1.

The National Coalition for Gay and Lesbian Equality and

Another v the Minister of Justice and Others1

Facts:
The Constitutional Court was asked to confirm an order made by
Witwatersrand High Court that the following laws are unconstitutional
and invalid:
- The common law offence of sodomy
- The inclusion of sodomy in schedules to certain Acts of Parliament;
- And a section of the sexual offences Act which prohibits sexual
conduct between men in certain circumstances.

Final Judgement:

In Justice Sach’s view, the Constitution requires that the law and public
institutions acknowledge the variability of human beings and affirm the equal
respect and concern that should be shown to all as they are. At the very least,
what is statistically normal is no longer the basis for establishing what is legally
normative. The scope of what is constitutionally normal has expanded to
include the widest range of perspectives and to acknowledge, accommodate and
accept the largest spread of difference. The decision of the Court should thus be
seen as part of a growing acceptance of difference in an increasingly open and
pluralistic South Africa.

2. Minister of Home Affairs v Fourie2

Facts:
The applicant, a judge, and her same-sex partner, have been involved in
an intimate, committed, exclusive and permanent relationship since 1986.
Although they live in every respect as a married couple and are

1
1999(1) SA 6; 1998 ZACC 15
2
[2005] ZACC 19; 2006(3) BCLR 355 (CC); 2006(1) SA 524 (CC)
 acknowledged by the family and friends, they are not legally ‘’spouses’’
and don’t enjoy the benefits accorded to heterosexual married judges.
Judgement:
‘Because marriage entails reciprocal duties of support between spouses,
the Court decided that benefits should be afforded to same-sex partners of
judges only where it can be shown that they have undertaken such
reciprocal duties toward one another. Subject to this qualification, the
Constitutional Court finds that the provisions in question unfairly and
unjustifiably discriminate on the basis of sexual orientation.

3. The National Coalition for Gay and Lesbian Equality and Others
v The Minister of Home Affairs and Others3
Facts:
This case dealt with the position of gays and lesbians who are
permanently South African residents who have foreign national same-sex
life partners.

Judgement:
The following principles were set out to guide courts in determining
whether reading in would constitute an appropriate remedy: 1. reading
words into a statute should be consistent with the Constitution and its
fundamental values; 2. the result achieved should interfere with the laws
adopted by the legislature as little as possible; 3. the court must be able to
define with sufficient precision how the statute ought to be extended in
order to comply with the Constitution; 4. a court should try to give effect
to what the law makers intended within the constraints of the
Constitution; 5. even where the remedy of reading words into a provision
is otherwise justified, it ought not to be done where it would compel the
3
[1999] ZACC 17; 2000 (2) SA 1;2000 (1) BCLR 39
State to undergo unwarranted additional expenditure; 6. where reading in
would, by expanding the group of persons protected, sustain a policy of
long standing or one that is constitutionally encouraged, it should be
preferred to one removing the protection completely. In order to remedy
the constitutional defect the Court decided the words “or partner in a
permanent same-sex life partnership” should be added to the section.
Permanent life partners are ones who have an established intention to
cohabit with one another permanently.” The Court emphasised that the
Legislature can refine and alter the remedy of the court within
constitutional limits. The remedy takes effect immediately but does not
have retrospective effect.
Case List
1. The National Coalition for Gay and Lesbian Equality and Another v
the Minister of Justice and Others 1999(1) SA 6; 1998 ZACC 15
2. Minister of Home Affairs v Fourie [2005] ZACC 19; 2006(3) BCLR
355 (CC); 2006(1) SA 524 (CC)
3. The National Coalition for Gay and Lesbian Equality and Others v The
Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA
1;2000 (1) BCLR 39