Court victory for lesbian judges

2001-09-28 16:07

Pretoria - The Pretoria High Court on Friday ruled in favour of two lesbian judges who sought to amend legislation pertaining to the joint adoption of children and access for same-sex life partners to the benefits afforded to married judges' spouses.

Judge Frans Kgomo ruled in favour of Johannesburg High Court Judge Cathy Satchwell who sought to have sections of the Judges Remuneration and Conditions of Employment Act and regulations in respect of transport, travelling and subsistence declared unconstitutional.

It means that Satchwell's partner of the past 14 years, Lesley Carnelly, will now be entitled to two-thirds of Satchwell's salary if the judge dies and can become a dependant under the Parliamentary and Provincial Medical Aid Scheme. Carnelly will also be able to claim for a subsistence allowance when she accompanies Satchwell on official duties.

Kgomo also granted an application by Pretoria High Court Judge Anna-Marie de Vos and her life partner Suzanne du Toit, declaring sections of the Child Care Act and Guardianship Act, which prevent them from jointly adopting their two children, invalid and unconstitutional.

Ruling welcomed

The judge ordered that the legislation and regulations in both cases should be amended to include same-sex life partners. His rulings in both cases await ratification by the Constitutional Court.

The Gay and Lesbian Equality Project has welcomed the ruling. Spokesperson Carrie Shelver told News24 on Friday that the move was an "important step" ensuring "full legal equality" of homosexuals's rights.

She also said the ruling recognised that homosexual couples needed to have equal recognition of the law when it comes to adoption.

Kgomo referred to a remark by the female head of a village against whose women certain customary laws discriminated against. She had "armed herself with the constitutional axe to chop down the obnoxious discriminatory tree or trim the offending branches to size". Kgomo said that it was precisely what de Vos and her partner intended doing.

Embarrassment, humiliation and confusion

The adoption of a boy and a girl was finalised in 1995, with De Vos as the sole adoptive parent, although she and du Toit wished to be the children's joint adoptive parents.

They argued that it was in the best interests of the children that their experience of family life was reflected in the law. Du Toit said it was a source of embarrassment and humiliation and a cause of some confusion to the children that only De Vos could sign their documents and school reports. Should circumstances change, her access to the children could in later years also severely be limited.

Kgomo said there was no evidence before him that same-sex life partners were less capable of jointly adopting children or in particular that De Vos and Du Toit were not worthy candidates. The evidence pointed to their eminent suitability.

The overwhelming indications were that under the joint parenthood of both partners the children had developed well, were happy and well adjusted.

Kgomo said he did not have the slightest reservation that if the Satchwell-couple were permitted to marry, they would probably have done so more than a decade ago.

'Unfair discrimination'

He reacted sharply to claims by the Minister of Justice Penuell Maduna, who opposed the application, that the discrimination against Satchwell was not unfair and was based on marital status and not sexual orientation.

"I have great difficulty in upholding the respondents' (minister's) argument that the discrimination against Satchwell and other same-sex life partners serves a legitimate government purpose.

"That purpose, in terms of the submission, is the provision of a financial inducement to top counsel to abandon their lucrative private legal practices in favour of financial sacrifices that judicial appointment entails.

"The fallacy of this argument lies therein that by implication there are no top gay men or lesbian counsel but if there are, because of their marital status and sexual orientation, they are not worthy of being accorded the benefits provided by the Judges' Remuneration Act and the attendant regulations to married couples.

"This discrimination is unwarranted, dehumanising, stereotypical, unjustified and consequently unfair," Kgomo said.

He also quoted from a Constitutional Court ruling in a case about the criminalisation of sodomy, in which the court found that the legislation served to perpetuate and reinforce existing prejudices and stereotypes and that the impact constituted a blunt, cruel and serious invasion of their dignity.

He was satisfied that the discrimination against Satchwell did not serve a legitimate purpose, was not justifiable and that its impact amounted to nothing short of the adumbration described in the Constitutional Court ruling.

Fear of floodgates

Argument that the case could open the floodgates for similar claims from people employed by government, Kgomo said no evidence had been placed before him about the percentage of judges in same-sex life relationships. In any event it was irrelevant and immaterial.

He stressed that an entreaty by the respondents that they be afforded an opportunity to remove the discriminatory provisions was "noble and sensible". It had not detracted from the fact that the Justice Department opposed Satchwell's application on the basis that she was not being discriminated against.

He concluded that the Ministry of Justice had been dilatory in concluding the matter. It had sent mixed messages to Satchwell, who had been writing to them since 1997. Four years later the Amendment Bill was still in its infancy. Any further delay may prejudice Satchwell and her partner irreparably in the event of something unforeseen happening to Satchwell, Kgomo said. - News24 and Sapa