Background

South Africa was the first country in the world to safeguard sexual orientation as a human right in its Constitution.^[2] The Constitution of South Africa, which took effect on 4 February 1997, forbids discrimination on the basis of sex, gender or sexual orientation. These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships:

• National Coalition for Gay and Lesbian Equality v Minister of Justice (1998) decriminalised consensual sexual activities between men.
• Langemaat v Minister of Safety and Security (1998) recognised the reciprocal duty of support between same-sex partners, and extended health insurance benefits.
• National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (1999) extended immigration benefits to foreign partners of South African citizens.
• Satchwell v President of the Republic of South Africa (2002) extended remuneration and pension benefits.
• Du Toit v Minister of Welfare and Population Development (2002) allowed same-sex couples to adopt children jointly.
• J v Director General, Department of Home Affairs (2003) allowed both partners to be recorded as the parents of a child conceived through artificial insemination.
• Du Plessis v Road Accident Fund (2003) recognised the claim for loss of support when a same-sex partner is negligently killed.
• Gory v Kolver NO (2006) allowed inheritance of the estate of a partner who died intestate.^[3]

The Fourie case

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Minister of Home Affairs and Another v Fourie and Another

In 2002, a lesbian couple, Marié Fourie and Cecelia Bonthuys, with the support of the Lesbian and Gay Equality Project, launched an application in the Pretoria High Court to have their union recognised and recorded by the Department of Home Affairs as a valid marriage. Judge Pierre Roux dismissed the application on 18 October 2002 on the technical basis that they had not properly attacked the constitutionality of the definition of marriage or the Marriage Act, 1961.^[4][5]

Fourie and Bonthuys requested leave to appeal to the Constitutional Court, but this was denied and the High Court instead granted leave to appeal to the Supreme Court of Appeal (SCA). They applied to the Constitutional Court for direct access, but this was denied on 31 July 2003; the court stated that the case raised complex issues of common and statutory law on which the SCA's views should first be heard.^[6][7]

Fourie and Bonthuys therefore appealed the High Court judgment to the SCA, which handed down its decision on 30 November 2004. The five-judge court ruled unanimously that the common-law definition of marriage was invalid because it unconstitutionally discriminated on the basis of sexual orientation, and that it should be extended to read "Marriage is the union of two persons to the exclusion of all others for life." The court further unanimously noted that because Fourie and Bonthuys had not challenged the Marriage Act, the court could not invalidate it, and, therefore, their marriage could not immediately be solemnized. The court divided, however, on whether the couple should be given an immediate remedy in implementing the new, wider common-law definition of marriage. The majority opinion, written by Judge Edwin Cameron, ruled that the new definition should apply immediately. In a dissenting opinion, Judge Ian Farlam was of the opinion that the court's order declaring the common-law definition invalid should be suspended for two years to allow Parliament to adopt its own remedy for the situation.^[8][9][10]

The Government of South Africa appealed the SCA's ruling to the Constitutional Court, arguing that a major alteration to the institution of marriage was for Parliament and not the courts to decide, while Fourie and Bonthuys cross-appealed, arguing that the Marriage Act should be altered as Judge Farlam had suggested. In the meanwhile, the Lesbian and Gay Equality Project had also launched a separate lawsuit directly attacking the constitutionality of the Marriage Act, which was originally to be heard in the Johannesburg High Court; the Constitutional Court granted the Project's request to have it heard and decided simultaneously with the Fourie case.

On 1 December 2005, the Constitutional Court handed down its decision: the nine justices agreed unanimously that the common-law definition of marriage and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage, were unfairly discriminatory, unjustifiable, and therefore unconstitutional and invalid. In a widely quoted passage from the majority ruling, Justice Albie Sachs wrote:

"The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. 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. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples."

