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 a foreign national spouse of a person permanently and lawfully resident in South Africa to apply for an immigration permit, but did not extend the same benefit to foreign nationals in permanent same-sex life partnerships with South African permanent residents. The National Coalition for Gay and Lesbian Equality and several individual same-sex partners (the applicants) challenged the constitutionality of this omission. Several of the applicants were foreign nationals who had been in long-term, committed, intimate same-sex relationships with South African citizens or permanent residents. Some had previously been granted temporary exemptions under section 28(2) of the Act, but the Department of Home Affairs later adopted a blanket policy refusing such exemptions. The applicants sought relief in the High Court, which declared section 25(5) invalid to the extent that it excluded same-sex life partners, but suspended the declaration. Both parties appealed to the Constitutional Court.

• Whether it is unconstitutional for section 25(5) of the Aliens Control Act 96 of 1991 to confer immigration benefits on foreign spouses of permanent South African residents but not on foreign nationals in permanent same-sex life partnerships with permanent South African residents.
• Whether the word 'spouse' in section 25(5) can be interpreted, under section 39(2) of the Constitution, to include same-sex life partners, thereby avoiding the constitutional issue.
• Whether the discrimination was based on sexual orientation or marital status, or a combination of both, and whether it was unfair under section 9 of the Constitution.
• Whether the limitation of rights under section 25(5) was justifiable under the section 36 limitation clause.
• Whether 'reading in' words into a statute is a constitutionally permissible remedy under section 172(1)(b) of the Constitution.
• What the appropriate remedy should be if section 25(5) is found unconstitutional—whether to strike down the whole section, notionally sever the offending part, or read words into the provision.

1. The respondents' applications for condonation of their failure to file answering affidavits, for leave to file those affidavits, for remission to the High Court, and for amendment of their notice of appeal were dismissed with costs. 2. The applicants' appeal succeeded. Paragraphs 1, 2 and 3 of the High Court order were set aside and replaced with an order declaring the omission in section 25(5) unconstitutional and reading in the words 'or partner, in a permanent same-sex life partnership' after 'spouse'. 3. The order had no retrospective effect. 4. Paragraphs 4, 5 and the costs order of the High Court were confirmed. 5. Costs in the Constitutional Court, including costs of two counsel, were to be paid by the respondents jointly and severally.

1. The omission of same-sex life partners from the spousal benefits conferred by section 25(5) of the Aliens Control Act constitutes unfair discrimination on the intersecting grounds of sexual orientation and marital status in terms of section 9(3) of the Constitution, and violates the right to dignity under section 10. 2. The word 'spouse' cannot be interpreted to include a same-sex life partner; such interpretation would distort the plain meaning of the term. 3. The Court has the power under section 172(1)(b) of the Constitution to read words into a statute to cure a constitutional defect caused by an omission, provided the words can be defined with sufficient precision, the result is faithful to the legislative scheme, and it does not cause an unsupportable budgetary intrusion or impermissibly intrude on the legislature's domain. 4. Discrimination of this kind is not justifiable under section 36 of the Constitution, as there is no rational connection between excluding same-sex life partners and the goal of protecting the family life of heterosexual spouses.

The Court left open the question of whether unmarried heterosexual partners were entitled to the same benefits under section 25(5). Ackermann J stated: 'The position of unmarried partners in permanent heterosexual partnerships and their omission from the provisions of section 25(5) was never an issue in the case nor was any argument addressed thereon. The Court does not reach the latter issue in this case and I express no view thereon, leaving it completely open.' The Court also left open the broader issue of whether, or to what extent, the law ought to give formal institutional recognition to same-sex partnerships. The Court noted that in other jurisdictions there has been a significant change in societal and legal attitudes to same-sex partnerships in the context of what constitutes a family. Ackermann J also observed that equal protection does not require identical treatment, and that because same-sex life partnerships are not legally regulated in the same way as marriages, it might be necessary to treat them differently in some contexts to ensure substantive equality.

This is a landmark judgment in South African equality and gay rights jurisprudence. It was the first case in which the Constitutional Court applied the remedy of 'reading in' words into a statute to cure a constitutional defect caused by an omission, establishing the principles that guide this remedial power. The judgment confirmed that discrimination on the ground of sexual orientation is presumptively unfair and that the rights to equality and dignity are often intertwined. It recognised that permanent same-sex life partnerships are capable of constituting families that deserve equal protection and respect under the law, and that excluding such partnerships from benefits afforded to spouses reinforces harmful stereotypes and violates constitutional rights. The case also affirmed that courts must provide effective, innovative remedies for constitutional violations and laid the foundation for subsequent extensions of rights to same-sex couples in South Africa.