South Africa
Same-sex couples' rights confirmed in South Africa

afrol News, 28 February - The South African Constitutional Court is discussing a September 2001 Pretoria High Court ruling extending the work place benefits of gay and lesbian couples. While the government fully accepts the rights extension to same-sex couples, it seeks to avoid a further extension to not-married heterosexuals.

The South African constitution guarantees the rights of sexual minorities although a series of laws and regulations discriminate gays and lesbians on the work place and in other fields of life. These laws, often older than the constitution, are being attacked successfully in South African courtrooms.

Last year, Judge Kathleen Satchwell won the right for her partner to enjoy the same benefits as those previously reserved for spouses of heterosexual judges in a case against the South African government. The government was ordered to change several law texts found unconstitutional and include the words "or partner, in a permanent same-sex life partnership" to the word "spouse". Same-sex marriage is not allowed in South Africa.

The state had cited "an additional financial burden" as one main reason for not extending to homosexual partners benefits enjoyed by the spouses of public servants. This was rejected as unconstitutional by the Pretoria High Court in September. Ideological reasons for differentiating between hetero- and homosexual couples were not mentioned by the government headed by ANC, the party that itself had secured the inclusion of gay rights in the constitution.

When Kathleen Satchwell's case this week was brought to the Constitutional Court, it was not with the intention to overrule the Pretoria sentence. Ishmael Semenya, representing the government, actually said Satchwell should have challenged the constitutional validity of the legal obstacle that prevents her marry her partner when the case was brought up for the Pretoria High Court.

The Constitutional Court is treating an application for confirmation of the September 2001 ruling. Semenya yesterday said the ordered law text changes would redress the situation of same-sex couples only and, would not address the position of heterosexuals in a similar position. A 1994 study had revealed that 33 percent of blacks and 42 percent of whites in South Africa between the ages of 22 and 29 were living together without being wedded.

While totally accepting that "longstanding same-sex relationships" should receive the same benefits as married couples, the South African government fears that the Pretoria ruling "would open a floodgate of other unmarried partners" seeking benefits from the government.

Satchwell last year had asked the Pretoria court to declare unconstitutional part of the Judges Remuneration and Conditions of Employment Act, which prevents her partner of 14 years, Lesley Carnelly, from receiving the gratuity and pension payable to a spouse on a judge's death. 

Satchwell's lawyer, Paul Jammy, had argued throughout the Pretoria case that government fears every unmarried public servant would be seeking to register their partners to receive spouses' benefits were groundless. It was "relatively easy to develop criteria for which partners would have to qualify," he argued. Mrs Satchwell's concrete case would affect "only about three other judges in same-sex relationships."

In another case, The Pretoria High Court in September ruled that same sex couples could legally adopt children as couples. Judge Anna-Marie de Vos, herself from the Pretoria High Court, and her artist partner Suzanne du Toit had applied to the court to declare as unconstitutional those sections barring Du Toit from becoming the legal guardian of De Vos' two adopted children. According to South African law, only married couples could co-adopt children. The Minister of Social Development did not oppose de Vos' successful application.

Sources: Based on South African courts, press and govt. and afrol archives

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