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

The case involved thirteen individual applicants in permanent same-sex life partnerships, where one partner was a South African permanent resident and the other a foreign national. The National Coalition for Gay and Lesbian Equality (first applicant) and the Commission for Gender Equality (fourteenth applicant) also brought the application. Section 25(5) of the Aliens Control Act 96 of 1991 permitted spouses of permanent South African residents to apply for immigration permits, but made no provision for partners in same-sex life partnerships. Between April and November 1997, the Department of Home Affairs granted temporary exemptions to foreign same-sex partners under section 28(2) of the Act. However, in January 1998, the Department changed its policy and issued a blanket refusal of such exemptions, stating that the "mere fact that the Aliens Control Act does not cater for same-sex relationships cannot be considered as 'special circumstances'" for granting exemptions. The applicants challenged the constitutionality of section 25(5) in the Cape High Court. The respondents did not file answering affidavits and sought a postponement less than 24 hours before the hearing, which was refused. The High Court declared section 25(5) invalid to the extent that it discriminated against same-sex life partners, suspended the order for 12 months, and granted interim relief requiring special circumstances to be found for exemptions.

• Whether section 25(5) of the Aliens Control Act unconstitutionally discriminates against same-sex life partners on grounds of sexual orientation and/or marital status in violation of section 9(3) of the Constitution
• Whether the exclusion of same-sex life partners from immigration benefits infringes their right to dignity under section 10 of the Constitution
• Whether the discrimination, if established, is unfair within the meaning of section 9(5)
• Whether any limitation of rights can be justified under section 36(1)
• Whether the matter was ripe for constitutional adjudication
• Whether the word 'spouse' in section 25(5) could be interpreted to include same-sex life partners
• Whether the Constitutional Court has the power to 'read in' words to a statute to remedy constitutional invalidity
• What constitutes an appropriate and just and equitable remedy under section 172(1)(b) of the Constitution

The appeal by the applicants succeeded. The order of the High Court was varied. The Constitutional Court declared that the omission from section 25(5) of the words "or partner, in a permanent same-sex life partnership" after the word "spouse" was unconstitutional. Section 25(5) was ordered to be read as including those words. The order took effect immediately but without retrospective effect. The respondents' applications for condonation, leave to file answering affidavits, remittal, and amendment of appeal were dismissed with costs. The respondents were ordered to pay the costs of the proceedings in both the High Court and Constitutional Court, including costs of two counsel, jointly and severally.

Section 25(5) of the Aliens Control Act 96 of 1991, by omitting to confer on partners in permanent same-sex life partnerships the immigration benefits it extends to spouses, constitutes unfair discrimination on the grounds of sexual orientation and marital status contrary to section 9(3) of the Constitution, and violates the right to dignity in section 10. Such discrimination is unfair because: (1) it affects a vulnerable group with a history of disadvantage; (2) it fails to protect family relationships that are indistinguishable from heterosexual marriages; (3) it conveys that same-sex partners lack inherent humanity warranting protection; and (4) it constitutes a severe invasion of dignity. The limitation cannot be justified under section 36(1) as there is no rational connection between excluding same-sex partners and the legitimate aim of protecting heterosexual family life—extension of benefits would not harm traditional marriage. Courts have the constitutional power under section 172(1)(b) to remedy under-inclusive legislation by "reading in" words where: (1) striking down would inappropriately deny benefits to all; (2) the constitutional defect can be cured with sufficient precision; (3) it would not create an unsupportable budgetary burden; (4) it respects the legislative scheme within constitutional constraints; and (5) it provides effective relief while leaving Parliament free to amend within constitutional limits. A "permanent same-sex life partnership" is one with an established intention of the parties to cohabit permanently, determined on the totality of facts including duration, cohabitation, ceremony, recognition by family/friends, shared household, financial interdependence, and mutual provision for one another.

The Court made several important observations beyond what was strictly necessary for the decision: (1) The term "alien" is outmoded and "foreign national" should be preferred. (2) While states generally have broad discretion over immigration, this discretion is subject to constitutional constraints where citizens' rights are affected—the case properly focused on the rights of the South African permanent resident partners rather than abstract immigration control powers. (3) The Court did not decide whether unmarried heterosexual partners in permanent relationships are entitled to the same benefits as spouses under section 25(5), leaving this question open. (4) The Court did not decide whether or to what extent the law should give formal institutional recognition to same-sex partnerships, leaving this for future determination (subsequently addressed in Fourie). (5) The Court noted the evolving concept of family in South African society and law, and the growing legislative recognition of same-sex partnerships in various statutes. (6) Ackermann J endorsed the Canadian Supreme Court's view that human dignity stands at the center of equality jurisprudence. (7) The Court emphasized that foreign law from open and democratic societies based on human dignity, equality and freedom is an important interpretive source under section 39(1)(c). (8) The judgment observed that procreative capacity is not a defining characteristic of conjugal relationships, noting it would be demeaning to suggest that childless couples, elderly couples, or couples who adopt are less deserving of protection. (9) The Court confirmed that granting recognition to same-sex relationships does not disparage traditional marriage—"it is possible to be pro-family without rejecting less traditional family forms." (10) The Court noted that remedial orders are not final—Parliament retains authority to amend legislation within constitutional constraints.

This landmark judgment was one of the first major Constitutional Court decisions vindicating the rights of LGBTI+ persons after the inclusion of sexual orientation as a prohibited ground of discrimination in the 1996 Constitution. It represents the first occasion on which the Constitutional Court authoritatively confirmed its power to "read in" words to legislation as a constitutional remedy, establishing important principles for when this remedy is appropriate. The case affirmed that: (1) same-sex life partnerships are entitled to equal dignity and respect as families; (2) discrimination on grounds of sexual orientation is a serious constitutional violation affecting a vulnerable minority; (3) stereotypes reducing LGBTI+ persons to "exclusively sexual beings" or denying their capacity to form families must be rejected; (4) procreative capacity is not a defining characteristic of family or conjugal relationships; (5) the concept of family in South African law is evolving and includes same-sex partnerships; and (6) protecting traditional marriage cannot justify discrimination against same-sex couples. The judgment's treatment of intersecting grounds of discrimination (sexual orientation and marital status) was pioneering. It paved the way for subsequent recognition of same-sex relationships in South African law, ultimately contributing to the legal recognition of same-sex marriage in Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC). The decision also demonstrates the Constitutional Court's commitment to effective remedies and its willingness to craft innovative orders to vindicate constitutional rights.