the south african civil union act 2006: progressive ... - Oxford Journals

International Journal of Law, Policy and the Family 22, (2008), 356–392 doi:10.1093/lawfam/ebn011 Advance Access Publication 23 September 2008

THE SOUTH AFRICAN CIVIL UNION ACT 2 0 0 6 : P R O G R E S S I V E L E G I S L AT I O N W I T H R E G R E S S I V E I M P L I C AT I O N S ? B R A D L E Y S . S M I T H * A N D J . A . R O B I N S O N **

ABSTRACT

A ground-breaking judgment handed down by the Constitutional Court on 1 December 2005 gave parliament 1 year within which to promulgate legislation that facilitated same-sex marriage in South Africa. In response, the Civil Union Act 17 of 2006 came into operation on 30 November 2006. This Act provides for the solemnization and registration of a civil union in the form of either a marriage or a civil partnership. While it can be accepted that the Act allows persons of the same sex to conclude a civil union, the position of heterosexual persons appears to be less certain – a situation which requires urgent attention due to the lack of legal protection currently afforded to cohabitants who have not formalized their relationships. This problem is exacerbated by a number of anomalies created by judicial intervention (prior to the promulgation of the Act), in terms of which certain benefits of civil marriages were extended to same-sex unmarried couples while their heterosexual counterparts were left out in the cold. After elucidating the interpretative difficulties caused by the Act, attempting to shed some light on a number of the anomalies alluded to above and briefly analysing the comparable marriage and marriage-like relationships encountered in Dutch law, this contribution concludes that the Civil Union Act is a badly-drafted piece of legislation that has only served to further fragment an already disjointed legal landscape.

INTRODUCTION

On 1 December 2005, the Constitutional Court1 delivered one of the most ground-breaking judgments in relation to family law when, in Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others,2 (hereinafter ‘the Fourie

* Senior Lecturer, Department of Private Law, University of the Free State, Bloemfontein, South Africa. This article form part of an LL.D. study that is currently in progress. ** Professor of Private Law, University of the North West, Potchefstroom, South Africa. International Journal of Law, Policy and the Family, Vol. 22, No. 3, © The Author [2008]. Published by Oxford University Press. All rights reserved. For Permissions, please email: [email protected].

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BRADLEY S. SMITH AND J. A. ROBINSON

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case’) the possibility of the conclusion of a valid marriage between two persons of the same sex became a reality in South Africa.3 The road to this ground-breaking judgment had not been an easy one for the two adult female litigants involved. Indeed, it had been one characterized by protracted litigation that had commenced 3 years earlier with an application launched in the Pretoria High Court4 – in which an order compelling both the Director General and the Minister of Home Affairs to register a ‘marriage’ between the two female applicants had been sought and dismissed – and had eventually culminated in the Constitutional Court’s December 2005 judgment. In terms of the latter judgment, the two chief bastions of marriage as a hitherto exclusively heterosexual institution were removed, by virtue of the fact that (i) the common law definition5 of ‘marriage’6 was ‘declared to be 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 the responsibilities it accords to heterosexual couples’7 and (ii) the omission of the words ‘or spouse’ after the words ‘or husband’ in section 30(1) of the Marriage Act8 was declared to be inconsistent with the Constitution, and the Act itself was declared to be invalid to the extent of this inconsistency. The declarations of invalidity referred to above were suspended for a period of 1 year as from the date of the judgment in order to allow Parliament to remedy the defects. In the event of Parliament failing to do so, the Court ordered that section 30(1) of the Marriage Act of 1961 would henceforth be read as if the words ‘or spouse’ were included after the words ‘or husband’. Although it can be conceded that the Legislature’s response to the Fourie case was described as being a temporary measure by Nosiviwe Mapisa-Nqakula (the South African Minister of Home Affairs),9 this contribution in essence focuses on the poor drafting of the legislation in question and also draws attention to the legal uncertainty that has consequently ensued. 1 . THE CIVIL UNION ACT 17 OF 2006 A. Introduction In order to meet the deadline of 1 December 2006, a Civil Union Bill saw the light of day in August 2006.10 This Bill provided for the conclusion of a ‘civil union’ that could take the form of either a ‘civil partnership’ or a ‘domestic partnership’. In terms of the Bill, only same-sex partners could enter into a civil partnership,11 while persons of the same or opposite sex could, in terms of chapter 3 of the Bill, enter into a registered or unregistered domestic partnership.

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THE SOUTH AFRICAN CIVIL UNION ACT 2006

The original Bill was subjected to intense criticism from the outset. Initially, much debate revolved around the procedural issue as to whether or not the Bill had been properly tabled to the Home Affairs Portfolio Committee and whether it had been properly certified by the State Law Advisors.12 As far as the content of the Bill itself was concerned, the fact that the Bill did not categorically provide for same-sex marriages, but instead provided for an approach in terms of which homosexual couples could enter into civil partnerships13 sparked much controversy.14 In addition, public hearings on the Civil Union Bill made it abundantly clear that there were many unresolved issues and that it had been met with ‘much opposition’15 from a wide range of sources.16 Indeed, in deliberations conducted on 31 October 2006, the Chairperson of the Home Affairs Portfolio Committee is reported as having concluded that ‘[t]he public was generally opposed to same sex marriages’.17 On 7 November 2006, the Democratic Alliance (DA) proposed that the Bill be amended to provide for ‘all unions between any two adult consenting partners, irrespective of gender’. On the same day, the African Christian Democratic Party (ACDP) recommended that all references to marriage in the Bill be removed, and, moreover, that chapter 3 of the Bill (dealing with domestic partnerships) be deleted in its entirety and that separate legislation in this regard be promulgated at a later stage.18 The latter sentiments appear to have been echoed by the State Law Advisors who voiced the opinion that placing domestic partnerships in the same legislation as civil unions would not succeed in complying with the Constitutional Court’s instruction to accord same-sex unions the same status as marriage.19 The next day saw a dramatic turn of events in that, not only did the African National Congress (ANC) also propose that the chapter dealing with domestic partnerships be removed in toto, but it also tabled a new draft20 of the Bill which seemingly gave effect to the DA’s proposal that civil unions be made available to all adults irrespective of gender. A new draft Bill, embodying the amendments agreed to on that day, was prepared for the following day. After a brief period of deliberation, the Bill [which (ostensibly)21 provided for gender-neutral civil unions and which (apparently)22 did not make provision for the conclusion of domestic partnerships as provided for in the original Bill]23 was adopted and sent to the National Assembly for debate where it was passed on 14 November with a total of 229 votes in favour, 41 against, and 2 abstentions. The final step in the procedure would be for the Bill to be approved by the National Council of Provinces (NCOP), a procedure which was described as being ‘largely a formality’ which would precede the Bill being ‘rubberstamped’ by the President.24 Following approval by the NCOP, the Bill was eventually promulgated as the Civil Union Act 17 of 2006.25 This Act, which came into operation on 30 November 2006, makes provision for the conclusion of a civil union that may take the form of


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either a marriage [as an alternative (i) to the ‘traditional’ civil marriage between one man and one woman as provided for in the 1961 Marriage Act and (ii) to a customary marriage26 as provided for in the Recognition of Customary Marriages Act]27 or a civil partnership.28 In her address on the occasion of the Second Reading Debate of the Bill in the National Assembly on 14 November 2006,29 the South African Minister of Home Affairs remarked that: As noted in the memorandum on the objects of the Bill, this Bill makes provision for opposite and same-sex couples of 18 years or older to solemnise and register a voluntary union by way of either a marriage or a civil partnership. (emphasis added)

These remarks were reiterated 2 weeks later prior to the Upper House debate on the Bill in the NCOP,30 where the Minister stated that: This Bill makes provision for opposite and same-sex couples of 18 years or older to solemnise and register a civil union by way of either a marriage or a civil partnership. (emphasis added)

At first glance Act 17 of 2006 appears to have achieved the objects for which it was apparently intended:31 There can be no doubt that it provides for persons of the same sex to conclude a civil union. However, upon closer inspection, an interesting question arises, namely: Does the wording of the Act clearly permit persons of the opposite sex to conclude a civil union? According to section 1 of the Act, civil union is defined as being: [T]he voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others … (italics added)

‘Civil union partner’ is defined as: [A] spouse in a marriage or a partner in a civil partnership, as the case may be, concluded in terms of this Act … (italics added)

Two further indications as to the possible field of application of the Act are to be found in two references to the words ‘same sex’, namely, sections 6 and 8(6) of the Act. These provisions read as follows: • Section 6 of the Act: A marriage officer, other than a marriage officer referred to in section 5 [ie, a minister of religion or person attached to a religious denomination or organization who has been designated as a marriage officer in terms of this Act], may in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union. (italics added)

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According to section 8(6) of the Act: A civil union may only be registered by prospective civil union partners who would, apart from the fact that they are of the same sex, not be prohibited by law from concluding a marriage under the Marriage Act or Customary Marriages Act. (italics added)

This contribution will show that, despite the statements by the Minister as to the ostensible ambit of the Act, careful scrutiny reveals that the Act does not categorically define the relationships which it covers (ie marriage and civil partnership) as either including or excluding persons of the opposite sex within its ambit.32 Indeed, not one single provision of the Civil Union Act contains any reference whatsoever to persons of the opposite sex, a fact which further substantiates the contention that the Act is poorly drafted and that the de facto wording of the Act does not necessarily reflect the situation to which the Minister alludes. Moreover, when divorced from niceties such as the statements made by the Minister (that obviously do not form part of the Act) and the ‘memorandum of objects of the Bill’ (to which most readers of the Act will not as a matter of course have access or, worse still, they might possibly not even be aware of the memorandum’s existence), it is submitted that the wording of the Act creates potential uncertainty for practitioners and lay persons alike.33 B. The Importance of Ascertaining the Ambit of the Act: The (Erstwhile) Distinction between Marriage and Extramarital Cohabitation The answer to the question as to whether or not the Act provides for heterosexual civil unions may not be of paramount importance as far as marriage is concerned, as heterosexuals have always had (and still do have) the option of marrying one another in terms of the Marriage Act of 1961. While heterosexual persons may therefore have little or no practical need for concluding a civil union in the form of marriage, the discussion that follows will illustrate that the same cannot be said regarding the conclusion of a heterosexual civil union in the form of a civil partnership. The reason for insisting that the position is clarified can best be explained by stating that, prior to the coming into operation of the Civil Union Act, marriage was the only form of conjugal relationship that was automatically recognized by South African law.34 To put it differently, the invariable consequences that attach to a South African marriage35 only applied if the parties involved were validly married in accordance with the Marriage Act 25 of 1961.36 Persons who lived together ‘as husband and wife’ in an extramarital cohabitation arrangement did not (irrespective of whether they were homo- or heterosexual) enjoy any automatic legal recognition of their union in terms of South African law37 ‘despite the fact that they often function in


