impugned provisions are indeed justifiable in terms of section 36 of the Constitution.
The impugned provisions do not prevent lesbian or gay people from adopting children at all. They make no provision however for gay and lesbian couples to adopt children jointly. In this regard, they are not the only legislative provisions which do not acknowledge the legitimacy and value of same-sex permanent life partnerships. It is a matter of our history (and that of many countries) that these relationships have been the subject of unfair discrimination in the past. However, our Constitution requires that unfairly discriminatory treatment of such relationships cease. It is significant that there have been a number of recent cases, statutes and government consultation documents in South Africa which broaden the scope of concepts such as “family”, “spouse” and “domestic relationship”, to include same-sex life partners. These legislative and
- See National Coalition v Minister of Home Affairs, above n 10; Satchwell, above n 10; and Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T).
- See section 27(2)(c)(i) of the Basic Conditions of Employment Act 75 of 1997 providing for family responsibility leave in the event of death of a “spouse or life partner”; section 1(vii)(b) of the Domestic Violence Act 116 of 1998 referring to the definition of “domestic relationship”; and the definition of “spouse” in section 1 of the Estate Duty Act 45 of 1955 has been amended by section 3(a) of the Taxation Laws Amendment Act 5 of 2001 which now provides that “… ‘spouse’, in relation to any deceased person includes a person who at the time of death of such deceased person was the partner of such person … in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be permanent …”.
- See, for example, Section 1 Chapter 8 Draft White Paper for Social Welfare, Ministry for Welfare and