Same-sex marriage in South Africa

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Same-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal. South Africa is the fifth country, the first in Africa, and the second outside Europe to legalize same-sex marriage.

History

Background

Both the Interim Constitution, which came into force on 27 April 1994, and the final Constitution, which replaced it on 4 February 1997, forbid discrimination on the basis of sex, gender or sexual orientation. These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships:

• Langemaat v Minister of Safety and Security (1998) recognised the reciprocal duty of support between same-sex partners, and extended medical insurance benefits.
• National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (1999) extended immigration benefits to foreign partners of South African citizens.
• Satchwell v President of the Republic of South Africa (2002) extended remuneration and pension benefits.
• Du Toit v Minister of Welfare and Population Development (2002) allowed same-sex couples to adopt children jointly.
• J v Director-General of Home Affairs (2003) allowed both partners to be recorded as the parents of a child conceived through artificial insemination.
• Du Plessis v Road Accident Fund (2003) recognised the claim for loss of support when a same-sex partner is negligently killed.
• Gory v Kolver NO (2006) allowed inheritance of the estate of a partner who died intestate.^[1]

The Fourie case

Main article: Minister of Home Affairs and Another v Fourie and Another

In 2002 a lesbian couple, Marié Fourie and Cecelia Bonthuys, with the support of the Lesbian and Gay Equality Project, launched an application in the Pretoria High Court to have their union recognised and recorded by the Department of Home Affairs as a valid marriage. Judge Pierre Roux dismissed the application on 18 October 2002, on the technical basis that they had not properly attacked the constitutionality of the definition of marriage or the Marriage Act, 1961.^[2][3]

Fourie and Bonthuys requested leave to appeal to the Constitutional Court, but this was denied and the High Court instead granted leave to appeal to the Supreme Court of Appeal (SCA). They applied to the Constitutional Court for direct access, but this was denied on 31 July 2003; the court stated that the case raised complex issues of common and statutory law on which the SCA's views should first be heard.^[4][5]

Fourie and Bonthuys therefore appealed the High Court judgment to the SCA, which handed down its decision on 30 November 2004. The five-judge court ruled unanimously that the common-law definition of marriage was invalid because it unconstitutionally discriminated on the basis of sexual orientation, and that it should be extended to read "Marriage is the union of two persons to the exclusion of all others for life." The court was, however, divided on the problem of the Marriage Act, which required a marriage officer to follow a formula which did not allow for same-sex marriage. The majority opinion, written by Judge Edwin Cameron, ruled that because Fourie and Bonthuys had not challenged the Marriage Act, the court could not invalidate it, and therefore their marriage could not immediately be solemnized. In a dissenting opinion, Judge Ian Farlam stated that the marriage formula followed from the common-law definition and the court should update it; on the other hand, he was of the opinion that the order of invalidity should be suspended for two years to allow Parliament to adopt its own remedy for the situation.^[6][7][8]

The government appealed the SCA's ruling to the Constitutional Court, arguing that a major alteration to the institution of marriage was for Parliament and not the courts to decide, while Fourie and Bonthuys cross-appealed, arguing that the Marriage Act should be altered a Judge Farlam had suggested. In the meanwhile, the Lesbian and Gay Equality Project had also launched a separate lawsuit directly attacking the constitutionality of the Marriage Act, which was originally to be heard in the Johannesburg High Court; the Constitutional Court granted the Project's request to have it heard and decided simultaneously with the Fourie case.

On 1 December 2005 the Constitutional Court handed down its decision: the nine justices agreed unanimously that the common-law definition of marriage and the marriage formula in the Marriage Act, to the extent that they excluded same-sex parners from marriage, were unfairly discriminatory, unjustifiable, and therefore unconstitutional and invalid. In a widely-quoted passage from the majority ruling, Justice Albie Sachs wrote:

"The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples."

—Paragraph 71 of the judgment

There was some disagreement about the remedy: the majority (eight of the justices) ruled that the declaration of invalidity should be suspended for a year to allow Parliament to correct the situation, as there were different ways in which this could be done, and the Law Reform Commission had already investigated several proposals. If Parliament did not end the inequality by 1 December 2006, then words would automatically be "read in" to the Marriage Act to allow same-sex marriages. Justice Kate O'Regan dissented, arguing that these words should be read in immediately.^[9][10]

Passage of the Civil Union Act

Main article: Civil Union Act, 2006

On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament. Originally, the bill also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex.^[11] The state law advisers, who screen laws for constitutionality and form, declined to certify the bill, suggesting that it failed to follow the guidelines laid down by the Constitutional Court. The Joint Working Group, a network of LGBTI organisations, described the idea of a separate marriage law for same-sex couples as "an apartheid way of thinking".^[12]

On 16 September, thousands of South Africans took to the streets in several cities to protest same-sex marriage.^[13] The minor opposition African Christian Democratic Party (ACDP) pushed for a constitutional amendment to define marriage as between a man and a woman; this was rejected by the National Assembly's portfolio committee on Home Affairs.^[14] Public hearings on the Civil Union Bill began on 20 September. On 7 October, the Marriage Alliance organised a march to the Union Buildings in Pretoria to hand to government representatives a memorandum opposing same-sex marriage.

