Langemaat VS Department of Correctional Services, Safety and Security

IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

Pretoria

Case Number: 19077/97 Date: 4 February 1998

In the matter between:

J L LANGEMAAT

and

MINISTER OF SAFETY AND SECURITY AND TWO OTHERS

JUDGMENT

ROUX, J.: The Applicant is an adult female member of the South African Police Services (SAPS). She holds the rank of captain. For the past fifteen years the Applicant has been employed by SAPS.

Since June 1986 the Applicant and Beverley Ann Myburgh have lived together. They are lesbians and cannot enter into a marriage. Despite this they own a house, operate joint finances, are financially co-dependant, make joint decisions and have named each other beneficiaries in their respective policies. On the undisputed facts I must conclude that theirs is an abiding and serious relationship.

The Applicant has applied to register Miss Myburgh as her dependant in terms of the medical aid scheme to which she belongs as a member of SAPS. The medical aid scheme suffers the acronym Polmed. Polmed was created in terms of the regulations to the Police Act, 7 of 1958. That Act was repealed by the South African Police Services Act of 1995. Section 72(4)(a) of the 1995 Act retained the regulations and they remain operative today.

Regulation 30(2)(b) (promulgated by Government Notice 203 of 14 February 1964 and amended by Government Notice R1864 of November 1994) contains two definitions relevant to this matter:

First, Regulation 30(2)(a) defines a member as --

"a serving member of the Force"

and, second, Regulation 30(2)(b) defines a dependant as:

"(b) Dependant

(i) The legal spouse or widow or widower or a dependant child of a member referred to paragraph (a)(I) and (ii), excluding those of a National Serviceman doing his national service in the Force; and unless otherwise directed by the Commissioner.

(ii) The legal spouse or widow or widower or a dependant child of a member referred to in paragraphs (a)(iii),(iv) and (v): provided that in the case of a customary law marriage only the first spouse dependants born from this union shall qualify as dependants: provided further that if such a widow or widower remarries, he or she shall forfeit all benefits and privileges accruing to them under the Regulation."

Polmed is governed by rules also made in terms of regulations I have mentioned. I am not aware if the rules are available in English. The Afrikaans text has been made available. Section 4.4 also contains a definition which is relevant:

"4.2 "Afhanklike van 'n lid" beteken 'n afhanklike soos omskryf in die Regulasies en dit beteken ook --

4.2.1 die wettige eggenote van 'n lid; en

4.2.2 'n afhanklike ongetroude kind bedoel in reel 4.11 wat -

4.2.2.1 Nog nie agtien-jarige leeftyd bereik het nie;

4.2.2.2 Reeds agtien-jarige leeftyd bereik het en wat besig is met primere, sekondêre of tersiere opleiding;

4.2.2.3 reeds agtienjarige leeftyd bereik het en wat liggaamlik of geestelik permanent ongeskik is vir die ope arbeidsmark; en

4.2.2.4 Sluit nie die afhanklike van 'n dienspligtige in reel 5.1.3 bedoel is nie."

The Third Respondent, the chairman of Polmed, refused the Applicant's formal request to register Miss Myburgh as a dependant, hence this application.

The relief sought in the notice of motion is the following:

"1. declaring Regulation 30(2)(b) of the South African Police Services' regulations to be in conflict with the provisions of the Constitution of the Republic of South Africa, Act 108 of 1996 and thus to be invalid;

2. declaring Rule 4.2 of the Third Respondent's rules to be in conflict with the provisions of the Constitution of the Republic of South Africa, Act 108 of 1996 and thus to be invalid;

3. reviewing and setting aside the decision of the second and/or of the third respondent not to register Beverley Ann Myburgh as the applicant's dependant for the purposes of the third respondent's operations;

4. directing the second and/or the third respondent to register Beverley Ann Myburgh as the applicant's dependant for the purposes of the third respondent's operations; and

6. ordering any of the respondents that oppose this application to pay the costs thereof."

The section of the Constitution relied upon is section 9(3):

"9. Equality

(3) The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

Should I hold that Regulation 30(2)(b) and Rule 4.2 are inconsistent with the Constitution I must apply section 172(1)(a) thereof. It provides:

"172. Powers of Court in constitutional matters.

(1) When deciding a constitutional matter within its power, a Court-

(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency."

A dependant is one who relies upon another for maintenance. Thus, while notionally legally obliged to maintain e.g. a wife, the husband is not bound to do so if his wife is affluent.

In my view there must always be two enquiries.

1. Does the dependant require financial aid?

2. Does the relationship between the two parties create a duty to maintain?

The first leg is relatively simple.

The second leg must take account of the times and society in which we live. Returning to the definitions governing Polmed it is clear that only legal spouses (with a proviso) and children (with exceptions) of members qualify. This represents a select group when one considers those whom Courts have held to be entitled to maintenance in proper cases. I refer to the following instances without claiming it to be a definitive list.