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a manner similar to traditional families’. A number of aspects pertaining to the (erstwhile) distinction between marriage and extramarital cohabitation are noteworthy: • Contrary to the position of married couples, parties to a cohabitation agreement were not required to maintain one another either during the subsistence of their union or after its termination.39 The only way in which a reciprocal duty of support between cohabitants could be created was if, on the facts of the case, the cohabitants had undertaken to support one another.40 • Parties to a cohabitation agreement could not (as opposed to their married counterparts) automatically inherit intestate from one another – the only way in which the surviving cohabitant could benefit from the deceased estate was by virtue of a valid will (or in the event of no valid will having been executed, by attempting the arduous task of successfully proving a specific contribution to the joint estate).41 • In the case of a valid marriage, the parties to such a marriage can regulate the matrimonial property consequences of the marriage between themselves, by, eg, registering an antenuptial contract.42 If the spouses do not expressly choose a matrimonial property system, the ‘default’ system applies, which entails that they are automatically married in community of property.43 However, in the case of extramarital cohabitants, the common law made little or no provision for the patrimonial consequences of such a relationship – the cohabitants had to arrange this for themselves, and it was up to them to ensure an equitable distribution of property following the termination of the relationship.44 • As far as legislation was concerned, an exception to the general rule (to the effect that cohabitation was not legally recognized) occurred in that certain specific legislation sometimes placed marriage and cohabitation on equal footing. An example of this is the Medical Schemes Act 45 that defines ‘dependant’ as ‘(a) the spouse or partner,46 dependent children or other members of the member’s immediate family in respect of whom the member is liable for family care and support; or (b) …’.47 • It must be borne in mind that, prior to the coming into operation of civil union legislation, the South African Courts did succeed in bridging the gap between marriage and cohabitation to a certain extent by virtue of a number of ad hoc judicial pronouncements, the impact of some of which is considered in paragraph 2 of this contribution.48 However, the vast majority of these judicial adaptations dealt solely with same-sex cohabitants, thereby having no effect on improving the position of heterosexual cohabitants.49 • As Goldblatt (2003) mentions, the fact that the forms or types of cohabitation encountered in South Africa are many and varied,

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coupled with aspects such as historical disadvantage, socio-economic realities, a high instance of migration, and (de facto) gender inequality all contribute towards necessitating legal protection for cohabitants. In addition, this protection must be comprehensive and context specific for South Africa. In any event, as stated above, the Civil Union Act now makes provision for parties who do not wish to marry one another to conclude a civil partnership instead of marrying one another.50 In so doing, the civil union partners are now able to secure full legal recognition for a relationship that, in the past, would hardly have been recognized at all. Due to this drastic improvement in the legal position of civil union partners over mere cohabitants, it is clear that it is of cardinal importance for the Act to provide an unequivocal indication as to whether or not it allows for heterosexual cohabitants to register a civil partnership. C. The Relationships Covered by the Civil Union Act (i) A literal reading of the Act It is submitted that a purely literal reading of the provisions quoted in paragraph 1 A above could lead to the inference that the Act only applies to persons of the same sex, and that heterosexual persons may therefore not conclude a civil union. Section 6 appears to be the least restrictive of the two sections in that although it appears, at face value, that only civil unions between persons of the same sex are envisioned by the Act, there is, it is submitted, some room for arguing that section 6 only empowers the marriage officer to object to solemnizing a same-sex civil union, but not to the solemnization of a ‘heterosexual’ civil union. Consequently, it could be argued that the marriage officer is therefore given the right to object, but prima facie it does not follow that this right implies that a heterosexual union is not at all provided for by the Act. Section 8(6) appears to provide a stronger indication of the fact that the Act might only cater for persons who are of the same sex, as the wording ‘apart from the fact that they are of the same sex’ appears to ‘assume’ that all persons intending to conclude a civil union are in fact of necessity of the same sex. It is submitted that, had the solemnization of civil unions between heterosexual couples also been intended, this provision of the Act would rather have included wording such as ‘apart from the fact that they may be of the same sex’.51 However, there is still room for doubt: It could be argued that the provision merely intends to reinforce the notion that marriage is no longer an institution reserved solely for persons of the opposite sex. The aforegoing remarks clearly show that the wording of the Act (specifically as far as sections 6 and 8(6) are concerned) is unclear and


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is certainly capable of being interpreted in more than one way. Consequently, it is submitted that the principles of statutory interpretation will play a key role in determining the scope and ambit of the Act. (ii) The post-1994 approach to statutory interpretation: The ‘purposive approach’ It can be accepted that the advent of democracy in South Africa52 has brought about a change as far as the interpretation of statutes is concerned,53 mainly as an outflow of the ousting of parliamentary sovereignty in favour of constitutional supremacy.54 The erstwhile interpretative approach, which entailed a purely literal interpretation of statutory provisions based on what has been described as the ‘enigmatic or fictitious concept of the “intention of the legislature”’,55 has made way for the so-called ‘purposive’ approach56 – an approach which, according to Du Plessis (2002)57 ‘nowadays seems to be becoming the substitute for clear language as the key to constitutional interpretation’. The gist of the purposive approach is that it ‘seeks to establish the objective purpose or design of the statute and reads the words of the provision to be interpreted in the light of this’.58 The purposive approach is therefore far more encompassing in its scope than the purely literal approach, and it incorporates a wide array of both internal and external aids into the interpretative process.59 The purposive approach appears to have become essential in instances dealing with constitutional matters (such as the application or interpretation of the Bill of Rights)60 that often turn on values that are incapable of being defined with absolute certainty.61 These values are therefore formulated in an open-ended fashion as the Constitution is intended ‘to cater for an inestimable array of exigencies for a long time to come’.62 According to Du Plessis (2005),63 it would appear that post-1994 legislation is also increasingly being framed in a similar openended fashion, leading to a tendency to utilize interpretative aids (such as the preamble to the legislation)64 that were not necessarily viewed as being of primary application in the past. Finally, section 39(2) of the Constitution of 1996 firmly entrenches the interpretative approach to be followed by requiring all legislation to be interpreted in such a way as to ‘promote the spirit, purport and objects of the Bill of Rights’.65 This section is peremptory in nature, and a Court, tribunal or forum therefore has no discretion in the matter.66 According to Currie and De Waal (2005),67 section 39(2) implies that: … the [L]egislature is presumed to have intended to further the values underlying the Bill of Rights by passing legislation that is in accordance with the Bill of Rights, unless the contrary is established.

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D. Application of the Principles of Statutory Interpretation (i) The preamble to the Act Post-apartheid South Africa has seen a marked increase in the inclusion of preambles to legislation, specifically legislation dealing directly or indirectly with the nurturing and continuing evolution of a truly democratic, multi-faceted, and multi-cultural society.68 In order to assist in interpreting legislation, the utilization of preambles (as well as other interpretative aids)69 has consequently become accepted practice70 and, moreover, is considered to be indispensable in giving effect to section 39(2) of the Constitution.71 This much is highlighted by the following statement which was recently made by the South African Law Reform Commission:72 Although preambles tend to be programmatic and couched in general terms, they ought to be used during interpretation of legislation since the text as a whole should be read in its context. Although a preamble on its own can never provide the final meaning of the legislative text, post-1994 preambles should provide the interpreter with a starting point, albeit wide and general.

The preambles to latter-day South African legislation therefore often provide the necessary contextual backdrop to the interpretative process by providing broad guidelines regarding the rationale behind the promulgation of the legislation. Unfortunately, it appears as if the preamble to the Civil Union Act provides scant assistance as an interpretative tool. Indeed, it only contains one direct reference to the sex of the persons contemplated: [and noting] that the family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex couples…. (italics added)

However scant the indication, the preamble prima facie appears to create the impression that the Act was only intended to provide for the solemnization and registration of civil unions between persons of the same sex. This impression is further substantiated when considered against the backdrop provided by the original Bill73 (the preamble of which categorically stated that it provided for the solemnization of same-sex marriage and for the conclusion of domestic partnerships involving either homo- or heterosexual relationships)74 as the second Bill (which was later promulgated as the Act) contains no similar reference. It is consequently submitted that, instead of providing guidance, the preamble to the Civil Union Act only serves to further cloud the issue as to whether or not the Act provides for the conclusion of heterosexual civil unions.


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As an aside, it is noteworthy of mentioning that the preamble’s usage of the word ‘couple’ is also problematic: The word couple is defined by the South African Oxford Dictionary75 as, inter alia, denoting two persons who are married to one another or who are ‘otherwise closely associated romantically or sexually’. However, if this is the case, the phrase to the effect that the post-Constitutional era ‘did not provide for same-sex couples to enjoy the status and benefits coupled with the responsibilities that marriage accords to opposite-sex couples’ creates further uncertainty as it appears to lose sight of the fact that neither same nor opposite sex unmarried couples enjoyed the benefits and obligations imposed by marriage – only opposite sex couples who had elected to marry one another in terms of marriage legislation (such as the Marriage Act of 1961 or, in latter years, the Recognition of Customary Marriages Act)76 did.77 To put it differently, the preamble does not seem to state clearly that it recognizes the fact that cohabitants (whether of the same or opposite sex) who did not wish to marry, but who merely desired legal recognition and protection of their relationships, were not previously entitled to the benefits and subjected to the obligations associated with marriage. While it may be argued that the context of the legislation allows for the inference to be drawn that the preamble includes cohabitating couples of the same sex,78 it is submitted that the uncertainty referred to above is especially true in the case of persons of the opposite sex. It is suggested that the preamble could have been phrased in such a manner as to make clear and express provision for both homo- and heterosexual cohabitants to secure legal recognition of their relationships by way of the conclusion of a civil partnership.79 (ii) The definition clause It goes without saying that the definition of civil union is of vital importance to the interpretative process. The definition in question possibly provides the strongest indication of the fact that heterosexual persons are included within the scope of the definition of a civil union as it refers to the ‘voluntary union of two persons …’. However, for the reasons outlined in paragraphs 1 A and C above, it is submitted that the definition itself does not, without more, clarify the uncertainty in a satisfactory fashion. This submission is further strengthened by the possible argument that the reference to ‘two persons’ was not inserted in order to provide for heterosexual civil unions, but was instead inserted to provide for intersexed or transgender persons as, if the Act had categorically defined a civil union as being between ‘two persons of the same sex’ they may have been excluded. In closing, it is a pity that the Act does not categorically define the concept ‘civil partnership’.

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(iii) The presumption that statutes do not alter the existing law more than is necessary Du Plessis (2002)80 explains this presumption as follows: Legislation must, in other words, be interpreted in the light of the common law, must as far as possible be reconciled with related precepts of the common law and must be read to be capable of co-existing with common law in pari materia.

In S v Collop81 the Appellate Division stated that: It is a sound rule to construe a statute in conformity with the common law rather than against it, except where and so far as the statute is plainly intended to alter the course of the common law.

This presumption could play an important role in interpreting the Civil Union Act, especially in view of the Constitutional Court’s decision in the Fourie case. As was seen above, in Fourie the Constitutional Court declared that the common law definition of marriage was invalid ‘to the extent that it does not permit same-sex couples to enjoy the status and the benefits coupled with responsibilities it accords to heterosexual couples’.82 With the promulgation of the Civil Union Act, all the legal consequences that are contemplated in the Marriage Act of 1961 were made applicable to civil unions.83 Section 13 of the Civil Union Act therefore appears to have given effect to the Constitutional Court’s order – the same rights and obligations attaching to a marriage in terms of the 1961 Act have now been made applicable to civil unions. Furthermore, the Marriage Act was not repealed by the Civil Union Act and heterosexual persons therefore still have the option of acquiring all the rights and responsibilities attaching to marriage in terms of the former Act. In consequence hereof, there appears to be no apparent need for the Civil Union Act to apply to heterosexual marriages at all. In light hereof, it could certainly be argued that a combination of the following points, namely, (i) the fact that a presumption applies that statutes do not alter the existing law more than necessary coupled with (ii) the fact that heterosexual marriage is still possible in terms of the 1961 Marriage Act, (iii) the fact that the Civil Union Act appears indeed to have altered the common law as far as the Fourie case deemed it to be necessary by complying with the minimum demands84 set by the Constitutional Court’s order (ie, by remedying the position as far as homosexual couples were concerned), and (iv) the fair assumption that could be made to the effect that there is no apparent or compelling reason for having two pieces of legislation that both allow for heterosexual marriage (and that doing so would amount to superfluity) could lead to the conclusion that the Civil Union Act only applies to same-sex civil unions. The only counter-argument that could be raised would then relate to the fact that no other South African legislation provides for the solemnization and registration of civil partnerships, and