On 9 October, the governing African National Congress voted to support the Civil Union Bill. Although the party had been split on the issue, the vote meant that ANC MPs would be obliged to support the bill in Parliament. The full party support came after members of the national executive committee reminded party members that the ANC had fought for human rights, which included gay rights.

It was originally expected that the National Assembly would vote on the bill on 20 October in order to allow enough time for the National Council of Provinces to debate and vote on it ahead of the 1 December deadline. The vote was repeatedly delayed as the Portfolio Committee on Home Affairs was still involved in discussions.^[15]

The bill as originally introduced would not have legalized same-sex marriage, but would rather have provided for civil unions limited to same-sex partners only. Gay activists argued that this would be unconstitutional because it did not allow them the right to marry, as guaranteed by the Constitutional Court ruling which specifically warned against "separate but equal" approaches. Accordingly, the Portfolio Committee amended the bill to allow either marriages or civil partnerships, and to allow them to both same- and opposite-sex couples. The chapter dealing with the recognition of domestic partnerships was also removed.

The amended bill was passed by the National Assembly on 14 November by 230 votes to 41, and by the National Council of Provinces on 28 November by 36 votes to 11.^[16] Deputy President Phumzile Mlambo-Ngcuka, acting for President Thabo Mbeki, signed it into law on 29 November, and it became law the following day, one day before the Constitutional Court's order would otherwise have come into force.^[17] The Minister of Home Affairs Nosiviwe Mapisa-Nqakula said the law was only a temporary measure, noting that a fuller marriage law would be formulated to harmonise the several pieces of marriage legislation now in force.^[18][19][20]

The bill was hailed by gay and liberal activists as another step forward out of the country's apartheid past, while at the same time some clergy and traditional leaders described it as "the saddest day in our 12 years of democracy." Islamic leader Sheikh Sharif Ahmed called the bill a "foreign action imposed on Africa".^[21][22]

The first couple to wed, Vernon Gibbs and Tony Halls, did so in George, the following day, 1 December 2006. They encountered no problems, and a second couple married later that day in the same location.^[23]

Law

Three laws currently provide for the status of marriage in South Africa. These are the Marriage Act (Act 25 of 1961), the Customary Marriages Act (Act 120 of 1998), which provides for the civil registration of marriages solemnised according to the traditions of indigenous tribes, and the Civil Union Act (Act 17 of 2006). South Africans may choose in terms of which of these laws they wish to be married, but may be married in terms of only one at a given time.

Same-sex marriages are only allowed in terms of the Civil Union Act. Couples marrying in terms of the Civil Union Act may choose whether their union is called a civil partnership or a marriage partnership. Couples joined in a marriage partnership in terms of that act enjoy the same privileges as couples married in terms of the Marriage Act.

If it can be proven that a couple is married in terms of any of these three acts, that marriage is legally valid and may not be regarded as an invalid marriage or a non-marriage by anyone or any organisation. It is therefore illegal for any organisation to treat any such married persons as if they were unmarried.

Conscientious objection by marriage officers

A person who is a marriage officer in terms of the Marriage Act, and who has an objection of conscience, religion or belief to marrying same-sex couples, may object to the government in writing, after which he or she will be granted exemption from having to perform such marriages. A person who is a marriage officer in terms of the Civil Union Act will not be exempted from performing same-sex marriages. Such an objector may, however, give up their office as marriage officer altogether by resigning from whichever organisation they belong to by virtue of which they are a marriage officer, or if said organisation as a whole requests from the government that their members no longer be recognised as marriage officers by virtue of their membership to that organisation.

Statistics

According to Statistics South Africa, from 2007 to 2009 a total of 1,572 marriages and civil partnerships were registered under the Civil Union Act. A majority of these were registered in Gauteng or the Western Cape.^[24]

Province	2007	2008	2009	Total
Eastern Cape	0	41	30	71
Free State	1	23	20	44
Gauteng	49	362	324	735
KwaZulu-Natal	8	74	87	169
Limpopo	0	15	10	25
Mpumalanga	3	7	11	21
North West	2	6	5	13
Northern Cape	1	11	43	55
Western Cape	16	191	227	434
Outside South Africa	0	2	3	5
Total	80	732	760	1,572

