National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others

Section 25(5) of the Aliens Control Act 96 of 1991 allowed immigration permits to be issued to the spouses of permanent South African residents but did not extend the same benefit to foreign nationals in permanent same-sex life partnerships with such residents. The applicants included the National Coalition for Gay and Lesbian Equality, several foreign nationals in committed same-sex relationships with South African permanent residents, their South African partners, and the Commission for Gender Equality. They challenged the constitutionality of the exclusion of same-sex life partners, arguing that it amounted to unfair discrimination on the ground of sexual orientation. The Cape of Good Hope High Court declared section 25(5) unconstitutional to the extent of the exclusion and granted interim and consequential relief. The matter came before the Constitutional Court for confirmation of invalidity and consideration of appropriate remedial relief.

The Constitutional Court confirmed the declaration of constitutional invalidity and ordered that section 25(5) of the Aliens Control Act be read as including permanent same-sex life partners of persons permanently and lawfully resident in South Africa. The appeals by the respondents were dismissed, and the applicants’ appeal in respect of remedial relief succeeded. A costs order was made against the respondents.

This case is a landmark in South African constitutional jurisprudence on equality and sexual orientation. It affirmed that same-sex life partnerships are entitled to equal concern and respect under the Constitution and extended concrete legal recognition to such relationships in the field of immigration law. The judgment is also significant for its articulation of the Constitutional Court’s remedial powers, particularly the use of the reading-in remedy to cure unconstitutional statutory omissions.