ConCourt rules in favour of gays
Johannesburg - The Constitutional Court on Thursday confirmed the Pretoria High Court's ruling that same-sex couples should have the right to the same financial benefits as married couples.
In a unanimous judgment, judges Tole Madala, Johan Kriegler and
Kate O'Regan agreed that sections 8 and 9 of the Judges
Remuneration and Conditions of Services Act and corresponding
regulations were unconstitutional to the extent that they afforded benefits to the spouses of judges but not to their same-sex life partners.
Handing down the judgment, Madala said Johannesburg judge Kathy
Satchwell and her same-sex partner had been involved in an
intimate, committed, exclusive and permanent relationship since
The matter came before the court after the State appealed a
ruling by the Pretoria High Court that sections of the Judges'
Remuneration and Conditions of Service Act of 1989, and regulations regarding transport, travelling and subsistence, were
unconstitutional because they discriminated unfairly against
"Although they live in every respect as a married couple and are
acknowledged as such by their families and friends, they are not
legally spouses and don't enjoy the benefits accorded to
heterosexual married judges," Madala said.
"The high court order of unconstitutionality was based on
section 9(3) of the Constitution which prohibits unfair
discrimination on the grounds of sexual orientation and marital
"In the Constitutional Court, government accepted that same-sex
partners are entitled to have relationships compatible with their sexual orientation, and added that the restrictive legal meaning of the word spouse not only offends against same-sex partners but also against heterosexual partners in permanent
Madala said marriage entailed reciprocal duties of support
Therefore the court qualified its order that benefits should be
afforded to same-sex partners of judges only where it could be
shown that they had undertaken such reciprocal duties towards one
"Subject to this qualification, the Constitutional Court finds
that the provisions in question unfairly and unjustifiably
discriminate on the basis of sexual orientation," Madala ruled.
He also ordered the government to pay the costs of the case.
Speaking to Sapa at the court immediately after the ruling,
Lesbian and Gay Equality Project director, Evert Knoesen, said the judgment confirmed the constitutional right of people in same-sex relationships to have their relationships recognised and protected by the law and to enjoy the same benefits as married couples.
"We believe that this is yet another step toward the formal
legal recognition of same-sex relationships."
He added that setting a new standard for the evaluation of
lasting relationships indicated the court's continued drive to
align same-sex relationships with marriage in the continued absence of formal, legislative recognition.
Knoesen said recognition of same-sex marriages could come soon
with a same-sex couple due to apply to the Pretoria High Court on
August 2 to demand that right.