Equality in immigration law
Immigration without a marriage certificate: how South Africa's Constitutional Court put same-sex couples on a par with married couples in 1999.
On 2 December 1999, the South African Constitutional Court handed down a ruling that reached far beyond immigration law. It held unanimously that same-sex couples could no longer be disadvantaged when it came to immigration.
What was at stake? The Aliens Control Act of the time gave foreign spouses of people permanently resident in South Africa easier access to a residence permit. Those living in a permanent same-sex partnership, however, got nothing. These couples could not marry. So the door remained closed.
The National Coalition for Gay and Lesbian Equality brought the case together with several couples affected. A court in Cape Town had already declared the rule unconstitutional but given parliament twelve months to correct it. The Constitutional Court went further. In the judgment, Justice Lourens Ackermann wrote that the law discriminated on the grounds of sexual orientation and violated the rights to equality and dignity. Instead of waiting for the legislature, the court simply read the missing words into the law. With immediate effect, partners in a permanent same-sex life partnership were also eligible.
It was the first time the country's highest court had dealt with the recognition of same-sex relationships. And the first time a South African court had directly supplemented a law in this way.
This was made possible by the new constitution after the end of apartheid. It was one of the first in the world to explicitly prohibit discrimination on grounds of sexual orientation. Only a year earlier, the same organisation had won the decriminalisation of homosexual acts. The ruling became a building block for many more. Step by step over the following years, couples won in court what they were entitled to: pension fund benefits, joint adoption, recognition as a family.