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that, in this regard, it could be argued that the Civil Union Act has expressly altered the erstwhile (common law) position in respect of both homo- and heterosexual persons. Whether this argument would refute the argument pertaining to marriage (as explained above) is open to debate, and any reasonable person would have to agree that, all things considered, the position is, at best, very uncertain. (iv) Interpreting in conformity with the Constitution The principle of ‘interpretation in conformity with the Constitution’85 was expressly provided for in sections 35(2)86 and 232(3)87 of the Interim Constitution of 1993.88 This approach, also known as ‘reading down’89 or ‘constitutional pruning’,90 has been described by the Constitutional Court91 as being: … a method of constitutional construction whereby a more limited meaning is given to a statutory provision, where it is reasonably possible to do so, in order that the provision in question may not be inconsistent with the Constitution.92 (italics added)

Although it was elevated to the status of being a constitutional imperative by the very first democratic Constitution in South Africa, the principle encapsulated by the two provisions of the Interim Constitution was in fact nothing new in our law93 as it represented a codification of the common law principle ut res magis valeat quam pereat94 which was derived from Roman law namely in ambigua voce legis ea potius accipienda est significatio, quae vitio caret.95 It is interesting to note that the Constitution of 1996 contains no similar provision, with the result that the common law currently applies in this regard.96 Nevertheless, according to Du Plessis (2002),97 the principle of reading in conformity with the Constitution is currently ‘reinforced’ by section 39(2) of the Constitution of 1996. As seen above, the latter provision requires all law to be interpreted in such a way as to promote the ‘spirit, purport and objects of the Bill of Rights’. It is submitted that the saving grace as far as the Civil Union Act is concerned is probably to be found in this section. As Currie and De Waal (2005) state: … a literal meaning will be an acceptable interpretation of a provision only if it accords with a ‘generous’ and ‘purposive’ interpretation that ‘gives expression to the underlying values of the Constitution’.98

It is therefore clear that the literal provisions of the Civil Union Act that may lead to the inference that the Act only caters for couples of the same sex may have to be interpreted so as not to exclude persons of the opposite sex from concluding a civil union – a situation which does not exactly epitomize legal certainty. Notwithstanding the above, it is important to bear in mind that the Constitutional Court has categorically stated that the duty to interpret

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legislation in line with the Constitution is counterbalanced by the duty to draft legislation in such a way as to be clear and understandable.99 For example, in Islamic Unity Convention v Independent Broadcasting Authority and Others100 Yacoob J stated that: … a balance must be struck between the duty of a judicial officer to interpret legislation in conformity with the Constitution insofar as it is reasonably possible, and the duty of the Legislature to pass legislation that is reasonably clear and precise, enabling citizens to understand what is expected of them.

Within the context of the Civil Union Act, the question that now arises is whether the Act has been drafted in such a way as to enable the average South African citizen or official to understand what is expected of him or her. In the light of the above discussion (which can be corroborated by a number of examples which are indicative of the confusion caused by the unclear drafting),101 it is submitted that it has not.

2 . F U RT H E R I N S TA N C E S O F L E G A L U N C E RTA I N T Y C R E AT E D BY THE ACT AND THE JUDICIARY A. Introduction As seen in the preceding discussion, the Civil Union Act of 2006 has drastically altered the South African family law landscape in that it not only provides for full legal recognition to be accorded to civil unions, but also regulates the legal consequences of the conclusion thereof. These legal consequences are regulated by section 13 of the Act, which provides that: (1) The legal consequences of a marriage contemplated in the Marriage Act apply, with such changes as may be required by the context, to a civil union. (2) With the exception of the Marriage Act and the Customary Marriages Act, any reference to(a) marriage in any other law, including the common law, includes, with such changes as may be required by the context, a civil union; and (b) husband, wife or spouse in any other law, including the common law, includes a civil union partner.102

It is important to note that the legal consequences mentioned in section 13 do not without more apply to persons who live together permanently – such persons are required to take the proactive step of concluding a registered civil union that complies with the requirements and formalities prescribed by the Act before they can be assured of securing full legal recognition of their marriage or civil partnership. It must however be borne in mind that a period of almost 13 years elapsed between the advent of a democratic Constitutional dispensation in South Africa (on 27 April 1994), and the coming into operation of


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the Civil Union Act on 30 November 2006. It is therefore not surprising that a number of ad hoc instances arose during this interim period in which the Courts were requested to (and indeed often did) extend particular personal consequences pertaining to marriage to homosexual people living together permanently.103 The premise for these extensions specifically related to the fact that homosexual cohabitants could not legally conclude valid marriages at the time.104 Although it can certainly be argued that these developments were progressive in that they furthered a human rights culture in South Africa, it must also be mentioned that there is a downside in that a number of anomalies have been created as a result of the fact that these extensions have not (yet) been made applicable to heterosexual cohabitants. From the outset, it must be remembered that a Court cannot necessarily be blamed in a situation in which a homosexual couple approaches it for relief which, when granted, creates a legal anomaly regarding the legal position of heterosexual cohabitants, for, as Devenish states: … a [C]ourt should decide no more than what is absolutely necessary for the adjudication of a case. It is undesirable for [C]ourts to anticipate constitutional questions or to decide them in advance of the necessity of such a decision arising and, where it is possible to dispose of a case without addressing any potential constitutional issue, that course should be followed. … [This rule] is particularly important in constitutional matters, since this branch of the law should be developed cautiously, judiciously and pragmatically.105

However, the same cannot be said of the legislature that, in the exercising of its law-making functions, is required to do just that – it must legislate when necessary and, when doing so, must legislate comprehensively. As such, it is therefore obviously not subjected to the same constraints as the judiciary. As will be seen below, the fact that the Civil Union Act is silent on many of these anomalous issues is therefore all the more vexing. Set against this backdrop, it appears that two issues are pivotal in assessing the efficacy of the Civil Union Act, namely: (a) Does the Act provide for two heterosexual persons to conclude a civil union? This question is important because, as will be seen below, if the Act does indeed permit persons of the opposite sex to conclude a civil union, a number of the anomalous consequences which might otherwise ensue can, to a certain extent, be circumvented. (b) Does the law differentiate between the position of two heterosexual persons who merely cohabit (and therefore do not conclude a civil union or marry in terms of other marriage legislation),106 and two homosexuals who do the same?

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In the paragraphs that follow, a number of the anomalies upon which the above-mentioned issues are founded, will be discussed. B. Anomaly 1: Adoption The judgments preceding the Civil Union Act have created a strange anomaly in respect of the adoption of children. Du Toit v Minister of Welfare and Population Development107 dealt with section 17 of the Child Care Act.108 This provision determined that a child may only be adopted ‘(a) by a husband and his wife jointly; (b) ….’ The Constitutional Court held that this section discriminates unfairly against people living together in a same-sex life partnership: The impugned provisions do not prevent lesbian or gay people from adopting children at all. They make no provision, however, for gay and lesbian couples to adopt children jointly. … It is a matter of our history … that these relationships have been the subject of unfair discrimination in the past. However, our Constitution requires that unfairly discriminatory treatment of such relationships cease.109

Consequently, the decision of the Constitutional Court allowed homosexual cohabitants to adopt children legally but, as the situation currently stands, South African law does not allow heterosexual cohabitants the same privilege. It goes without saying that there is no justification for this position after the coming into operation of the Civil Union Act. Moreover, the importance of resolving the question as to whether or not heterosexual persons are included within the ambit of the latter Act is clearly illustrated by this discrepancy, as section 13 of the latter Act would resolve this issue in the case of persons who have concluded a valid civil union110 because of the fact that the words ‘husband’ and ‘wife’ in section 17 of the Child Care Act111 would henceforth have to be read in such a way as to include civil union partners, thereby providing for heterosexual civil union partners to adopt within this framework as well. It is to be noted, though, that section 231 of the Children’s Act112 (of which certain sections came into operation on 1 July 2007) appears to solve the problem by stipulating in this respect that a child may be adopted jointly by, inter alia, ‘a husband and a wife, partners in a permanent domestic life-partnership113 or by other persons sharing a common household and forming a permanent family unit …’. Unfortunately, section 231 has not yet come into operation, which implies that the anomaly explained above will persist until the section in question becomes operative.114 C. Anomaly 2: Maintenance A further aspect that needs to be considered by the Legislature relates to the issue of maintenance. In Du Plessis v Road Accident Fund,115 the


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Supreme Court of Appeal (SCA) did not make an order in respect of the constitutionality of the Road Accident Fund Act116 but instead focused on the question as to whether or not the common law action for damages for loss of support should be developed to include a person involved in a permanent same-sex life partnership. The Court found that the plaintiff and the deceased had undertaken a reciprocal duty of support117 that was worthy of constitutional protection.118 On this basis the Court set out to develop the common law in terms of section 173 of the Constitution119 that provides that the SCA and the High Courts have the inherent power to develop the common law. It held as follows: To extend the action for loss of support to partners in a same-sex permanent life relationship similar in other respects to marriage, who had a contractual duty to support one another, would be an incremental step to ensure that the common law accords with the dynamic and evolving fabric of our society as reflected in the Constitution …120 (italics added)

The Court then referred to recent judicial pronouncements and legislation to illustrate the extent of express or implied recognition that had been accorded to same-sex partnerships up until that point.121 As far as maintenance is concerned, the unsatisfactory state of affairs that persists in South African law in consequence of the Du Plessis case is succinctly summarized by Cronjé and Heaton (2004)122 when they state that: … [E]ven if heterosexual life partners contractually undertake a duty of support, the surviving heterosexual life partner does not have a claim for damages for loss of support, while a surviving same-sex life partner has such a claim.

In the meantime, one of the first post-1994 decisions involving the possibility of increasing the legal recognition enjoyed by heterosexual life partnerships was being adjudicated by the South African courts. In Volks NO v Robinson and Others,123 the facts clearly showed that the deceased and the survivor, heterosexual partners in a permanent life partnership, had been involved in a relationship substantially similar to a marriage relationship. The deceased supported the survivor financially and she was even accepted as a dependant on his medical aid scheme.124 After his death she instituted a claim against his estate in terms of section 2(1)125 (read with the section 1 definition of ‘survivor’)126 of the Maintenance of Surviving Spouses Act.127 In essence, her argument ran along the line that the survivor in a permanent heterosexual relationship who, together with the deceased cohabitant, had lived a life akin to that of husband and wife should be afforded the same protection as that which is afforded to the survivor of a marriage that has been terminated by the death of one of the spouses. The Constitutional Court rejected this argument. After reiterating the fact that the purpose of the Act was to extend one of the invariable

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consequences of marriage (in this instance the reciprocal duty of spouses to maintain each other) beyond the death of one of the spouses,128 the Court came to the conclusion that an interpretation of the Act that would include permanent life partnerships would be ‘unduly strained’ and ‘manifestly inconsistent’ with the text.129 Skweyiya J also emphasized the importance of marriage as an institution that provides for the ‘security, support and companionship of members of our society’130 and concluded that the law could legitimately distinguish between married and unmarried people:131 The distinction between married an unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married people, no duty of support arises by operation of law in the case of unmarried cohabitants.132 (italics added)

