- South Africa's Department of Home Affairs needed three weeks to contemplate on the road ahead after the Supreme Court of Appeal ruled that marriages should be legalised. Today, the Ministry announced it was to appeal the decision to the Constitutional Court to gain "time and space" for possible law reforms.
South Africa's Supreme Court of Appeal on 30 November had announced a landmark judgement, saying that the Marriage Act was unconstitutional due to its discrimination of same sex couples. South African lawmakers were urged to reform this legislation to allow for marriages of gay and lesbian couples.
Today, the South African Department of Home Affairs announced its official reaction to the ruling. The Ministry emphasised "the sensitive nature of this issue" and that also homosexuals were entitled to respect, equality and dignity in accordance to the constitution.
Same sex marriages, however, at this stage were seen as premature, in particular as an official Law Reform Commission was looking at "the various types of relationships of a permanent nature, including same sex marriages." It was now "critical to afford the Law Commission space and time to complete its report and for Parliament to consider and pass appropriate legislation," the Ministry said in a statement released today.
The Ministry concludes: "For this reason, the Department of Home Affairs feels that it is necessary to ask the Constitutional Court to pronounce on the matter, so that there is finality, and consequently clear guidelines set for both the Law Commission and parliament in completing its work."
While the government wants the legislative reform process to be concluded, least month's ruling nevertheless has forced it to fight same sex marriages in court. The case of South Africa's homosexual community is strong, given the constitutional provision against discrimination based on sexual orientation.
If the Constitutional Court upholds the judgement of the Supreme Court of Appeal, South African lawmakers will have no other choice than reforming the Marriage Act to include same sex marriages, regardless of what are the conclusions of the Law Commission. If the court rules in the opposite way, it will be up to the Law Commission and South Africa's parliament whether same sex weddings are legalised.
The Constitutional Court earlier has used the non-discrimination paragraphs of South Africa's constitution to grant common law rights to gays and lesbians. The court has granted homosexual couples equal rights to pension benefits and to adopt children.
For now on, however, the Law Reform Commission is given time to continue its work, reviewing legislation affecting marriage and cohabitation. The Law Commission is expected to give its recommendations to the government within three months. Meanwhile, the government's appeal to the Constitutional Court will stop other courts from wedding homosexual couples.
The ruling in favour of same sex marriages was produced after a lengthy legal battle by a lesbian couple, demanding their right to get married. Marie Fourie (53) and Cecilia Bonthuys (43) two years ago asked the Pretoria High Court to accept their application to marry. The court dismissed their application, referring to the Marriage Act, but the Supreme Court of Appeal agreed the couple had a constitutional right to marry.
The 30 November judgement opening for same sex marriages created a lively debate in the South African press. The main political parties however made sure that the "moral debate" was kept within the party, not taking an official stand to the ruling. Only smaller parties not represented in parliament and religious groups protested the court ruling.
The South African Christian Leadership Assembly (SACLA), a network of conservative minority church groups, earlier this month even called for "a national referendum on the issue" of same sex marriages. The group referred to a recent survey showing that 78 percent of adult South Africans believe that homosexual relations are "always wrong", thus anticipating the results of a possible referendum.
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