In December 2005 South Africa became the fifth country in the world and the first country on the African continent to recognise the rights of same-sex couples. The Constitutional Court case of Minister of Home Affairs vs Fourie is the ground-breaking decision which legalised homosexual marriages in South Africa.
The legal question in the Minister of Home Affairs vs Fourie was twofold:
Firstly, the court had to decide whether the fact that no provision was made for same-sex marriages in any statute, amounted to the denial of equal protection of the law and unfair discrimination by the state against homosexuals on the basis of their sexual orientation. Secondly, if such unfair discrimination were to be found, the court had to decide on an appropriate remedy.
In a unanimous decision the Constitutional Court declared that the common law definition of marriage, and section 30(1) of the Marriage Act, which excluded same-sex marriages, were inconsistent with sections 9(1) and 9(3) and section 10 of the Constitution that dealt with the right to equality and the right to human dignity respectively.
The Court highlighted that South Africa has a multitude of family formations and as such it was held to be inappropriate to enforce any one particular form as the only socially and legally acceptable one. The Court emphasised a constitutional need to acknowledge the long history in South Africa of the marginalisation and persecution of gays and lesbians. Further, the Court acknowledged the lack of a comprehensive legal regulation of the family law rights of gays and lesbians.
It was found that excluding same-sex marriage is an indication that homosexuals are to be considered “outsiders”. In the words of Judge Sachs, writing on behalf of the majority: “To penalise people for being who and what they are, is profoundly disrespectful of the human personality and violators of equality. Equality means equal concern and respect across difference.” In effect the Court acknowledged a “right to be different”.
Among the various arguments opposed to the issue at hand were inevitable contentions raised by religious institutions, which the Court respectfully heard. However, it was held that judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues that have caused deep divisions within religious bodies. In the open and democratic society contemplated by the South African Constitution there must be a mutually respectful co-existence between the secular and the sacred. Furthermore, it was held that the recognition of same-sex marriages would in no way force religious institutions to accept or perform such marriages within their chosen belief, nor would the recognition deprive any religion or heterosexual couple from marrying within the tenets of their beliefs.
Civil Union Act 17 of 2006
The final finding of the Court was that the common law definition of marriage was inconsistent with the Constitution and invalid to the extent that it did not permit same-sex couples to enjoy the status and the benefits, coupled with responsibilities it accords to heterosexual couples. Furthermore, section 30(1) of the Marriage Act was declared to be invalid to the extent that it gave effect to the exclusion of same-sex marriages. In order to remedy the situation parliament was given 12 months to cure the defect through the implementation of legislation.
Ultimate relief came in the form of the Civil Union Act 17 of 2006, which makes provision for same-sex marriages and operates alongside the Marriage Act, such that any individual in South Africa may now conclude a marriage either in its traditional form (under the Marriage Act) or in the form of a civil union (under the Civil Union Act). Civil partnerships (or unions) are entirely the same as marriages insofar as legal consequences are concerned but just differ in name.
One of the most important lessons to be learnt from this case is in this statement made by the Court: “At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.”
It goes without saying that the enactment of the new Act changes the discriminatory background of common law in respect of same-sex relationships. The consequences of a civil union are now the same as in a marriage of a heterosexual couple. It must be noted that an unregistered same-sex relationship is not governed by the provisions of this Act, and that the law allows for churches to refuse to perform civil unions.
Note to attorneys:
See Minister of Home Affairs and Another vs Fourie and Another (CCT 60/04)  ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).
Also see Civil Union Act 17 of 2006 and The Marriage Act 25 of 1961.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)