Dig for information on important Court cases 1993 - 2003
The National Coalition for Gay and Lesbian Equality (NCGLE), now known as the Lesbian and Gay Equality Project has tirelessly fought to overturn laws dating back to the apartheid period that are in violation of the South African Constitution of 1996 (article 9 (iii)) that specifically states: "the state may not unfairly discriminate against anyone on the basis (..) of sexual orientation". The Equality Project has often gone to the Constitutional Court in conjunction with the Commission on Gender Equality and the Human Rights Commission. The cases have all been landmark judgments, in some instances international firsts.
Cases are listed in reverse chronological order under the follow headings:
Consitutional Court cases each have their own page with more details.
Equality -- unfair discrimination on grounds of sexual orientation and marital status -- ss 17(a), 17(c) and 20(1) of the Child Care Act 74 of 1983 and s 1(2) of the Guardianship Act 192 of 1993 (providing for the joint adoption and guardianship of children by married persons only) unconstitutional.
Constitutional Court - CCT40/01
Judgment date: 10 September 2002
Right to equality -- unfair discrimination -- sexual orientation -- ss 8 and 9 of Judges' Remuneration and Conditions of Employment Act 88 of 1989 unconstitutional.
Constitutional Court - CCT45/01
Judgment date: 25 July 2002
Right to equality -- unfair discrimination on grounds of sexual orientation and marital status -- remedy of 'reading in'
Constitutional Court - CCT10/99
Judgment date: 2 December 1999
Right to equality -- right to dignity -- right to privacy -- constitutionality of common law offence of sodomy and related statutory offences
Constitutional Court - CCT11/98
Judgment date: 9 October 1998
Dependant's action - widow and deceased husband married in terms of Islamic law - de facto monogamous marriage - right of spouse to support in such a union worthy of public recognition and protection by the law - Multilateral Motor Vehicle Accidents Fund legally liable to compensate widow for loss of support of her husband.
» Judgment in Amod (born Peer) v Multilateral Motor Vehicle (Case number: 444/98) issued 29 September 1999. (pdf)
High Court judgment passed down in favour of the applicants, two adult women in a permanent same sex relationship, who wish to be registered as the mother and parent respectively of twins given birth to by B from the gametes of J and an anonymous male donor.
» Judgment in J & B vs Home Affairs (Case number: 1906/2002) issued October 2002. (pdf)
In 2002 the Lesbian & Gay Equality maked submissions to the High Court of South Africa arguing that a thorough reappraisal of the common law prohibition of same-sex marriages is required.
» Submissions on behalf of the Lesbian and Gay Equality Project. (Case Number: 17280/02)
The Equality Projected instituted action against Minister Trevor Manuel after the Department of Finance failed to provide the surviving same sex partners of state employees with equal pension benefits, as compared to the surviving spouses of state employees.
» Founding Affidavit (2001-08-28)
» Press release: Equality Project Sues Minister of Finance over Pensions (2001-08-28)
» Press release: Class action against Minister of Finance settled (2002-03-17)
The High Court hands down judgement ordering that the same-sex long-term partners of gay and lesbian South Africans may not be deported under the Aliens Act and that the latter contravenes Article 9 (3) of the South African Constitution (1996).
» Judgment in NCGLE and others VS the Minister of Home Affairs and others (Case number: 3988/98).
In a land mark case a lesbian policewoman, Captain Langemaat, wins a court case against the Minister of Safety and Security over spousal dependency and resulting benefits. The judge finds the Department of Safety and Security acting unconstitutionally and orders all court costs be paid by them.
» Judgment in J L Langemaat VS Minister of Safety And Security and two others (Case Number: 19077/97) issued 4 February 1998.
Husband and wife (divorced) where the mother fought for access to minor children where the non-custodian parent (mother) was participating in a lesbian relationship. In defining the mother's rights of access, the Court recognised that she can live in whatever way she liked and that her interest in so living should be respected and protected. The court however also recognised the dangers of such lifestyle to minor children so that the mother's rights of the children sleeping over at mother's residence the were contingent on her not sharing a bedroom with the lesbian partner. The 1993 judgment would probably be found discriminatory today.
» Judgment in Van Rooyen VS Van Rooyen (Case Number: 22547/92) issued 10 March 1993.
The Court of Appeal for Ontario upholds a lower court decision that the common law definition of marriage offends the same sex couples' equality rights in a manner that cannot be justified in a free and democratic society. The Court declares the current definition of marriage to be invalid, reformulates the definition of marriage to be “the voluntary union for life of two persons to the exclusion of all others”, and orders the declaration of invalidity and the reformulated definition to have immediate effect.
The Pension Funds Adjudicator (PFA) awards a full pension benefit to the surviving same sex partner of a deceased Mutual & Federal employee. The PFA overrules the decision of the fund to pay part of the benefits to members of the deceased's family. The PFA says the Fund improperly applied their discretion and that any nomination that the deceased made in favour of her estate is in any event in fraudem legis.
The Pension Funds Adjudicator (PFA) finds right of a surviving same sex partner to obtain an equal pension benefit to that of a surviving spouse. It is very important to note that this finding declares that this right is not even dependent on whether the deceased partner had so directed in her or his will.
» Determination in Rory Martin v BEKA Provident Fund (08/06/1999) (pdf)