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

[52] The Court said that in giving effect to section 28(1)(b) of the Constitution which
guarantees a child a right to a family or parental care, it is important to recognise
that family life can be provided in different ways. Legal conceptions of the family
and what constitutes a family should change as social practices and traditions
change. Excluding from eligibility as adoptive parents same-sex life partners
who are otherwise capable to provide stability, commitment, affection and
support to an adopted child defeats the manifests object of section 28(2) of the
Constitution which provides that ‘a child’s best interests are of paramount
importance in every matter concerning the child. Moreover, such exclusion
constitutes unfair discrimination contrary to section 9(3) of the Constitution.
Equally, the exclusion constitutes a breach of the right to human dignity contrary
to section 10 of the Constitution.
[53] In Satchwell v President of the Republic of South Africa and Another, 257 an
employment term or condition that confined a third party benefit to the ‘spouse’
of an employee and implicitly excluded her lesbian partner was challenged
before the Constitutional Court. The applicant, a woman and a judge by
profession, had a permanent same-sex relationship. She lived with her partner in
the same way that married couples do. The partners acknowledged mutual
obligations of support. The applicant’s conditions of service were governed, inter
alia, by the Judges Remuneration and Conditions of Employment Act of 1989 258
and Regulations 259 pursuant to the Act. She brought an action challenging the
constitutional validity of sections 8 and 9 of the Act and Regulations 9(2)(b) and
9(3)(a) of the Regulations.
[54] Section 8 of the Judges Remuneration and Conditions of Employment Act and
the pursuant regulations provided for the payment to the ‘surviving spouse’ of a
deceased judge two-thirds of the salary that would have been payable to the
judge until the death of the surviving spouse. Section 9 of the Act and the
pursuant regulations provided for the payment of a gratuity to the surviving
spouse of a deceased judge. The applicant’s argument was that excluding a
same-sex partner from the benefit constituted unfair discrimination under
section 9 of the Constitution.
[55] The Constitutional Court unanimously held that exclusion of permanent samesex
partners constituted a breach of the right to equality under the Constitution.
The discrimination was unfair and could not be justified under section 36 of the
Constitution. The omission in the Act and Regulations would be remedied by
257 Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1.
258 Act No 88.
259 Regulations in respect of Judges, Administrative Recesses, Leave, Transport and Allowance in respect
of Transport, Travelling and Subsistence (GNR939, 6 June 1995).
89