Reading Volks in conjunction with Du Plessis leads to an anomalous result: An ex lege duty to support did not exist in either case. In both situations, the facts clearly showed that the parties involved had (contractually) undertaken to maintain one other. In Du Plessis, the Court was prepared to extend the common law to include homosexual life partnerships, whereas in Volks the Court refused to adapt the law in respect of heterosexual life partners. Within the context of the issues before the Courts in Du Plessis and Volks, the civil union legislation has (once again) brought about a drastic alteration to the legal landscape: The common law action for loss of support will henceforth have to be interpreted so as to provide for civil unions, while the surviving partner to a civil union will similarly be entitled to benefit in terms of the Maintenance of Surviving Spouses Act.133 In conclusion, the two pivotal issues mentioned in 2 A above need to be borne in mind, namely, (i) the fact that uncertainty persists as to whether or not the Civil Union Act clearly permits persons of the opposite sex to conclude a civil union and (ii) the fact that the legal consequences referred to in section 13 of the Act do not apply to cohabitants per se but only apply if a valid civil union has indeed been concluded in terms of the Act. The importance of resolving the first aspect has been explained above and it is therefore unnecessary to canvass this issue again. In respect of the second aspect, the anomalous situation is, once again, simply perpetuated by the fact that cohabiting parties of the same-sex do not need to take the proactive step of registering a valid civil union in order to have the loss of support claim extended, while cohabitants of the opposite sex do not currently enjoy similar protection. In addition, the unwillingness displayed by the Constitutional Court to develop the law in respect of heterosexual cohabitants serves further to highlight the fragmented and disjointed landscape that currently characterizes the position of both homo- and heterosexual cohabitants in South African family law.134


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D. Anomaly 3: Intestate Succession The Intestate Succession Act 81 of 1987 makes provision for (inter alia) the surviving spouse and children of a person who dies either entirely or partially intestate to inherit the intestate estate.135 Originally, the Act only catered for spouses who had concluded a valid civil marriage that had been solemnized and registered in accordance with the Marriage Act 25 of 1961. However, it goes without saying that the advent of a human rights culture has necessitated a more inclusive and pluralistic approach towards intestate succession in South Africa. In this regard, the following developments have recently occurred: (i) Marriages concluded according to religious rites only The issue as to whether or not the Intestate Succession Act 136 applied to certain religious marriages arose in Daniels v Campbell.137 In this case, the parties were married according to the rites of the Islamic faith, without their marriage being solemnized and registered in accordance with the Marriage Act 25 of 1961. At present, Islamic religious marriages are not (save for the purposes of certain specific legislation)138 regarded as being valid according to South African law,139 although it has been held that effect can be given to the underlying contractual obligations pertaining to the parties to a de facto monogamous Islamic marriage (see Ryland v Edros).140 In Daniels, the Constitutional Court held that the surviving spouse of a monogamous Islamic marriage qualified as a ‘spouse’ for the purposes of the Intestate Succession Act141 and could therefore inherit intestate. (ii) Customary marriages Prior to the decision in Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae),142 the deceased estates of parties to a marriage concluded in accordance with customary law143 devolved according to customary law of succession, which was based on the principle of male primogeniture. In Bhe, this principle was found to be in conflict with the Bill of Rights and the ambit of the Intestate Succession Act144 was consequently expanded to encompass both monogamous and polygamous customary marriages.145 (iii) Homosexual life partners The developments in (i) and (ii) above all dealt with deceased estates of persons who had passed away while being married in terms of either customary law, or the tenets of a specific religion. However, in Gory v Kolver NO and Others (Starke and Others intervening),146 the Constitutional Court expanded the ambit of Act 81 of 1987 even further by finding that the omission of the words ‘or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support’ after the word ‘spouse’ in

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section 1(1) of the Act was unconstitutional.147 In consequence hereof, the Court held that these omitted words had to be read into the provision in question. Furthermore, in a surprising step, the Court held that these words would not merely apply to prospective readings of the Act, but that the omitted words had to be read in ‘with effect from 27 April 1994’.148 The retrospective effect of the order would (mercifully!) not invalidate any transfer of property that had taken place prior to the order unless ‘the transferee was on notice that the property in question was subject to a legal challenge’ on the same basis as the application in casu.149 (iv) Conclusion The upshot of the developments elucidated above is that the Intestate Succession Act150 currently applies to most marriage and marriage-like institutions encountered in South Africa. However, there is one important exception – heterosexual life partners are not included within the ambit of the Act, irrespective of whether or not they have undertaken to maintain one another. Once again, this state of affairs amply illustrates the importance of clarifying the issue as to whether or not the Civil Union Act makes provision for the conclusion of heterosexual civil unions. If it does, section 13 of the latter Act will automatically allow for the parties to such a union to inherit intestate, and the only differentiation encountered would then relate to the fact that heterosexual cohabitants who are either unmarried or who have not concluded a civil union would not be allowed to inherit intestate (while their same-sex counterparts who had undertaken to maintain one another would). However, should the Civil Union Act not provide for heterosexual civil unions to be included, the differentiation would be encountered on two fronts as section 13 of the latter Act would not be of any assistance whatsoever. 3 . AN EXAMPLE OF A JURISDICTION WHERE CONFUSION IS MINIMIZED: THE NETHERLANDS A. Introduction Dutch law provides three options that (to varying degrees) afford legal recognition to parties to a monogamous relationship: (i) Marriage On 1 April 2001, the Netherlands became the first country to allow persons of the same sex to marry. Although the process was long and arduous, the end result of this monumental step was brought about by a simple amendment to Book 1 of the Burgerlijk Wetboek151 article 30 of which now states that a civil marriage152 can be concluded between two persons of the opposite or of the same sex:


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1. Een huwelijk kan worden aangegaan door twee personen van verschillend of van gelijk geslacht.

In principle, there are only two major differences153 between heteroand homosexual marriages, in that: • Although homosexual couples may, irrespective of their marital status, adopt Dutch children,154 they are not allowed to participate in inter-country adoptions,155 and • In the case of heterosexual spouses, Dutch law presumes that the husband is the father of any child(ren) born to his wife.156 This presumption attaches by operation of law and applies even if the husband is not the biological father of the child(ren).157 In the case of homosexual spouses, only the biological parent is regarded as being the legal parent of the child, unless the other spouse adopts the child(ren).158 However, the mere fact that she is married to the biological mother of the child(ren) automatically entitles the other spouse to a lesbian marriage to exercise joint parental authority over any child(ren) born during that marriage,159 ‘unless a man (normally with consent of the mother) has acknowledged the child as his own before its birth’.160 Apart from the differences elucidated above, both hetero- and homosexual marriages are subjected to the same conditions and result in the same consequences in as far as the rights and obligations attached to marriage are concerned.161 By opening up civil marriage to encompass same-sex marriage, the Dutch Legislature appears to have achieved a fairly equitable and realistic result in a seemingly effortless fashion. (ii) Registered partnerships Approximately 3 years before civil marriage was opened up to homosexual couples, the Netherlands became one of the first countries162 to provide unmarried couples with the option of securing legal recognition of their relationships via registered partnership legislation.163 As in the case of same-sex marriage, this development was not precipitated by the judiciary, but was occasioned by the Dutch Legislature, who, interestingly enough, initially intended to make registered partnerships available to same-sex couples only.164 However, the two Acts165 promulgated on 1 January 1998 make provision for both homo- and heterosexual couples to formalize their relationships by concluding a registered partnership:168 1. Een persoon kan tegelijkertijd slechts met één andere persoon van hetzelfde of andere geslacht een geregistreerd partnerschap aangaan.

For the most part, Dutch law dictates that the legal consequences of a registered partnership are exactly the same as for the conclusion of a

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civil marriage.167 Regarding the differences between marriage and registered partnerships, the following are the most important: • As in the case of same-sex spouses, registered partners are excluded from inter-country adoptions;168 • Registered partnerships can be terminated by way of mutual agreement between the parties themselves – Court intervention is not required;169 and • The partner of the biological parent of a child born in a registered partnership is not automatically regarded as being the legal parent of that child. However, in accordance with legislation that became effective in 2002, both partners (irrespective of whether the partners are lesbians or of the opposite sex) are awarded joint parental authority over the child unless the father has, with the cooperation of the mother, acknowledged paternity before the child’s birth.170 (iii) Informal cohabitation agreements As seen above, Dutch couples who do not wish to marry one another have the option of entering into a registered partnership. Should they not wish to exercise this option, it is also possible for two persons (whether of the same or opposite sex) to enter into a cohabitation contract or agreement that will govern their relationship. This agreement only binds the parties to it, and furthermore, is only binding to the extent of the terms included therein – Dutch law does not presuppose any contractual content.171 Dutch law distinguishes between hetero- and homosexual cohabitants in the sole sense that an unmarried man can acknowledge paternity without having to adopt his child.172 However, as can be deduced from this discussion, it stands to reason that the differentiation between cohabitants and spouses (and registered partners) is far more pronounced.173 B. Conclusion When compared with the position in South African law, an analysis of Dutch law reveals the following issues: (i) Demarcation Dutch law provides a clear demarcation regarding marriage, registered partnership, and cohabitation. In contrast, the current position in South African law is blurred: a) ‘Heterosexual marriage’ can definitely take place in terms of two statutes,174 while the wording of a third statute (namely, the Civil Union Act) regarding heterosexual marriage is unclear; b) A marriage can also be concluded between ‘same-sex couples’, in which case it is officially defined as a ‘civil union’;


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c) As mentioned in (a) above, uncertainty prevails as to whether or not heterosexual couples can also conclude a civil union.175 The effect of this uncertainty is not as pronounced in the case of marriage as in the case of a civil partnership; d) As Van Schalkwyk (2007)176 mentions, the effect of the Civil Union Act regarding customary marriages is unclear;177 e) As far as the legal position of couples who (i) are unmarried or (ii) have not concluded a civil union is concerned, the legal position is especially unsatisfactory as substantial differences currently exist between the legal protection or recognition enjoyed by homosexual as opposed to heterosexual couples.178 (ii) Parliamentary procedures The legislative developments in the Netherlands were the end result of well-conceived and carefully considered Parliamentary procedures. This assertion is borne out by the fact that, in the case of registered partnerships, developments had already been afoot as early as 1992 with the final product only appearing in 1998, while in the case of samesex marriage a period of 5 years elapsed between a resolution passed in the House of Representatives in favour of homosexual marriages (April 1996) and the eventual coming into operation of the new insertion to Article 30(1) of the Dutch Civil Code on 1 April 2001.179 Whether this much can be said regarding the South African scenario is debateable: The South African Law Reform Commission initially commenced with research into the question of domestic partnerships in 1998 and the Commission’s final report appeared in March 2006.180 Therefore, a period of 8 years elapsed, during which valuable ‘holistic, systematic, structured, and consultative’181 research was conducted. When the procedure followed in the Netherlands is compared to the South African scenario, two remarks are apposite: • Firstly, over and above the fact that, from the outset, uncertainty prevailed regarding the procedures followed in tabling the original Bill and whether it was properly placed before the Portfolio Committee, it is noteworthy to consider that the new draft Bill (that was prepared and submitted to the Portfolio Committee by the ANC in November 2006)182 was not the one which had been subjected to public debate and consultation183 (for which consultation the Portfolio Committee had in fact earlier been commended).184 • Secondly, the comparison with the Netherlands highlights another important contrast in that, within a period of only a few months,185 the South African Parliament not only legalized same-sex marriage, but legislated on (undefined!)186 civil partnerships as well. In this regard, an interesting aspect which cannot be overlooked is that, when the new draft Bill was introduced at the Home Affairs

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Portfolio Committee sitting of 8 November 2006, it was stated that all references to ‘domestic partnerships’ (as provided for in chapter 3 of the original Bill) would be removed:187 A key proposal by the ANC, that received general support from other parties, was that all reference to domestic partnerships should be removed from the Bill and this issue should be dealt with in a separate Bill early next year.188

However, despite the Portfolio Committee apparently agreeing to the ANC’s proposal not to legislate on domestic partnerships, the fact that the new Bill189 (as adopted by the Portfolio Committee the very next day and which would be promulgated as the Civil Union Act three weeks later) made provision for civil partnerships, means that they actually legislated on this issue anyway! It could certainly be argued that the fact that Parliament enacted legislation that provided for same-sex marriage is not the problem and cannot be faulted – the judicial developments prior to the enactment were clear on this issue and were unanimous regarding the fact that marriage as an institution reserved for heterosexuals only could no longer be countenanced in a free and democratic South Africa.190 However, the same cannot be said regarding the concept which the Act describes as civil partnership – it is submitted that the problematic issues and anomalies already identified in this contribution provide ample proof of the fact that Parliament was too hasty in legislating on this issue. This submission is substantiated by the fact that one of the reasons provided for the proposal to the Home Affairs Portfolio Committee as to why domestic partnerships were not to be included in the legislation is reported as being that: The ANC did not seek to negate the status of women in any way by means of the proposal [not to legislate on domestic partnerships] but was of the opinion that the issue of domestic partnerships would be better served in a separate piece of legislation as there would then be time to explore all legal ramifications.193

