Van Heerden AJ
already died or who die before the law is changed or before they have the opportunity to make use of any new dispensation.
[26] In my view, paragraph 2 of the High Court order should be confirmed for the reasons that follow.
[27] As was stated by Sachs J in Fourie,[1] the judgment in that case –
“… [left] open for appropriate future legislative consideration or judicial determination the effect, if any, of this judgment on decisions this Court has made in the past concerning same-sex life partners who did not have the option to marry. Similarly, this judgment does not pre-empt in any way appropriate legislative intervention to regulate the relationships (and in particular, to safeguard the interests of vulnerable parties) of those living in conjugal or non-conjugal family units, whether heterosexual or gay or lesbian, not at present receiving legal protection. As the SALRC[2] has indicated, there are a great range of issues that call for legislative attention.” (footnote omitted).
[28] Any change in the law pursuant to Fourie will not necessarily amend those statutes into which words have already been read by this Court so as to give effect to the constitutional rights of gay and lesbian people to equality and dignity. In the absence of legislation amending the relevant statutes, the effect on these statutes of
- ↑ Above n 9 at para 160.
- ↑ South African Law Reform Commission, in its Project 118 on Domestic Partnerships, discussed by Sachs J in Fourie at paras 125–131. In 1998, a Project Committee under the chairmanship of Howie P of the Supreme Court of Appeal was appointed by the Minister of Justice and Constitutional Development to assist the SALRC in this Project 118, an investigation into domestic partnerships (heterosexual and same-sex). In October 2001, the Commission published an issue paper in the form of a questionnaire (Issue Paper No 17). This elicited a lively and widespread response and, in August 2003, a discussion paper (Discussion Paper No 104) was published for general information and comment (see further in this regard the judgment of Sachs J in Fourie at paras 28 and 126–128). In March 2006, the Commission handed its final Report on Domestic Partnerships, with draft legislation attached, to the Minister for her consideration and this report was subsequently released in October 2006.
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