1 December 2006
South Africa has become the fifth country in the world, and the first in Africa, to allow legal marriages between same-sex couples, after a historic vote in Parliament on 14 November, followed by the signature of Acting President Phumzile Mlamblo-Ngcuka on 30 December, passed the Civil Union Bill into law.
Parliament and the Presidency have therefore met the 1 December 2006 deadline set by the Constitutional Court in 2005 for the country’s Marriage Act to be amended, or for new legislation to be passed to allow gays and lesbians to enter into legal marriages.
Following an application by Marie Fourie and Cecelia Bonthuys to be allowed to marry, the court ruled that the existing legal definition of marriage was in conflict with the country’s Constitution because it denied gays and lesbians the rights granted to heterosexuals.
Section 9 (3) of South Africa’s Constitution expressly prohibits unfair discrimination on the grounds of sexual orientation.
It reads: “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.”
The court gave Parliament a year to remedy the situation.
On 14 November Parliament passed the Civil Union Bill into law by a vote of 230 to 41. The ruling African National Congress ordered a three-line whip, the strictest disciplinary command the party can give its MPs, to compel them to be both present in the chamber and to vote in favour of the party line supporting the Bill.
Parties opposed to the new law included the African Christian Democratic Party and the Freedom Front Plus, while the Democratic Alliance allowed its MPs to vote according to conscience. The Independent Democrats opposed the Bill on the basis that a “separate but equal” marriage law for gays and lesbians remained discriminatory.
While it is still impossible for same-sex couples to marry under the existing Marriage Act, any South African citizen will be allowed to marry under the new law – including gays and lesbians. Whether heterosexual or homosexual, they will have the option of calling their partnership either a civil union or a marriage.
Among other benefits, the new law will allow married same-sex couples to make decisions on each other’s behalf and inherit if a partner dies without a will.
‘Backward, timeworn prejudices’
Before the vote, Defence Minister Mosiuoa Lekota urged Parliament to support the rights of gays and lesbians, and to allow them to enjoy the fruits of democracy.
“We are bound to fulfil the promises of democracy which we made to the people of our country,” he said. “Are we going to suppress this so-called minority, or are we going to let these people enjoy the privilege of choosing who will be their life partners?
“I take this opportunity to remind the House that in the long and arduous struggle for democracy very many men and women of homosexual or lesbian orientation joined the ranks of the liberation and democratic forces.
“How then can we live with the reality that we should enjoy rights that together we fought for side by side, and deny them that?
“Today, as we reap the fruits of democracy, it is only right that they must be afforded similar space in the sunshine of our democracy . This country cannot afford to continue to be a prisoner of the backward, timeworn prejudices that have no basis.”
With the new law, South Africa joins the elite group of progressive democracies that have legalised same-sex marriage in the last five years: the Netherlands, which passed the law in 2001, Belgium (2003), Canada (2005) and Spain (2005).
A number of other European Union countries – Britain being the latest – have passed laws allowing for various forms of civil partnership between same-sex couples. But while these allow same-sex couples to register their partnerships and receive some of the benefits accorded married couples, they fall short of full marriage equality.
In the Constitutional Court’s December 2005 ruling, Judge Albie Sachs highlighted the deep injustice of denying gays and lesbians the right to formalise their unions.
“Finding themselves strongly attracted to each other, two people went out regularly and eventually decided to set up home together,” he said in the introduction to his judgment.
“After being acknowledged by their friends as a couple for more than a decade, they decided that the time had come to get public recognition and registration of their relationship.
“Like many persons in their situation, they wanted to get married. There was one impediment. They are both women.”
Sachs said there was an imperative constitutional need to acknowledge the long history of the marginalisation and persecution of gays and lesbians in South Africa.
“Although a number of breakthroughs have been made, there is no comprehensive legal regulation of the family law rights of gays and lesbians.”
The exclusion of same-sex couples from the benefits and responsibilities of marriage is not a “small inconvenience”, he said.
“It represents a harsh, if oblique, statement by the law that same-sex couples are outsiders and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.”
He said marriage was the only source of such socioeconomic benefits as the right to inheritance, medical insurance coverage, adoption, access to wrongful death claims, bereavement leave, tax advantages and post-divorce rights.
Sachs said the intangible damage to same-sex couples was as severe as the material deprivation.
“To begin with, they are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law.
“They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture.”
‘Blissful union and sad cessation’
Equally important, Sachs said, was the right of same-sex couples to fall back on state regulation when things went wrong in their relationship.
“The law of marriage is invoked both at moments of blissful creation and at times of sad cessation,” he said.
“There is nothing to suggest that same-sex couples are any less affected than are heterosexual ones by the emotional and material consequences of a rupture of their union. The need for comprehensive judicial regulation of their separation or divorce, or of devolution of property, or rights to maintenance or continuation of tenancy after death, is no different.”
Sachs said that slavery had lasted for a century and a half in South Africa, colonialism for twice as long, the prohibition of interracial marriages for even longer, and overt male domination for millennia.
“All were based on apparently self-evident biological and social facts; all were sanctioned by religion and imposed by law.”
Series of court battles
The new law comes after a series of court battles on gay rights after the new Constitution outlawed discrimination on the basis of sexual orientation.
In 1998 the Constitutional Court struck down the offence of sodomy in the Sexual Offences Act and the Criminal Procedure Act.
The following year, the court allowed foreign partners of homosexual citizens to become permanent residents.
In 2002, the Constitutional Court ruled that homosexual partners in a committed relationship should have the same financial status as married heterosexual couples.
This followed Judge Kathy Satchwell’s application in the Pretoria High Court for her same-sex partner to receive the same financial benefits as if she were a partner in a heterosexual relationship.
During the same year, the court also ruled that same-sex couples had the right to adopt children. In 2003, the court ruled that children born to same-sex couples by artificial insemination were legitimate.