apply effective remedies such as reading-in to secure substantive equality.