See also

• Same-sex marriage
• LGBT rights in South Africa
• Marriage in South Africa

References

1. ^ Du Bois, François, ed (2007). Wille's principles of South African law (9th ed.). Cape Town: Juta & Co. pp. 367–369. ISBN 9780702165511. 
2. ^ "High Court dismisses gay marriage bid". Mail & Guardian. 2002. http://mg.co.za/article/2002-01-01-high-court-dismisses-gay-marriage-bid. Retrieved 3 July 2011. 
3. ^ Fourie and Another v Minister of Home Affairs and Another [2002] ZAGPHC 1 (18 October 2002), Transvaal Provincial Division (South Africa)
4. ^ "Constitutional Court dismisses lesbian couple's application". Sapa. 31 July 2003. http://www.gmax.co.za/look/07/31-samarriage.html. Retrieved 5 July 2011. 
5. ^ Fourie and Another v Minister of Home Affairs and Another [2003] ZACC 11, 2003 (10) BCLR 1092 (CC), 2003 (5) SA 301 (CC) (31 July 2003), Constitutional Court (South Africa)
6. ^ "SA ruling 'may allow gay unions'". BBC News. 30 November 2004. http://news.bbc.co.uk/2/hi/africa/4055549.stm. Retrieved 6 July 2011. 
7. ^ "South African ruling paves way for gay marriage". ABC News Online. AFP. 30 November 2004. http://www.abc.net.au/news/newsitems/200411/s1255113.htm. Retrieved 6 July 2011. 
8. ^ Fourie and Another v Minister of Home Affairs and Another [2004] ZASCA 132, 2005 (3) BCLR 241 (SCA), 2005 (3) SA 429 (SCA) (30 November 2004), Supreme Court of Appeal (South Africa)
9. ^ "Media Summary: Minister of Home Affairs and Another v Fourie and Another, Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others". Constitutional Court of South Africa. 1 December 2005. http://www.saflii.org/za/cases/ZACC/2005/19media.pdf. Retrieved 6 July 2011. 
10. ^ Minister of Home Affairs and Another v Fourie and Another [2005] ZACC 19, 2006 (3) BCLR 355 (CC), 2006 (1) SA 524 (CC) (1 December 2005), Constitutional Court (South Africa)
11. ^ Quintal, Angela (25 August 2006). "Same-sex marriages bill tabled in parliament". Independent Online. http://www.iol.co.za/news/politics/same-sex-marriages-bill-tabled-in-parliament-1.290971. Retrieved 6 July 2011. 
12. ^ "'Separate law on marriage is apartheid'". Independent Online. 7 September 2006. 
13. ^ "Thousands Protest Against South African Gay Marriage Bill". 365gay.com. 2006-09-17. Archived from the original on 2007-03-11. http://web.archive.org/web/20070311053712/http://www.365gay.com/Newscon06/09/091606saf.htm. Retrieved 2009-10-16. 
14. ^ "No constitutional amendment on same-sex marriages". South African Broadcasting Corporation. 16 August 2006. Archived from the original on 2007-09-29. http://web.archive.org/web/20070929123931/http://www.sabcnews.com/politics/parliament/0,2172,133123,00.html. Retrieved 2009-10-16. 
15. ^ "Parliamentary committee in South Africa delays decision on civil unions". Pravda. 2006-11-07. http://english.pravda.ru/news/world/07-11-2006/85402-africa-0. Retrieved 2006-11-14. 
16. ^ "South Africa Gay Marriage Bill Goes To President". 365Gay. 2006-11-28. Archived from the original on 2007-09-26. http://web.archive.org/web/20070926215818/http://www.365gay.com/Newscon06/11/112806safmar.htm. Retrieved 2009-10-16. 
17. ^ "South Africa Gay Marriage Bill Becomes Law". 365Gay. 2006-11-30. Archived from the original on 2006-12-10. http://web.archive.org/web/20061210090057/http://365gay.com/Newscon06/11/113006safmar.htm. Retrieved 2009-10-16. 
18. ^ "Green light for gay marriages". iafrica.com. 2006-11-14. Archived from the original on 2007-12-28. http://web.archive.org/web/20071228152635/http://iafrica.com/news/sa/416904.htm. Retrieved 2009-10-16. 
19. ^ "South Africa passes same-sex marriage bill". Canadian Broadcasting Corporation. 2006-11-14. http://www.cbc.ca/world/story/2006/11/14/marriage-safrica.html. Retrieved 2006-11-14. 
20. ^ Nullis, Clare (2006-11-14). "South Africa Parliament OKs Gay Marriage". Associated Press. redOrbit. http://www.redorbit.com/news/general/730699/south_africa_parliament_oks_gay_marriage/index.html. Retrieved 2009-10-16. 
21. ^ "South Africa to legalize gay marriage". Associated Press. MSNBC. 2006-11-14. http://www.msnbc.msn.com/id/15714036/. Retrieved 2009-10-16. 
22. ^ Macanda, Phumza (2006-11-15). "Africans cheer, condemn SA same-sex marriage Bill". Mail & Guardian. http://www.mg.co.za/article/2006-11-15-africans-cheer-condemn-sa-samesex-marriage-bill. Retrieved 2009-10-16. 
23. ^ "Gay couple tie the knot in a first for South Africa". Associated Press. PlanetOut. 2006-12-01. Archived from the original on 2007-01-05. http://web.archive.org/web/20070105112917/http://www.planetout.com/news/article.html?2006/12/01/2. Retrieved 2009-10-16. 
24. ^ "Statistical release P0307: Marriages and divorces, 2009". Statistics South Africa. 8 December 2010. p. 26. http://www.statssa.gov.za/publications/P0307/P03072009.pdf. Retrieved 7 August 2011.