— Paragraph 71 of the judgment

There was some disagreement about the remedy: the majority (eight of the justices) ruled that the declaration of invalidity should be suspended for a year to allow Parliament to correct the situation, as there were different ways in which this could be done, and the Law Reform Commission had already investigated several proposals. If Parliament did not end the inequality by 1 December 2006, then words would automatically be "read in" to the Marriage Act to allow same-sex marriages. Justice Kate O'Regan dissented, arguing that these words should be read in immediately.^[11][12]

Civil Union Act

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Civil Union Act, 2006

On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament. The bill as initially introduced would only have allowed civil partnerships which would have been open only to same-sex couples and have the same legal consequences as marriage. It also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex.^[13] The state law advisers, who screen laws for constitutionality and form, declined to certify the bill, suggesting that it failed to follow the guidelines laid down by the Constitutional Court. The Joint Working Group, a network of LGBT organisations, described the idea of a separate marriage law for same-sex couples as "an apartheid way of thinking".^[14]

On 16 September, thousands of South Africans took to the streets in several cities to protest same-sex marriage.^[15] The minor opposition African Christian Democratic Party (ACDP) pushed for a constitutional amendment to define marriage as between a man and a woman; this was rejected by the National Assembly's Portfolio Committee on Home Affairs.^[16] Public hearings on the bill began on 20 September. On 7 October, the Marriage Alliance organised a march to the Union Buildings in Pretoria to hand a memorandum opposing same-sex marriage to government representatives. On 9 October, the governing African National Congress (ANC) voted to support the bill. Although the party had been split on the issue, the vote meant that ANC MPs would be obliged to support the bill in Parliament. The full party support came after members of the national executive committee reminded party members that the ANC had fought for human rights, which includes gay rights.

It was originally expected that the National Assembly would vote on the bill on 20 October in order to allow enough time for the National Council of Provinces to debate and vote on it ahead of the 1 December deadline. The vote was repeatedly delayed as the Portfolio Committee on Home Affairs was still involved in discussions.^[17] In response to the argument that 'separate but equal' civil partnerships would not comply with the Constitutional Court's ruling, the Portfolio Committee amended the bill to allow either marriages or civil partnerships, and to allow them to both same-sex and opposite-sex couples. The chapter dealing with the recognition of domestic partnerships was removed.

On 13 November, one day before the bill would be read for a final reading in the National Assembly, Defence Minister Mosiuoa Lekota said:^[18]

The roots of this bill lie in many years of struggle... This country cannot afford to be a prison of timeworn prejudices which have no basis in modern society. Let us bequeath to future generations a society which is more democratic and tolerant than the one that was handed down to us.

The amended bill was passed by the National Assembly on 14 November by 229 votes to 41, and by the National Council of Provinces on 28 November by 36 votes to 11.^[19] Deputy President Phumzile Mlambo-Ngcuka, acting for President Thabo Mbeki, signed it into law on 29 November, and it became law the following day, one day before the Constitutional Court's order would otherwise have come into force.^[20] Minister of Home Affairs Nosiviwe Mapisa-Nqakula said the law was only a temporary measure, noting that a fuller marriage law would be formulated to harmonise the several pieces of marriage legislation now in force.^[21][22][23]

The bill was hailed by gay and liberal activists as another step forward out of the country's apartheid past, while at the same time some clergy and traditional leaders described it as "the saddest day in our 12 years of democracy." Islamic leader Sheikh Sharif Ahmed called the bill a "foreign action imposed on Africa".^[26][27]

The first couple to wed, Vernon Gibbs and Tony Halls, did so in George, the following day, 1 December 2006. They encountered no problems, and a second couple married later that day in the same location.^[28] In 2013, South Africa's first traditional same-sex wedding was held for Tshepo Cameron Modisane and Thoba Calvin Sithole in KwaDukuza, KwaZulu-Natal.^[29]

