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

analogous if is it ‘based on attributes or characteristics which have the potential
to impair the fundamental dignity of persons as human beings, or to affect them
seriously in a comparably serious manner’. 252
[49] As a consequence of not developing comprehensive equality legislation, on the
whole, African jurisdictions do not have parliamentary legislation that protects
the right to equality and non-discrimination on the ground on marital status.
South Africa is, however, an exception to the rule. Section 6(1) of the
Employment Equity Act of 1998 list marital status as a ground protected against
unfair discrimination. Likewise, marital status is a listed ground under the
Equality Act. 253
[50] Save for South African decisions, the African region does not command
standard-setting decisions on marital status. The following paragraphs will
summarize some leading cases on marital status that have been decided by the
South African Constitutional Court.
[51] In Du Toit and Another v Minister of Welfare and Population Development and Others
(Lesbian and Gay Equality Project as Amicus Curiae 254 The applicants who were
female partners in a same sex relationship wanted to adopt two children.
However, they were precluded from doing so by the combined effect of sections
17(a), 17(c and 20(1) of the Child Care Act of 1983 255 and section 1(2) the
Guardianship Act of 1993 256 which provide for joint adoption and guardianship
of children by married persons only. The reference to married persons in the Acts
referred only to marriages recognised by the prevailing common law and
legislation between heterosexual partners. The applicants challenged the
provisions on the ground they breach the constitutional rights to equality and
human dignity. Implicit in their challenge was that the legislation in question,
unfairly discriminated on the grounds of marital status. The Constitutional Court
unanimously held that the provisions of the Child Care Act and the
Guardianship Act were in conflict with the Constitution. The provisions
constituted a breach of both the right to equality and the right to human dignity.
252 Harksen v Lane 1997 (11) BCLR 1489, para 46 (Constitutional Court of South Africa). The test developed
from Harksen v Lane has been applied in a number of cases. For example, in Larbi-Odam v MEC for
Education (North-West Province) 1998 (1) SA 745 (Constitutional Court of South Africa), the test was
applied to find that citizenship which is not a listed ground under section 9(3) of the Constitution, is,
nonetheless, a listed. In Hoffman v South African Airways 2001 (1) SA 1 (Constitutional Court of South
Africa), it was held that HIV status was an analogous ground. The Hoffman case is discussed later in this
chapter.
253 Section 1(xxii) of the Promotion of Equality and Prevention of Unfair Discrimination Act.
254 2003 (2) SA 198 (Constitutional Court of South Africa).
255 Act No 74.
256 Act No 192.
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