South Africa: Constitutional Court upholds Right to Marriage

Organised Lesbian and Gay Sector Welcomes the Constitutional Court's Judgment on Same Sex Marriages
Released by the Joint Working Group (JWG)

The organised gay and lesbian sector welcomes this morning's Constitutional Court judgement and urges parliament to rectify the relevant statutory defects, with regard to same sex marriage, in line with the framework of the Court's ruling.

As the JWG we are proud to be in a Constitutional democracy that honours the equality and dignity of all citizens, as reflected in the judgement. In terms of the current form of both the common and statutory laws of marriage, the Court's ruling acknowledges the denial of equal protection of the law, as well as the unfair discrimination of the State, against lesbian and gay people. As such, the Court was unanimous in declaring the common law definition of marriage and the Marriage Act unconstitutional, as they infringe our right to equality and dignity.

Furthermore, in line with previous decisions, the Court asserts the rights of lesbian and gay people to access equal benefit and protection of the law and for our relationships to hold equal status in the eyes of the law.

The remedy ordered by the Court is such that Parliament is now required to amendment marriage legislation in line with the framework set out in the judgment. In reality this means that lesbian and gay people cannot marry with immediate effect, as the Court has suspended the invalidity of the statute and common law, to allow for the legislature to correct their inherent defects. Should parliament not correct the defects within a 12 months period, the Court orders the reading in of the word 'spouse' to the Marriage Act. In the case of the Court's remedy, we do believe that the minority judgement would have been a preferable outcome in that it proposed relief for lesbian and gay couples through an immediate change to the common law definition of marriage. However, the Court "recognises the multitude of family formation in South Africa, and the inappropriateness of entrenching any particular form as the only socially and legally acceptable one." We believe that this principle should guide the statutory process of correcting the current defects in marriage laws, such that lesbian and gay people will be able to claim their right to equal social and legal status in marriage.

The challenge is now for Parliament to enact changes to marriage legislation, as speedily as possible, to ensure full equality in status, benefit and protection for same sex relationships. Anything less than this will remain unequal.

This press statement is issued of behalf of the Joint Working Group (JWG), which includes the following organisations:

  • OUT LGBT Well-being
  • Behind the Mask
  • Forum for the Empowerment of Women
  • The Triangle Project
  • The Gay and Lesbian Archives
  • Durban Gay and Lesbian Community Centre

The JWG is an informal network of registered non profit organisations providing services to LGBTI people across South Africa. It aims to strengthen the organised LGBTI sector, and to maximise combined responses to LGBT needs through partnerships, the collective use of resources, and by drawing on the strengths of participating organisations.

For more information contact:

Melanie Judge
Programme Manager
OUT LGBT Well-being
Tel: 083 2712543
Thuli Madi
Behind the Mask
Tel: 073 2279635
Fikile Vilakazi
Advocacy Officer
Forum for the Empowerment of Women
Tel: 083 3743277