sexual health and human rights in the african region - The ICHRP

therefore, invalid under the Constitution. The applicants in the Equality Project
case brought an application seeking a declaration that the common law
definition of marriage and the wording of section 30(1) of the Marriage Act were
unconstitutional and that the formulation of both laws had to be amended to
incorporate couples in same-sex relationships. The applicants relied on the
constitutional rights to equality, human dignity and privacy.
[41] The Constitutional Court unanimously held that the common law definition of
marriage and the section 30(1) were unconstitutional. They were contrary to the
constitutional rights to equality and human dignity as they made no provision
for couples in same-sex relationships to partake of the status, entitlements, and
responsibilities accorded by the law to heterosexual couples.
[42] In the Fourie case, the Court made an order declaring the common law definition
of marriage to be invalid but suspended the declaration for twelve months to
allow Parliament to correct common law. In the Equality Project case, the Court
made a similar order as in the Fourie case as well as an order declaring section
30(1) of the Marriage Act of 1961 invalid and suspended the order for twelve
months to allow Parliament time to remedy the omission in the Act.
[43] The decision of the Constitutional Court in the two cases represents a consistent
application of the Courts approach to interpreting and applying section 9 of the
Constitution as meaning substantive equality. The decision is in line with the
equality jurisprudence of the Court as laid down in National Coalition for Gay and
Lesbian Equality and Others v Minister of Justice and Others 520 other leading cases on
equality. Substantive equality is a form of equality that focuses on lived out
experience and not abstract categories. It puts a premium on human dignity,
building an inclusive society, respecting difference, and putting an end to the
social experiences of castelike existence. Substantive equality does not
countenance social and religious views against gays and lesbians as a
justification for discrimination. In an open and democratic society, as
contemplated by the Constitution, there has to be a mutually respectful coexistence
between the secular and the sacred. According to the Court, the
exclusion of same-sex couples from the benefits and responsibilities of marriage
was not a small and tangential inconvenience but had harsh consequences. It
signifies that the capacity of same-sex couples for love, commitment and
accepting responsibilities was inherently less worthy of regard than that of
heterosexual couples and results in severe material deprivation for gay and
lesbian couples.
520 National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others 1999 (1) SA 6
(Constitutional Court of South Africa).
151