1. Grandparents vis-à-vis their grandchildren and vice versa.

2. Children to their parents.

3. Brothers and sisters to each other.

4. Divorcees towards each other.

Generally I refer to the extensively researched judgment of Curlewis JP in Ford v Allan and Another 1925 TPD 5.

The State must be held responsible for the creation of Polmed and particularly its rules which, by definition, exclude a great number of persons who are de facto dependants of its members. This, in my view, is discrimination. I need not quote the high-flown language used in the many judgments quoted to me by counsel to reach this conclusion. Not only are dependants discriminated against but also members who would have to find financial means elsewhere to pay for the medical care of excluded dependants.

The conclusion I have reached does not end the matter.

It was argued that the Applicant in any event would never succeed in having Miss Myburgh registered as a dependant. This submission questions her locus standi to bring the application. There is certainly something to be said for the suggestion that the Constitution has resurrected the actio popularis. Whatever, I believe the Applicant has a prima facie right to register Miss Myburgh as a dependant.

If reference is had, for example, to Ford v Allan (supra), Motan v Joosub 1930 (AD) 6, Waterson v Maybury 1934 TPD 210 and In re: Visser 1948 (3) 1129 (CPD), the principles certainly are not clear as to who is under a duty to maintain.

I agree with the eminent counsel who appeared in the Motan's matter when he submitted:

"The Roman Dutch law writers accepted the principle that the obligation was based on equality, reason, filial affection, and sort of a sense of decency."

The Roman sense of equity and decency even obliged a man to maintain his freed slaves.

I would ignore my experience and knowledge of several same-sex couples who have lived together for years. The stability and permanence of their relationship is no different from the many married couples I know. Both types of union are deserving of respect and protection. If our law does not accord protection to the type of union I am dealing with then I suggest it is time it does so. This is how I understand what section 39(2) of the Constitution has in mind.

It is not insignificant to note section 35(2)(f) of the Constitution. This section creates rights for a spouse or partner. The Afrikaans text makes this clearer, namely "gade of lewensmaat".

Parties to a same-sex union, which has existed for years in a common home, must surely owe a duty of support, in all senses, to each other.

During argument counsel referred me to Canadian judgments and others in the United States of America. They are, at face value, support for the conclusions I have come to. AS I know nothing about the hierarchy of these Courts I hesitate to quote their judgments in support of my views.

Although the English Courts do not deal with constitutional issues, as here or in Canada or the United States, I find myself more at ease with a hierarchy I understand.

In a recent matter in the Court of Appeal, Waite LJ quotes Professor Bailey-Harris' article in the International Journal of Law of the Family with approval and I believe it is worth recitation:

"A plural society requires the law not merely to tolerate but rather to recognise and support diversity in the family formation. In other words, to authenticate a range of family forms."

Having quoted that the learned Judge then proceeded:

"In my judgment our society has shown itself to be tolerant enough to free itself from the burdens of stereotype and prejudice in all their subtle and ugly manifestations. The common man may be vaguely disapproving of homosexual relationships which is not for him but, having shrugged his shoulders, he would recognise that the relationship was to all intents and purposes a marriage between those partners. They lived a life akin to that of any husband and wife. They were so bound together that they constituted a family."

This, with respect, is in concert with my views. More important, it reflects what should be the views of a thinking and decent society.

The Respondents rely on section 36 of the Constitution. They fear a flood of applications from unmarried persons, be they hetero- or homosexual, to register their mates as dependants. There is no merit in this. The Third Respondent will consider every application and make an appropriate decision on the merits. Marriages of short duration seldom warrant orders of support. He will also consider the financial means of the two persons. If anything, a proper consideration of the merits of each application could possibly save money.

Section 36 offers the Respondents no basis for opposition.

What I have said about the Third Respondent's functions brings me to prayer 4 of the notice of motion which I have quoted above.

The Third Respondent refused to register Miss Myburgh on the basis of the definition of a dependant. Indeed he had no option but to refuse the application. While I believe he will make the proper decision in the future it remains his function to decide the issue. I cannot make that decision for him. Only after he makes a decision will a Court be entitled to review it and either agree or disagree with him.

In this regard I would refer to two judgments which illustrate what I am saying: First, Netto v Clarkson and Another 1974 (1) SA 66 (D) and Meyer v the South African Medical and Dental Council 1982 (4) SA 450 (TPD).

Counsel agreed that costs should follow the result.

Order

In the result therefore I make the following orders:

1. Prayers 1, 2, 3 and 6 of the notice of motion are granted.

2. The third respondent is directed to consider the Applicant's request to register Miss Myburgh as her dependant without the complication of a definition of what a dependant is and generally in the light of the remarks I have made in this matter.