In October 2020, the Department of Home Affairs confirmed that it plans to introduce a new draft marriage policy in South Africa, reconciling the diverse marriage laws into a single piece of legislation "that will enable South Africans of different sexual orientation, religious and cultural persuasions to conclude legal marriages", but indicated that the process had been delayed due to the COVID-19 pandemic.^[30] In January 2021, the South African Law Reform Commission issued a 300-page discussion paper, offering a number of proposals and alternatives. The commission has called for public comments on its discussion paper.^[31] The proposed changes include reforms introducing a default property system, as spouses who have not entered into a formal marriage have no statutory rights to share in property which was amassed during the relationship,^[32] as well as the legalisation of polyandry.^[33] A draft bill was approved by the Cabinet, and published in the Government Gazette on 7 July 2023. The period for written submission was open until 31 August 2023.^[34]

Restrictions

The parties to a marriage or civil partnership must be 18 or older and not already married or civilly partnered. The prohibited degrees of affinity and consanguinuity that apply under the Marriage Act also apply under the Civil Union Act;^[35] thus a person may not marry his or her direct ancestor or descendant, sibling, uncle or aunt, niece or nephew, or the ancestor or descendant of an ex-spouse.^[36]

The Recognition of Customary Marriages Act, 1998 allows, in limited circumstances, a man to marry multiple wives. A person married under the Civil Union Act may not enter into marriage with a second partner until the existing marriage is dissolved.

Solemnisation

A same-sex marriage in Langebaan, 2007

Marriages and civil partnerships must be solemnised by an authorised marriage officer. Government officials (primarily magistrates and Home Affairs civil servants) who are appointed as marriage officers under the Marriage Act are also able to solemnise marriages in terms of the Civil Union Act. Religious leaders may also be appointed as marriage officers under the Civil Union Act, but religious leaders appointed under the Marriage Act are not automatically able to solemnise marriages in terms of the Civil Union Act.

Originally, government marriage officers who had an objection of conscience to solemnising same-sex marriages or civil partnerships were exempted from doing so if they noted their objection in writing to the Minister of Home Affairs. This provision did not apply to religious marriage officers because they are in any case not obliged to solemnise a marriage that would violate the doctrines of their religion. Several constitutional scholars argued that this provision was unconstitutional, calling it "state-sanctioned discrimination" in violation of the right to equality.^[37][38] In July 2017, more than a decade after same-sex marriage was legalised in South Africa, LGBT newspaper Mambaonline reported that 421 (out of 1,130) marriage officers in South Africa were exempt from performing same-sex marriages or civil partnerships,^[39] mostly in the Eastern Cape, the Free State and Mpumalanga. A bill to repeal the exemption was introduced by MP Deidre Carter in January 2018. The bill was amended in Parliament to allow officials who previously did not marry same-sex couples to continue doing so for two years. This gave the Ministry of Home Affairs time to implement the new policy. New officials, however, cannot opt out at all for any time. If a branch had an official opting out for the two-year period, they had to have another official available who could perform the marriage. The measure passed the National Assembly on 6 December 2018 and the National Council of Provinces on 1 July 2020. It was signed into law by President Cyril Ramaphosa on 22 October 2020 as the Civil Union Amendment Act, 2020.

Discrimination

Discrimination against same-sex couples is prohibited (as is all discrimination on the basis of sexual orientation) by section 9 of the Constitution and by the Promotion of Equality and Prevention of Unfair Discrimination Act.

Recognition of foreign unions

The Civil Union Act makes no explicit provisions for the recognition of foreign same-sex unions. As a consequence of the extension of the common-law definition of marriage, and based on the principle of lex loci celebrationis, a foreign same-sex marriage is recognised as a marriage in South African law. However, the status of foreign forms of partnership other than marriage, such as civil unions or domestic partnerships, is not clear. In a 2010 divorce case, the Western Cape High Court recognised the validity of a British civil partnership as equivalent to a marriage or civil partnership in South African law.^[40]

Criticism of the focus on same-sex marriage

Constitutional scholar Pierre de Vos has questioned the notion that the legalisation of same-sex marriage in South Africa represents the pinnacle of the human rights struggle of members of the LGBT community. He argues that those who are not involved in long-term monogamous relationships and those who cannot come out of the closet and get married because of the threat of victimisation may not see any benefit from the legislation.^[41]