Constitutional Court declares Aliens Control Act unconstitutional and says Home Affairs must pay all court costs. Mazibuko Jara issues a statement on today's proceedings

esbian and gay people and their immigrant partners should be free to live together as family, the South African Constitutional Court ruled. The Court today found that the aliens Control Act unfairly discriminates against lesbian and gay couples by denying them the same rights that married couples have under the Act. Until now, the Act has only allowed married partners of South African citizens to live and work in the country.

The case follows a drawn out dispute between the Coalition and the Department of Home Affairs about the status of same sex couples. In August 1999, six couples, the Coalition and the Commission on Gender Equality asked the Court to extend immigration rights to lesbian and gay couples, to bring the existing law in line with the new Constitution.

Justice Ackermann on behalf of the Court stated that "The sting of past and continuing discrimination is that … gays and lesbians do not have inherent dignity and are not worthy of human respect… Gays and lesbians in same-sex life partnerships are as capable as heterosexual couples of expressing and sharing love in its manifold forms… they are capable of constituting a family including affection… Permanent safe-sex life partners are entitled to an effective remedy for the breach of their rights... Section 25 (5) of the Aliens Control Act, by omitting to confer on persons, who are partners in permanent same-sex life partnerships, the benefits it extends to spouses, unfairly discriminates, on the grounds of their sexual rientation and marital status, against partners in such same-sex partnerships."

"The Department of Home Affairs has persistently acted in a cruel and unjustifiable manner against lesbian and gay people. The sad history of this case is that lesbian and gay couples have been harassed, detained and threatened with deportation for the past two years. This is typical of the high-handed and bureaucratic bullying of all immigrants and refugees. This decision is the first step in holding the department accountable to allpeople for its actions.", said Zackie Achmat, of the NCGLE.

Evert Knoesen, legal advice centre co-ordinator of the NCGLE commented that "This decision recognises and protects our families and relationships. Any lesbian and gay South African with a foreign partner can now go to any Home Affairs office on their own and apply for permanent resident status for their partner. This is important and will have significant impact on the lives of many lesbian and gay people. The judgement sends a clear message that we all have the right to choose our families and relationships while enjoying equal protection by the law. Also, by awarding costs against the Department of Home Affairs, this judgement shows that the courts will not tolerate the state abusing the legal system in delaying justice."

For more information contact Evert Knoesen or Mazibuko Jarra

an Electronic Mail & Guardian publication

home  |   news  |   jumpstart  |   archives  |   madam & eve
za@play  |   movies  |   theatre  |   fine art  |   books

© q online - January 03, 2000