In addition, it is also submitted that Parliament might have paid closer attention to the recommendations proposed by the South African Law Reform Commission (eg, the proposal that a separate Domestic Partnership Act should be enacted which categorically provides for both same- and opposite-sex couples)192 especially in view of the fact that the Constitutional Court had expressed support not only for the work done by the Commission but also for the ‘prolonged and intensive engagement by [the Commission] with the public’.193 (iii) Incremental changes As an outflow of (ii) above, the legislative developments in the Netherlands that eventually culminated in the full legal recognition of same-sex marriages were achieved, in the words of Waaldijk (2004) ‘[by operation of] the law of small change’.194 By contrast, it is submitted


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that the South African Legislature, especially as far as civil partnerships are concerned, possibly sought to achieve too much too fast without careful consideration of the end result.195

CONCLUSION

The Civil Union Act of 2006 was promulgated in consequence of a judgment of the highest court in South Africa, in which it was found that the body of South African legislation as comprised at that point contained a fatal omission in that it did not provide for persons of the same sex to marry one another. In the majority judgment Sachs J intimated that the remedial legislative intervention required should not solely provide relief for same-sex couples, but that: … whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved.196 (italics added)

Although the Civil Union Act did succeed in realizing one of its primary objectives, namely that of formalizing the position of same-sex life partnerships for the first time in South African law, it is submitted that, in its current form, the Act shows that its drafters have paid mere lip service to the guidelines proffered by both the Constitutional Court and, especially, the South African Law Reform Commission regarding the specific nature of the legislation which had found to be lacking in South Africa. The two fundamental issues referred to in paragraphs 2 and 3 of this contribution illustrate the unsatisfactory position in which South African law currently finds itself in a palpable fashion: • Regarding the first one (namely whether the Act clearly and unequivocally provides for heterosexual civil unions), the question remains as to why it should be necessary to resort to the principles of statutory interpretation197 about such a fundamental issue. It boggles the mind to think that the Legislature could, bearing the specific and clear instructions of the Constitutional Court (coupled with the valuable research conducted by the South African Law Reform Commission) in mind, pass legislation that is even remotely unclear on this point. • Regarding the second issue (the anomalies referred to in paragraph 2 of this contribution), the silence of the Legislature on the status of the piecemeal extension of personal consequences pertaining to marriage to heterosexual partnerships not only causes uncertainty, but also, it is submitted, leads to unfair discrimination. In conclusion, in the Fourie case Sachs J stated that the memorandum submitted to the Court by the South African Law Reform Commission

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made it clear that developments since the 2000 decision in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs:198 had led to a patchwork of laws that did not express a coherent set of family law rules.

Although the Civil Union Act has certainly ameliorated the problems faced by homosexual couples, it appears, in the light of the interpretative and other problems elucidated above, that the Legislature has added a few patches to the incoherent set of rules referred to by Sachs J instead of creating new fabric. Furthermore, if it is borne in mind that the Act in its final form appeared a mere 3 months after the original (far more comprehensive) Bill first appeared,199 the Act appears to be a good example of bad drafting that illustrates the dangers of rushing the legislative process.

NOTES 1 The Constitutional Court is South Africa’s highest court in all constitutional matters. It is a specialist court, and not a court of general jurisdiction (see Currie and De Waal 2005: 103). The jurisdiction of the Constitutional Court is set out in section 167(3)–(6) of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as ‘the Constitution’):

‘(3) The Constitutional Court: (a) is the highest court in all constitutional matters; (b) may decide only constitutional matters, and issues connected with decisions on constitutional matters; and (c) makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter. (4) Only the Constitutional Court may: (a) …; (b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121; (c) … (5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force. (6) … (7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution. 2

2006 (1) SA 524 (CC). For an exposition of the development of the concept of marriage, see Robinson (2005) at 488–92. 4 The details of the original proceedings, per Sachs J in the Constitutional Court judgment in the Fourie case (at para [7]), are Fourie and Another v Minister of Home Affairs and Another (The Lesbian and Gay Equality Project Intervening as amicus curiae): Unreported judgment of the Pretoria High Court (case no 17280/02) delivered on 18 October 2002. The subsequent proceedings can be summarized (as per the Fourie case at paras [7]–[38]) by stating that the 2002 application was dismissed and was followed by a further application to the Pretoria High Court which granted leave to appeal to the Supreme Court of Appeal SCA, but not to the Constitutional Court. The applicants then approached the Constitutional Court for leave to 3


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appeal directly to it, but this application was set aside. The SCA delivered its judgment on 30 November 2004 (Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA)) in terms of which the applicants’ appeal was upheld in part. This judgment was followed by an appeal and cross-appeal to the Constitutional Court, eventually leading to the latter Court’s December 2005 judgment. 5 It is important to note that recourse had to be had to the common law definition of marriage, as the Marriage Act 25 of 1961 did not define this concept. 6 For example, see Ismail v Ismail 1983 (1) SA 1006 (A) where marriage was defined as being ‘… the legally recognized voluntary union for life of one man and one woman to the exclusion of all others while it lasts’ (at 1019 (H)) and Farlam JA’s minority judgment in Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) at paras [83]–[84]. 7 See the Fourie case at para [162]. 8 25 of 1961. The section in question states that: ‘[i]n solemnizing any marriage any marriage officer designated under section 3 may follow the marriage formula usually observed by his religious denomination or organization if such marriage formula has been approved by the Minister, but if such marriage formula has not been approved by the Minister, or in the case of any other marriage officer, the marriage officer concerned shall put the following questions to each of the parties separately, each of whom shall reply thereto in the affirmative: “Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?”, and thereupon the parties shall give each other the right hand and the marriage officer concerned shall declare the marriage solemnized in the following words: “I declare that A.B. and C.D. here present have been lawfully married”’. 9 See http://www.sabcnews.com/south_africa/social/0,2172,139205,00.html (accessed on 8 September 2007). 10 [B 26–2006] as published in Government Gazette No 29169 of 31 August 2006. 11 According to the original Bill, civil partnership was defined as ‘the voluntary union of two adult persons of the same sex that is solemnized and registered in accordance with the procedures prescribed in this Act to the exclusion, while it lasts, of all others’ (emphasis added). 12 http://www.pmg.org.za/viewminute.php?id=8237 (accessed on 19 October 2007). However, on 1 November 2006 (nearly 2 months later) the Home Affairs Portfolio Committee eventually concluded that the Bill was properly before it – see http://www.pmg.org.za/viewminute. php?id=8448 (accessed on 21 October 2007). 13 The only reference to marriage was in clause 11.1 of the original Bill, which provided that ‘A marriage officer must inquire as to whether the parties appearing before him or her would prefer their civil partnership to be referred to as a civil partnership or a marriage during the solemnisation ceremony and must thereupon proceed by solemnising the civil partnership in accordance with the provisions of this section and in accordance with the wishes of both parties, if they are in agreement, referring to either a civil partnership or a marriage in reading the formula. If the parties are not in agreement, the marriage officer must, in reading the formula, refer to a civil partnership’. 14 See http://www.pmg.org.za/viewminute.php?id=8237 (accessed on 19 October 2007); Du Plessis (2006) ‘Gay activists see red over Civil Union Bill’ available at http://www.iol.co.za/index. php?set_id=14&click_id=6&art_id=vn20061018030414526C988603 (accessed on 21 October 2007). 15 According to Mr S. Swart of the ACDP – see http://www.pmg.org.za/viewminute.php?id=8292 (accessed on 19 October 2007). 16 For example, the Joint Working Group (according to http://www.jwg.org.za/ this group is ‘a national network of LGBTI [lesbian, gay, bisexual, transgender and intersex]-focused organizations in South Africa)’ was of the opinion that ‘[c]ivil partnerships were not equal to marriage in that they did not carry the same reputation, influence, standing in the community, prestige, rituals and spiritual and religious meaning’. On the other hand, the Christian Lawyers Association was of the opinion that the definition of marriage was not at issue, but that the Fourie case had simply instructed parliament to promulgate legislation that would accord the same rights and consequences to same-sex couples as to heterosexual spouses – see http://www.pmg.org.za/ viewminute.php?id=8350 (accessed on 21 October 2007) and http://www.pmg.org.za/viewminute. php?id=8504 (accessed on 21 October 2007). For a summary of submissions on the original Civil Union Bill, see http://www.pmg.org.za/docs/2006/061024mankge.htm. 17 http://www.pmg.org.za/viewminute.php?id=8431 (accessed on 21 October 2007). 18 http://www.pmg.org.za/viewminute.php?id=8488 (accessed on 21 October 2007).

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http://www.pmg.org.za/viewminute.php?id=8488 (accessed on 21 October 2007). In this regard, a spokesperson for the DA was quoted as saying ‘[i]t is unfortunate that the ANC pulled the amended version of the Civil Union Bill out of the bottom drawer merely a day before voting in committee. Surely the portfolio committee on home affairs has misled the public in the hearings because the version before us is not the one presented at all the hearings” (italics added) – see http://www.mg.co.za/articlePage.aspx?articleid=289936&area=/breaking_news/ breaking_news__national/ (accessed on 21 October 2007). For further criticism of the ANC’s draft proposal, see http://www.avc.org.za/papers/President.pdf (accessed on 23 October 2007). 21 See the discussion on the uncertainty regarding this issue in para 1 C below. 22 See para 3 B (ii) below where this aspect is explained. 23 See the discussion on anomalies created by the Act in para 2 below. This omission was allowed despite the fact that the Director: Drafting, Legal Services, Department of Home Affairs had categorically stated that the original Bill had made provision for domestic partnerships in consequence of the Constitutional Court decision of Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) (this case is discussed in para 2 C below) – see http://www.pmg.org.za/ viewminute.php?id=8488 (accessed on 21 October 2007). 24 http://www.iafrica.com/news/sa/416904.htm (accessed on 21 October 2007). 25 Government Gazette No. 29441 of 30 November 2006. For criticism of a number of aspects pertaining to the Bill’s adoption, see http://www.vineyard.org.za/papers/President.pdf (accessed on 23 October 2007). 26 The Recognition of Customary Marriages Act 120 of 1998 defines a ‘customary marriage’ as ‘a marriage concluded in accordance with customary law’. In turn, the Act defines ‘customary law’ as being ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’. 27 Act 120 of 1998, which came into operation on 15 November 2000. 28 See the definition of civil union in section 1 of the Act. Civil partnership is not, however, defined. 29 Available from http://www.pmg.org.za/viewminute.php?id=8509 (accessed on 18 October 2007). 30 Available from http://www.info.gov.za/speeches/2006/06112814151001.htm (accessed on 18 October 2007). 31 Same-sex marriages are, for the most part, subjected to the same requirements as heterosexual marriages, and the (legal) consequences of the recognition of these marriages are, generally speaking, the same as in the case of heterosexual marriages – see section 13 of the Civil Union Act 17 of 2006 and Smith and Grobler (2005) at 745–66 (writing before the Act came into operation). For a brief period of time (between 30 November 2006 and 30 June 2007), a problematic inconsistency was created by the fact that parties to a civil union need to be at least 18 years of age, while in terms of sections 24–26 of the Marriage Act 25 of 1961, parties to a civil marriage had to be at least 21 years of age, unless the prescribed consent to marry had been obtained. This state of affairs was altered by the coming into operation (on 1 July 2007) of certain sections of the Children’s Act 38 of 2005. Section 17 of the latter Act has reduced the age of majority in South Africa from 21 to 18, with the effect that sections 24–26 of the Marriage Act of 1961 will henceforth have to be interpreted in the light of this development. Nevertheless, the requirements for the conclusion of marriages under both the Civil Union Act and the Marriage Act have not yet been reconciled in toto, as the latter Act still provides for persons younger than 18 to conclude a marriage provided that the prescribed consent is obtained. As the Civil Union Act contains no similar provision(s), the inference is therefore justified that the age requirement of 18 is absolute for the purpose of concluding a civil union (but not for concluding a civil marriage in terms of the Marriage Act). In addition, it appears that a number of pertinent issues within the context (inter alia) of property conveyancing still remain unresolved – see http://www.property24.com/Property24/news/ FullArticle.asp?articleid=5072 (accessed on 11 April 2007). These problems mainly present themselves in two forms, namely (i) the rule that the proprietary consequences of marriage are determined by the husband’s domicile at the time of the marriage (see Frankel’s Estate v The Master 1950 (1) SA 220 (A) at 233, and, for an application within the context of same-sex marriage, see Farlam JA’s minority judgment in Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) at para [124]) and (ii) problems occasioned by the fact that uncertainty prevails over the surname(s) to be adopted by same-sex civil union partners. For an elucidation of a number of these (and other) uncertainties, see Smith and Grobler (2005) at 748–58. 32 See Van Schalkwyk (2007) at 168 and 172–3 who is of the opinion (i) that it may be argued that the Act provides for both heterosexual and homosexual civil unions, as the Act does not make 20


