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Same Sex Marriages in South Africa

- Featured article by PRESHNEE GOVENDER GEORGE ATTORNEYS

Same Sex Marriages in South Africa

The issue of same sex marriages is normally discussed in the same way, politics and religion are: argued by politicians, public figures, and intellectuals who simply ignore factual issues that do not enhance their view. They do this so that they are able to stand on their soap box; spouting their beliefs without feeling they are being hypocritical. We come from a nation that was once fractured by discrimination, yet we are so conditioned into believing that discrimination only comes in black and white. We have moved away from the “token black guy” to prove our commitment to the “rainbow Nation”, instead now claiming, “I’m not homophobic, some of my best friends are gay”. Once you feel the need to de fine who you choose to associate with we begin a journey down a dangerous path.

Equality

Section 9 of the constitution states that :

  1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
  2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.
  3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
  4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
  5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

The right to equality is part of the bill of rights, the corner stone of our constitution. We claim to be a nation striving for change, yet for years we denied fundamental rights to people by not affording them the opportunity to choose their own sexual orientation. South Africans are all too quick to blame current problems on the past discrimination and segregation, yet fail to recognise when we are perpetuating the intolerances from the old regime towards the current generation for their views, beliefs and lifestyle choices.

Many South African are afraid of what they may experience, should they “come out”. “Gay bashing” was a legitimate concern of many who would choose to be open about their lifestyle, but for some, this fear was dwarfed by the sense of injustice that they or a loved one experienced at the hands of unfair discrimination.

In February 2008 Jolande Langemaat took on the Minister of Safety and Security and fought for the right to place her partner on her medical aid scheme. In 2002 Suzanne du Toit and Anna - Marié de Vos sought confirmation from the Constitutiona l Court of the invalidity of Sections 17(a), 17(c) and 20(1) of the Child Care Act 74 of 1983 and Section 1(2) of the Guardianship Act 192 of 1993 so that all same sex couples could adopt if they met the standard criteria. Soon thereafter the SCA highlight ed the fact that there was a growing trend to confer greater rights to couples within a same sex marriage, and held that the surviving same sex partner be allowed to claim loss of support from the Road Accident fund.

The Fourie Case

Marié Fourie and Cecelia Bonthuys had been partners since 1994, but due to legislation at the time, where unable to marry. In 2002, the couple decided to apply to the Pretoria High court for their union to be recognized as a marriage in the ordinary sense of the word. Their application was dismissed and their leave to appeal to the constitutional court refused, however they were given leave to appeal to the supreme court of appeal. The court unanimously found the common law definition of marriage to be invalid due to it discriminating on the basis of sexual orientation. This was decision was appealed by the State, as well as by Fourie and Bonthuys, with the Lesbian and Gay Equality project (whom also launched an application challenging the constitutionality of the marriage act) being allowed to have their case heard and decided simultaneously. On the 1 December 2005, the constitutional court ruled that the marriage act was unfairly discriminatory and therefore unconstitutional. The majority agreed that the State would be given 1 year to remedy this, with Justice Kate O’Reegan dissenting saying that the change should be made immediate.

The Civil Union Act

Acting on instructions from the judiciary, the State began working on the Civil Union Bill. It was initially intend to recognise civil partnerships between same sex individuals, and included provisions relating to domestic partnerships (heterosexual and homosexual in nature). It was later amended to allow for marriages and civil partnerships of homosexuals, and the provisions relating to unregistered domestic partnerships removed. It was signed in on the 29 th November 2006, and came into force the next day. This step caused widespread debate among the nation, with many religious groups and leaders’ actively voicing their outrage. It was quite enlightening to see the voices that should be advocating tolerance and unity, being the quickest to show their inability to accept one’s fellow man. The first gay couple to wed was Vernon Gibbs and Tony Halls, with the 1st traditional gay marriage held this year in KwaDukuza in KwaZulu-Natal.

My thoughts were not meant as an attack on the South African populace, but rather an attempt to highlight each individual’s right to choice. South Africa is regarded as one of the only “gay friendly” countries in Africa, with homosexuality being illegal in Botswana, Nigeria, Egypt, Mauritius and Mozambique with the offence being punishable by death in Sudan, Somalia and Mauritania. South Africa currently have one of the most progressive constitutions’ in the world where rights are limited only by the how we choose to exercise them in society. However, as is human nature, when something differs from the norm it is immediately branded as being wrong, or in this case immoral. Our rights are entrenched in the constitution due to the sacrifice of many activists during the apartheid regime, should such sacrifice still be necessary for equality in South Africa’s democratic society?

Legal information

Ashton Bradley Naidoo - Attorney

Same Sex Marriages in South Africa

 

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