ConCourt rules in favour of gays

2002-07-25 16:12

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 about 1986.

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 same-sex couples.

"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 status.

"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 life-lasting relationships."

Madala said marriage entailed reciprocal duties of support between spouses.

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 another.

"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.