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reference to any gender and (ii) that another aspect of uncertainity regarding the Act is whether or not it allows for the conclusion of (in his terminology) ‘“customary” civil unions’ (‘“gebruiklike” burgerlike verbinding’) – Van Schalkwyk is of the opinion that the Act may provide for both ‘Western’ or ‘“civil” civil unions’ (‘“burgerlike” burgerlike verbindings’) as well as ‘“customary” civil unions’ to be concluded. 33 Examples of such (erroneous) interpretations of the Act are referred to in note 101 below. 34 See SALRC (2006) at xi and 3; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at para [36]; Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) at para [22]; and Volks NO v Robinson 2005 (5) BCLR 446 (CC) at para [65]. South African law did therefore not provide any legal recognition to relationships that have from time to time been referred to as ‘concubinage’, ‘domestic partnerships’, or ‘common-law marriages’. Regarding the use of the term common-law marriage, see Hahlo (1985) at 36 who is of the opinion that it is misleading and should not be used in a South African context. Hahlo’s view is shared by the South African Law Reform Commission [see SALRC (2006) at 12]. 35 These are consequences that attach to all marriages by operation of law (ex lege) and thus apply irrespective of the wishes of the spouses involved. Examples of such consequences include the reciprocal duty to maintain one another, the fact that the spouses must live together as husband and wife (expressed as the concept of consortium omnis vitae), and that the parties cannot, as a general rule, be compelled to testify against one another. For a more complete list, see Visser and Potgieter (1998) at 72 et seq; Smith and Grobler (2005) at 750 et seq; and Cronjé and Heaton (2004) at 49 et seq. 36 Customary marriages (see notes 26 and 27 above) have also been recognized in recent times. 37 Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) at paras [22]–[25]; Cronjé and Heaton (2004) at 227; SALRC (2006) at xi; and 127 et seq. 38 See SALRC (2006) at xi. 39 Having said this, in Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T) the Transvaal Provincial Division (per Roux J) found that ‘[p]arties to a same-sex union, which has existed for years in a common home, must surely owe a duty of support, in all senses, to each other’ (at 449 (A)). This finding is, however, of limited effect as (i) it was decided by a single judge and not by a full bench of the High Court and (ii) it is of mere persuasive value to other divisions of the High Court and, moreover, does not bind the higher courts (such as the SCA and the Constitutional Court). 40 For example, see Volks NO v Robinson 2005 (5) BCLR 446 (CC) at para [56] and Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) at paras [24] and [25]. 41 Gory v Kolver NO and Others (Starke and Others intervening) 2007 (3) BCLR 294 (CC) at para [1] and [19]; Cronjé and Heaton (2004): 227; Visser and Potgieter (1998) at 5; and SALRC (2006) at 157. 42 Certain formalities are prescribed before antenuptial contracts are valid and binding as against third parties – see sections 86 and 87 of the Deeds Registries Act 47 of 1937. 43 According to South African law, a rebuttable presumption applies to the effect that all marriages are presumed to be concluded in community of property unless the parties have evinced an intention to the contrary – see Edelstein v Edelstein NO 1952 (3) SA 1 (A) at 10. 44 Cronjé and Heaton (2004) at 227; Visser and Potgieter (1998) at 5; and SALRC (2006) at 159. 45 131 of 1998. 46 Italics added. 47 See SALRC (2006) at 148 et seq and Cronjé and Heaton (2004) at 229–31 for other examples of such legislation. 48 See Van Schalkwyk (2007) at 166, 167, and Cronjé and Heaton (2004) at 229–34 for an exposition of these cases. 49 See Robinson and Another v Volks NO and Others 2004 (6) SA 288 (C) at 294. 50 It may be worth mentioning that it appears as if the distinction between a marriage and a civil partnership is purely semantic as exactly the same legal consequences attach to both – see section 13 of the Civil Union Act. 51 In fact, it is interesting to note that, following its proposal on 7 November 2006 (see the discussion in para 1 A above) to the Home Affairs Portfolio Committee to the effect that the restriction (in terms of the original Bill) of civil unions to homosexuals only should be removed, the DA had already suggested that the words ‘apart from the fact that they are of the same sex’ in clause 8.5 of the original Bill (which in substance corresponds to section 8(6) of the Act in its

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current form) should be deleted – see http://www.pmg.org.za/viewminute.php?id=8488 (accessed on 19 October 2007). This lucid proposal does not appear to have been implemented. 52 This occurred on 27 April 1994 when the Interim Constitution (Act 200 of 1993) came into operation. 53 In Matiso v Commanding Officer, Port Elizabeth Prison 1994 (4) SA 592 (SE) at 597 (F)–(H) Froneman J states that constitutional supremacy implies that ‘… both the purpose and method of statutory interpretation should be different from what it was before 27 April 1994’. This dictum was recently referred to with approval in Kimberley Girls’ High School and Another v Head, Department of Education, Northern Cape Province and Others 2005 (5) SA 251 (NC) at para [20]. In Khan v Khan 2005 (2) SA 272 (T) at para [11] Goodey AJ states that the new constitutional order has also brought about a change to the public policy considerations involved in the interpretation of legislation. Also see Harksen v President of the Republic of South Africa 2000 (2) SA 825 (CC) at para [18] where Goldstone J states that ‘[i]t is unnecessary for legislation expressly to incorporate terms of the Constitution. All legislation must be read subject thereto’. Also see Du Plessis (2001) at 100 and 133–48; Botha (2005) at 3–5 and 114 et seq; Devenish (1992) at 290, 291; (2005) at 203; (2006) at 399, 400; and (2006a) at 243. 54 Matiso v Commanding Officer, Port Elizabeth Prison 1994 (4) SA 592 (SE) at 597 (F)–(H). Also see Robinson (2005) at 489 and 492; Devenish (2006a) at 251. 55 Devenish (2006) at 400 and (2006a) at 240. 56 For example, see National Director of Public Prosecutions v R O Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; National Director of Public Prosecutions v Seevnarayan [2004] 2 All SA 491 at para [6]: ‘[t]he meaning of both phrases must be determined in the light of the overall purpose of the Act’. 57 At 115. 58 Devenish (2006) at 400. Also see Currie and De Waal (2005) at 148 et seq. 59 Botha (2005) at 75–87. See Stopforth v Minister of Justice and Others; Veenendaal v Minister of Justice and Others 2000 (1) SA 113 (SCA) at para [21]; National Director of Public Prosecutions and Another v Mohamed NO and Others 2002 (4) SA 843 (CC) at para [14]. For criticism of some of the proponents of the purposive approach, see De Ville (1999) at 373–89. 60 See African Christian Democratic Party v Electoral Commission and Others 2006 (3) SA 305 (CC) at para [25]; Du Plessis v De Klerk 1996 (3) SA 850 (CC) at para [123] where Kriegler J states that ‘[i] t is also trite that the Constitution is to be interpreted purposively and as a whole, bearing in mind its manifest objectives’. 61 Currie and De Waal (2005) at 147; Devenish (2006a) at 241. 62 Du Plessis (2005) at 599. Also see Devenish (2005) at 204 and Currie and De Waal (2005) at 146. 63 At 599. 64 National Director of Public Prosecutions and Another v Mohamed NO and Others 2002 (4) SA 843 (CC) at para [14]. 65 Section 39(2) states that ‘[w]hen interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’. Devenish (2006) at 400, 401; (2006a) at 240; and (2005) at 203, 204 advocates that a ‘value-based theory’ should be employed as a theory of general application instead of the purposive approach. His opinion is based chiefly (i) on the view that a ‘narrow purposive approach’ might lead to the neglect of values which are essential towards viewing the legal system as a coherent whole and (ii) on the fact that the use of the ‘word “spirit” in conjunction with the words “purport” and “objects”’ necessitates a ‘wider and more comprehensive’ interpretative approach (see (2006) at 400). 66 For example, see Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others; In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) at para [21] where Langa DP (as he then was) stated that ‘… all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the Constitution’. Also see Phumelela Gaming and Leisure Ltd v Gründlingh and Others 2006 (8) BCLR 883 (CC) at paras [26] and [27]. For a criticism of the Constitutional Court’s approach in the latter case, see Rautenbach (2007) at 392, 393, and 401– 4. 67 At 65. 68 Botha (2005) at 78; Du Plessis (2002) at 241 and (2005) at 599; and SALRC (2006a) at 77. 69 Examples of such aids include long titles and statements of purpose. 70 For example, see National Director of Public Prosecutions and Another v Mohamed NO and Others 2002 (4) SA 843 (CC) at para [14]; National Director of Public Prosecutions v R O Cook Properties (Pty)


