[91]In reaching that conclusion the Constitutional Court held that the total exclusion of homosexual persons from the provisions of the subsection constituted unfair discrimination. It also held that, for substantially the same reasons as those set out in its judgment in relation to unfair discrimination, s 25 (5) ‘simultaneously constitutes a severe limitation on the s 10 right to dignity enjoyed by … gays and lesbians’ who are permanently resident in the Republic and who are in permanent same-sex life partnerships with foreign nationals.
[92]The reasoning leading up to that conclusion is conveniently set out in paras 53 to 57 of the judgment in the Home Affairs case, which read as follows:
‘[53] The message that the total exclusion of gays and lesbians from the provisions of the subsection conveys to gays and lesbians and the consequent impact on them can, in my view, be conveniently expressed by comparing (a) the facts concerning gays and lesbians and their same-sex partnerships which must be accepted, with (b) what the subsection in effect states:
(a)
(i) Gays and lesbians have a constitutionally entrenched right to dignity and equality; (ii) sexual orientation is a ground expressly listed in s 9(3) of the Constitution and under s 9(5) discrimination on it is unfair unless the contrary is established;
