Is such discrimination fair?
[89]Section 9(5) provides that discrimination on a ground listed in s 9(3) is unfair unless it is established that the discrimination is fair. No attempt was made by the respondents to establish the fairness of the discrimination. Instead they contended that there was differentiation in this case but not discrimination, a submission which for the reasons given above I cannot accept.
[90]In my opinion there can be no doubt that the discrimination flowing from the application of the common law definition of marriage is unfair. In the Home Affairs case the Constitutional Court considered the provisions of s 25(5) of the Aliens Control Act 96 of 1991, which empowered a regional committee of the immigrants selection board to dispense with certain pre-conditions in authorising the issue of an immigration permit to the foreign spouse of a person permanently and legally resident in South Africa upon the application of such spouse, and held that the omission from the subsection after the word ‘spouse’ of the words ‘or partner in a permanent same-sex relationship’ was inconsistent with the Constitution. It held further that the subsection should be read as though the words omitted appeared therein after the word ‘spouse’.