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Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; National Director of Public Prosecutions v Seevnarayan [2004] 2 All SA 491 (SCA) at para [6]; National Director of Public Prosecutions v Parker 2006 (3) SA 198 (SCA) at para [1] (note 4); Du Plessis (2002) at 239; and SALRC (2006a) at 75. 71 Botha (2005) at 75 is of the opinion that the Court should (according to its discretion regarding relevance and value) make use of the widest possible array of interpretative aids in order to assist in determining the purpose of the legislation. 72 (2006(a)) at 78, 79. 73 [B 26-2006] which was published in August 2006 – see note 10 above. 74 The following extracts (emphasis added) from the preamble to the Bill which was published in August 2006 serve to illustrate this point: ‘[and noting] that the family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex couples’ and ‘[and noting] that there is no legal recognition or protection for samesex and opposite-sex couples in permanent domestic partnerships …’ (italics added). 75 See Kavanagh (1999) at 264. The Collins Concise Dictionary (see Sinclair (2001) at 337) defines ‘couple’ as inter alia ‘two people who regularly associate with each other or live together’. It is interesting to note that the latter dictionary makes no reference to married persons in its definition of couple. It must be remembered that although dictionaries are often used in the process of statutory interpretation, it has been held that their usefulness is limited by the context of the particular legislation in question. See eg (within a constitutional context) Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC) at para [51] where Yacoob J stated that ‘[a] dictionary definition may be a convenient starting point but they are often not very helpful in determining the meaning of a phrase in the setting in which we find it. The context is all important’. In Fundstrust (Pty) Ltd (In Liquidation) v Van Deventer 1997 (1) SA 710 (A) Hefer JA stated that ‘[a]s a rule every word or expression must be given its ordinary meaning and in this regard lexical research is useful and at times indispensable. Occasionally, however, it is not. The present appears to me to be such a case …’ (at 727 (A)). This dictum has been referred to in a number of cases, such as Aktiebolaget Hässle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) at para [9]; Monsanto CO v MDB Animal Health (Pty) Ltd (Formerly MD Biologics CC) 2001 (2) SA 887 (SCA) at para [9]; Bührmann v Nkosi and Another 2000 (1) SA 1145 (T) at 1150 (I)–1151 (A); and Moodley v Scottburgh/ Umzinto North Local Transitional Council and Another 2000 (4) SA 524 (D) at 530 (F)–(I). 76 120 of 1998. 77 See, eg, Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) at para [56] ‘[t]he distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage’ (italics added). 78 See Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC) at para [51]. 79 On the necessity of recognizing and regulating domestic partnerships, see Goldblatt (2003) at 610–29. 80 At 178 (emphasis and italics added). Also see Casserly v Stubbs 1916 TPD 310 at 312 and Botha (2006) at 34–6. 81 1981 (1) SA 150 (A) at 164 (A) (emphasis added). 82 At para [162] of the Fourie case (emphasis added). 83 In terms of section 13 of the Civil Union Act. 84 See para 4 below. 85 Rautenbach and Malherbe (2004) at 44. 86 This section provided that ‘[n]o law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation’. 87 ’No law shall be constitutionally invalid solely by reason of the fact that the wording used is prima facie capable of an interpretation which is inconsistent with a provision of this Constitution, provided such a law is reasonably capable of a more restricted interpretation which is not inconsistent with any such provision, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation’. 88 Act 200 of 1993, which came into operation on 27 April 1994. 89 For example, see Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC) at para [210]; Coetzee v Government of the Republic of

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South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) at paras [62] and [75]; Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) at para [59]; Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) at paras [69] and [76] et seq; S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) at para [26]; S v Coetzee and Others 1997 (3) SA 527 (CC) at para [147]; and Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) at para [31]. 90 Ynuico Limited v Minister of Trade and Industry and Others 1995 (11) BCLR 1453 (T) at 1468 (G)–(J). 91 Per Kriegler J in Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC) at para [21] (note 19). Also see Van der Merwe v Road Accident Fund and Another (Women’s Legal Centre Trust as amicus curiae) 2006 (4) SA 230 (CC) at para [19] (note 19). 92 The ‘reasonably possible’ requirement has, chiefly because of the fact that the 1996 Constitution does not contain a provision similar to section 35(2), been the subject of much controversy. As a result of this omission, the question arises as to whether the legislation in question still needs to be ‘reasonably possible’ of bearing a constitutionally valid interpretation. In De Lange v Smuts NO and Others 1998 (3) SA 785 (CC), it was held that ‘the same interpretative approach should be adopted under the 1996 Constitution’ (at para [85]). Similar sentiments were again expressed by the Constitutional Court in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC). In this case, Ackermann J expressly retained the requirement that reading down could only take place provided that the legislation in question was reasonably possible of being construed in such a way as not to ‘give rise to constitutional inconsistency’ without ‘distorting the meaning of the expression being considered’ (at para [23]). In the learned judge’s opinion, the word ‘spouse’ in section 25(5) of the Alien’s Control Act 96 of 1991 was not capable of being construed in such a way as to include a same-sex life partner. ‘Reading down’ was consequently not possible in this instance. A similar line of reasoning was adopted in a number of subsequent decisions (see eg, Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others; In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) at para [23]; De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening) 2002 (1) SA 429 (CC) at para [24]; Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) at para [40]; Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC) at para [21] (note 30); Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) at paras [40]–[45]; Du Toit v Minister of Transport 2006 (1) SA 297 (CC) at para [29]; Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) at para [26]–[33]; Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) at paras [10] and [11]; South African National Defence Union and Another v Minister of Defence and Others; South African National Defence Union v Minister of Defence and Others 2004 (4) SA 10 (T) at 27 (J)–28 (A); Van Dyk v Maithufi NO en Andere 2004 (1) SA 441 (T) at 447 (D)–(E)). However, Le Roux (2005) at 538–9 is of the opinion that the Constitutional Court appears to have evinced an intention to move away from this strict requirement in Daniels v Campbell NO and Others 2004 (5) SA 331 (CC). The author states that ‘[a]lthough Sachs J carefully introduced this purposive reading of the term “spouse” on the back of the dominant textualist approach … the groundwork had been laid for the development of a distinctly new approach to the interpretation of apartheid legislation’. 93 See eg Devenish (2006a): 248 where he states that the presumption of constitutionality was applied in the past when subordinate legislation was interpreted. 94 In R v Correia 1958 (1) SA 533 (A) at 542 (D)–(E) Steyn JA explained this principle by stating that ‘[o]n the well known principle of construction ut res magis valeat quam pereat, an interpretation rendering the exception ineffective should be avoided if the language so permits’. 95 Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) at footnote 103; Ynuico Limited v Minister of Trade and Industry and Others 1995 (11) BCLR 1453 (T) at 1468 (G)–(J). This principle has been translated by Watson (1985: 13 et seq) as: ‘[w]hen there is an ambiguity in a statute, that sense is to be preferred which avoids an absurdity, especially when by this method the intendment of the [A]ct is also secured’. Currie and De Waal (2005) at 65 mention that, in any event, ‘reading down’ was encapsulated in the forerunner to section 39(2) of the 1996 Constitution, namely section 35(3) of the Interim Constitution of 1993. 96 Rautenbach and Malherbe (2004) at 44.

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At 141. Also see Currie and De Waal (2005) at 65. At 148, quoting S v Makwanyane 1995 (3) SA 391 (CC) at para [9]. Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others; In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) at para [24]; and Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) at para [40]. 100 2002 (4) SA 294 (CC) at para [40]. 101 An example of confusion created is to be found on the South African Department of Home Affairs website (http://home-affairs.pwv.gov.za/media_releases.asp?id=370, accessed on 18 October 2007) where, in a media release entitled ‘Civil Union Act comes into effect’ the statement is made that ‘[t]he Civil Union Act, 2006 … which accords same-sex couples the same rights and status as heterosexual married couples breaks new ground. The Act ensures and respects the equality and dignity of same-sex people in South African society’. Two paragraphs later the statement is made that ‘[t]he signing into law of the Civil Union Act makes the democratic South Africa the fourteenth country in the world and the first in the continent to afford same-sex couples equal protection through legal instruments such as the Civil Union Act’ (italics added). No reference whatsoever is made to the rights of heterosexual couples and the impression is clearly created that the Act only deals with the rights of homosexual couples. Furthermore, the fact that this information is available from the very Department responsible for the legislation only serves to add to the confusion. An example of uncertainty as far as members of the public are concerned can be found at http://http.persfin.co.za/index.php?fSectionId=596&fArticleId=3989225 (accessed on 21 October 2007) where the journalist concerned states that the concept of a civil union is defined as ‘a voluntary partnership of two same-sex persons over 18 that is solemnized and registered by way of marriage or civil union’ (italics added). It is quite possible that this incorrect definition was formulated on the basis of the perceived scope of the Act. A further example is taken from http:// www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20061201035949444C420799 (accessed on 23 October 2007) where it is stated that ‘[t]he new Civil Union Act, 2006, makes provision for same-sex couples to either get married or to enter into a civil partnership’ (italics added). Once again, no reference is made to opposite sex couples. 102 Italics added. 103 See eg, Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC); Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC); and National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC). 104 Fortunately, some of the deficiencies have been rectified by the legislature. For example, Satchwell v President of the RSA 2002 (6) SA 1 (CC) dealt with the Judges’ Remuneration and Conditions of Employment Act 88 of 1989. Sections 8 and 9 of this Act provided that certain allowances also had to inure to the benefit of the ‘surviving spouse’. The Court found that these provisions were indeed unfairly discriminatory in that they afforded benefits to spouses but not to same-sex partners who had established a permanent life relationship similar to a marriage. The Act was replaced by the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 that now provides that a partner may now also be afforded such benefits. ‘Partner’ is defined as ‘only one person with whom a Constitutional Court judge or judge, who is not legally married, is involved in a permanent heterosexual or same-sex life partnership – (a) in which the Constitutional Court judge or judge and the person concerned have undertaken reciprocal duties of support; (b) …’ (emphasis added). Another example is the promulgation of the Medical Schemes Act 131 of 1998 (as amended). Prior to the legislative intervention, in Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T) an application was brought in the Transvaal Provincial Division of the High Court to register a female partner involved in a longstanding lesbian relationship as a dependant of the applicant for purposes of registration in a medical aid scheme run by the South African Police Services. Both ‘member’ and ‘dependant’ were defined in the scheme’s regulations as ‘the legal spouse or widow or widower’. The Fund refused to register the member’s lesbian partner, hence the application. The Court allowed the application on the basis that to its experience and knowledge the stability and permanence of same-sex relationships of which it was aware was no different from that of many married couples that the Judge knew (at 316). The order of the Court stated that the Registrar had to consider the Applicant’s request to register her female partner as her dependant ‘without the complication of a definition of what a dependant is’ (at 317). Any possible differentiation between homo- and heterosexual cohabitants that might have arisen in the wake of the Langemaat decision has been removed by the Medical Schemes Act 131 of 1998 which (inter alia) defines ‘dependant’ as ‘the spouse or partner …’ and also provides that ‘[n]o medical scheme shall be registered under this section unless the Council is satisfied that: … the medical 98 99

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scheme does not or will not unfairly discriminate directly or indirectly against any person on one or more arbitrary grounds including race, age, gender, marital status, ethnic or social origin, sexual orientation, pregnancy, disability and state of health … (section 24(2)(e) of the Act which was inserted by Act 55 of 2001)’. 105 Also see Standard Bank Investment Corp Ltd v Competition Commission; Liberty Life Assoc of Africa Ltd v Competition Commission 2000 (2) SA 797 (SCA) at para [31]; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at para [21]; and Zantsi v Council of State, Ciskei, and Others 1995 (4) SA 615 (CC) at paras [2] - [5]. 106 Such as the Marriage Act 25 of 1961 or the Recognition of Customary Marriages Act 120 of 1998. 107 2003 (2) SA 198 (CC). 108 74 of 1983. 109 Para [32]. 110 Section 13 would obviously not make any difference to the position of heterosexual couples who have not elected to conclude a civil union but who merely cohabitate. 111 74 of 1983. 112 38 of 2005. 113 The Children’s Act 38 of 2005 does not define the concept of a ‘domestic life-partnership’. This fact, coupled with the fact that the Civil Union Act 17 of 2006 contains no reference to this concept as such (but only refers to a civil partnership without defining the same) creates uncertainty as it is unclear whether the concepts ‘domestic life-partnership’ and ‘civil partnership’ are to be equated. In the light of the fact that the Children’s Act had already been assented to by the State President on 8 June 2006, while the Civil Union Act only appeared in its final form in November of that year (see para 1A and as well as note 25 above), the point could surely be raised that the legislature should have employed consistent terminology in this respect. 114 When this will happen is uncertain, but recent newspaper reports have indicated that the remainder of the Act will not come into operation in 2007 – see Du Toit in Volksblad 13 September 2007. 115 2004 (1) SA 359 (SCA). 116 56 of 1996. 117 Para [14]. 118 Paras [17]–[33]. 119 Constitution of the Republic of South Africa, 1996. 120 Para [37]. In Satchwell v President of the RSA 2002 (6) SA 1 (CC) the Constitutional Court held that duty of support applied ex lege to a number of family relationships, such as, eg, husband and wife and parent and child. In addition, ‘[i]n a society where the range of family formations has widened, however, such a duty of support may be inferred as a matter of fact in certain cases of persons involved in permanent, same-sex life partnerships. Whether such a duty of support exists or not will depend on the circumstances of each case’ (per Madala J at para [25]). 121 Paras [38]–[41]. 122 At 232. 123 2005 (5) BCLR 446 (CC). 124 See paras [3]–[5]. 125 Section 2(1), entitled ‘[c]laim for maintenance against estate of deceased spouse’ reads as follows (emphasis added) ‘[i]f a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings’. 126 The Act defines ‘survivor’ as ‘the surviving spouse in a marriage dissolved by death’. 127 27 of 1990. This Act came into operation on 1 July 1990. 128 Paras [39] and [56]. 129 Paras [40]–[45]. 130 Para [53]. 131 Also see para [54] of the Volks judgment where Skweyiya J quotes the following passage from Fraser v Children’s Court, Pretoria North, and Others 1997 (2) SA 261 (CC): ‘[i]n the context of certain laws there would often be some historical and logical justification for discriminating between married and unmarried persons and the protection of the institution of marriage is a legitimate area for the law to concern itself with’. 132 Para [56]. 133 27 of 1990.

BRADLEY S. SMITH AND J. A. ROBINSON 134

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For the sake of interest, the legal position regarding Islamic (purely religious) marriages further illustrates the fragmented landscape alluded to above: Although Islamic marriages that have not been concluded and registered in accordance with South African (civil) marriage legislation are not legally valid marriages (see, eg, Ryland v Edros 1997 (2) SA 690 (C)), in Daniels v Campbell 2004 (7) BCLR 735 (CC) the Constitutional Court found that the surviving spouse of such a marriage was entitled to a maintenance claim from the deceased spouses’ estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. In addition, in Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 the SCA was prepared to recognize the dependant’s action for loss of support on the basis of the contractual obligations arising from an Islamic marriage. 135 The Roman law principle that no person could die partially testate and partially intestate (nemo pro parte testatus pro parte intestatus decedere potest) does not apply in South African law – see Havemann’s Assignee v Havemann’s Executor 1927 AD 473. This principle is confirmed in section 1 of Act 81 of 1987. 136 81 of 1987. 137 2004 (7) BCLR 735 (CC) also see note 133 above. 138 For example, the Domestic Violence Act 116 of 1998, the Criminal Procedure Act 51 of 1977 and tax legislation. 139 Ismail v Ismail 1983 (1) SA 1006 (A). 140 1997 (2) SA 690 (C). 141 81 of 1987. 142 2005 (1) SA 580 (CC). 143 Such a marriage can be termed a ‘customary marriage’ – see section 1 of the Recognition of Customary Marriages Act 120 of 1998. This Act also defines ‘customary law’ as being ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’. 144 81 of 1987. 145 The Recognition of Customary Marriages Act 120 of 1998 defines a ‘customary marriage’ as ‘a marriage concluded in accordance with customary law’. 146 2007 (3) BCLR 294 (CC). 147 See para [66] (italics added). 148 See note 52 above for an explanation of the relevance of this date. 149 Par [66]. 150 81 of 1987. 151 The Burgerlijk Wetboek (which can be translated as the ‘Dutch Civil Code’) was amended by De Wet Openstelling Huwelijk of 21 December 2000, which inserted clause 30(1) into Article 30 – see Waaldijk (2004) at 572. 152 Dutch law only provides for the recognition of civil marriages – see article 30(2) which reads ‘De wet beschouwt het huwelijk alleen in zijn burgerlijke betrekkingen’ (quoted from http://wetten. overheid.nl/ accessed on 11 September 2007). Also see Waaldijk (2000) at 572. 153 One other aspect which might be considered as constituting a ‘difference’ between opposite sex and same-sex marriage is the fact that same-sex marriages concluded in the Netherlands (or, for that matter, in any other country where such marriages are permitted) will not necessarily be recognized by other jurisdictions – see Patterson (2001) at 301 et seq; Netherlands Ministry of Justice (2006) Fact Sheets ‘Same-sex marriage’. 154 In order for adoption to take place, the couple must have lived together for at least three years – see Article 227(2) of the Dutch Civil Code. This requirement applies irrespective of gender – see Waaldijk (2005) at A4. Other conditions pertaining to adoption are contained in Article 228 of the Code. 155 Unmarried couples are also excluded from participating in inter-country adoptions – see Merin (2002) at 127; Waaldijk (2004) at 574, 575 and (2005) at A5; and Patterson (2001) at 301. 156 Article 199a of the Dutch Civil Code. 157 Merin (2002) at 127. 158 SALRC (2006) at 174. 159 Article 253sa of the Dutch Civil Code: ‘Over een staande huwelijk of geregistreerd partnerschap geboren kind oefenen een ouder en zijn echtgenoot of geregistreerde partner die niet de ouder is, gezamenlijk het gezag uit, tenzij het kind tevens in familierechtelijke betrekking staat tot een andere ouder’. This principle also applies in the case of lesbian or heterosexual registered partnerships – see Waaldijk (2005): A1 (obtained from http://www-same-sex.ined.fr/ pdf/DocTrav125/05Doc125TheNetherlands.pdf accessed on 11 September 2007). Also see Merin (2000) at 127 and Waaldijk (2004) at 575, 576.

390 160


Per Waaldijk (2005) at A1 and A3 who also mentions that joint parental authority may be requested in other circumstances. 161 Netherlands Ministry of Justice (2006) Fact Sheets ‘Same-sex marriage’. 162 In 1989, Denmark became the first country to do so. A number of other countries, namely Norway, Sweden, Greenland, and Iceland followed suit, while France did so one year after the Netherlands – see Maxwell (2000) para 2.2.1; Boele-Woelki (2000) at 1053; and Waaldijk (2000) at 80. For a brief synopsis of the Swedish position, see Smith and Grobler (2005) at 759 and 760. 163 See Waaldijk (2004) at 571; SALRC (2006) at 167–9; and Maxwell (2000) at para 2.2.1. 164 SALRC (2006) at 168–9; Maxwell (2000) at para 2.2.1; and Van der Burght (2000) at 82. 165 Act of 5 July 1997 (Staatsblad 1997, nr 660) and Act of 17 December 1997 (Staatsblad 1997, nr 660). 166 Article 80(a) of the Burgerlijk Wetboek, quoted from http://wetten.overheid.nl/ accessed on 11 September 2007. 167 For example, see Van der Burght (2000) at 84 and Waaldijk (2004) at 579. 168 Waaldijk (2005) at 138. 169 See SALRC (2006) at 171 and Maxwell (2000) at para 2.2.1. 170 Waaldijk (2005) at A1 and A3 and Van der Burght (2000) at 84. 171 Legal recognition of informal cohabitation in the public law sphere has been taking place since the 1970s – see Van der Burght (2000) at 80; Waaldijk (2005) at 138; and SALRC (2006) at 167. 172 Waaldijk (2005) at 139. 173 SALRC (2006) at 170–1. For example, cohabitants may not participate in inter-country adoptions, and the presumption of paternity also does not apply. A detailed exposition of other differences falls beyond the scope of this article – for information in this regard, see Netherlands Ministry of Justice (2006) Fact Sheets ‘Same-sex marriage’ and Waaldijk (2005) at 138, 139. 174 These two Acts are the Marriage Act 25 of 1961 and the Recognition of Customary Marriages Act 120 of 1998. 175 Also see Van Schalkwyk (2007) at 168 and 172–3. 176 2007: 168 and 172, 173. 177 This issue falls beyond the scope of this contribution. 178 See the discussion regarding a number of these anomalies in 2A–D above. 179 See Maxwell (2000) at para 2.1 et seq. 180 See SALRC (2006) at 2 et seq. 181 Per Sachs J in para [125] of the Fourie case. Admittedly, Sachs J stated that this description was gleaned from the Commission’s own description of its activities. However, the fact that the learned judge agreed with this description can be inferred from the fact that he did not refute it in the paragraphs that followed. In addition, in para [131] Sachs J confirms the fact that, in his opinion, the South African public had ample opportunity to make submissions to the Commission and thereby to express itself. 182 See the discussion in para 1 A above. 183 See http://www.vineyard.org.za/papers/President.pdf (accessed on 23 October 2007). 184 See http://www.pmg.org.za/viewminute.php?id=8292 (accessed on 19 October 2007) for feedback provided to the Portfolio Committee regarding public participation. 185 See the discussion on the original and subsequent Civil Union Bills in para 1A above. 186 See note 28 above. 187 See para 1 A above. 188 See the summary of the sitting held on 8 November 2006, available at http://www.pmg.org. za/viewminute.php?id=8504 (accessed on 21 October 2007). 189 [B26B-2006] as voted on by the Portfolio Committee on 9 November 2006. 190 For example, in the Fourie case Sachs J stated that: ‘The one unshakeable criterion is that the present exclusion of same-sex couples from enjoying the status and entitlements coupled with the responsibilities that are accorded to heterosexual couples by the common law and the Marriage Act, is constitutionally unsustainable. The defect must be remedied so as to ensure that same-sex couples are not subjected to marginalisation or exclusion by the law, either directly or indirectly’ at para [147] (italics added). For an example of a contrary view of the validity of the Constitutional Court’s mandate to parliament, see http://www.avc.org.za/papers/President.pdf (accessed on 23 October 2007). 191 Portfolio Committee sitting on 8 November 2006 – see http://www.pmg.org.za/viewminute. php?id=8504 (accessed on 21 October 2007).


391

192

See SALRC (2006) at xv. See the Fourie case at para [125] et seq. At 577. 195 Examples of the time constraints faced by the legislature abound. The following examples illustrate this point: 193 194

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In the Home Affairs Portfolio Committee sitting on 13 September 2006, the chief State Law Advisor is reported as having stated that, in as far as the original Bill was concerned, ‘his office’s task had been fraught with difficulties’, as they had ‘only received the final version of the Bill as approved by Cabinet on 28 August’ [see http://www.pmg.org.za/viewminute. php?id=8237 (accessed on 19 October 2007)]; On 8 November 2006, one of the members had remarked that ‘[m]embers had not had an opportunity to study the proposed amendments [ie, the new draft Bill submitted by the ANC that day] prior to the meeting’ and that ‘legislation was being rushed through Parliament that had far reaching implications’ (emphasis added) [see http://www.pmg.org.za/viewminute. php?id=8504 (accessed on 21 October 2007)]; On the same day (ie, 8 November 2006), the Chairperson of the Portfolio Committee is reported as stating that ‘[t]he Committee had only in reality been allocated two months to process the Bill as opposed to the perceived one year. The Constitutional Court had to be notified of the time constraints experienced by Parliament in processing the Bill and addressing the Court ruling’ [see http://www.pmg.org.za/viewminute.php?id=8504 (accessed on 21 October 2007)]; and Once again, on 8 November 2008, Mr F Beukman (ANC) is reported as having ‘acknowledged that in a perfect world with enough allocated time, completely new legislation would have been a sound solution’ [see http://www.pmg.org.za/viewminute.php?id=8504 (accessed on 21 October 2007)]. In consequence of these examples, it could certainly be argued that, as the judicial developments occasioned by Fourie had already made it clear that the eventual recognition of same-sex marriage was inevitable, it might have been better to have allowed the Constitutional Court’s decision to take effect which would have allowed same-sex marriage to take place in terms of the Marriage Act of 1961 (and which, incidentally, would have given effect to the SALRC’s first choice – see SALRC (2006) at xiv and then to have spent more time debating the issue of civil partnerships (for both same- and opposite-sex couples)) in the form of separate legislation. 196

At para [153]. See 1D (i)–(iv) above. 198 2000 (2) SA 1 (CC). In casu, the Constitutional Court ordered that the words ‘or partner, in a permanent same-sex life partnership’ had to be read into the definition of ‘spouse’ in the Alien’s Control Act 96 of 1991. 199 See the discussion in para 1A above. 197

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