Page:NCGLE v Minister of Home Affairs.djvu/28

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Ackermann J

[28]Such an argument, even if correct, would not assist the respondents, because in the present case we are not dealing with such a category of foreign nationals, but with persons who are in intimate life partnerships with persons who are permanently and lawfully resident in the Republic (to whom I shall refer as “South Africans”). This is a significant and determinative difference. The failure of the Act to grant any recognition at all to same-sex life partnerships impacts in the same way on the South African partners as it does on the foreign national partners. In my view this case can, and ought properly to be decided, on the basis of whether section 25(5) unconstitutionally limits the rights of the South African partners, namely the eighth to the thirteenth respondents. In an important line of decisions, the Zimbabwean Supreme Court has held that the constitutional right of citizens to freedom of movement is contravened when the foreign national spouses of such citizens are denied permission to reside in Zimbabwe.[1] We do not reach the question of freedom of movement in the present case but it is important to note that the issue of the contravention in the Zimbabwean cases was considered in relation to the rights of the citizen spouse residing in Zimbabwe.

[29]Such an approach presents no procedural or substantive difficulty. It is true that the parties seeking immigration permits are the foreign national partners. On the objective theory of unconstitutionality adopted by this Court[2] a litigant who has standing may properly rely on the objective unconstitutionality of a statute for the relief sought, even though the right

  1. Rattigan and Others v Chief Immigration Officer, Zimbabwe, and Others 1995 (2) SA 182 (ZSC); Salem v Chief Immigration Officer, Zimbabwe, and Another 1995 (4) SA 280 (ZSC); Kohlhaas v Chief Immigration Officer, Zimbabwe, and Another 1998 (3) SA 1142 (ZSC), particularly at 1146 E–1147 B.
  2. See Ferreira v Levin above n 19 at paras 26–28; New National Party of South Africa v Government of the Republic of South Africa & Others 1999 (5) BCLR 489 (CC); 1999 (3) SA 191 (CC) at para 22; Member of the Executive Council for Development Planning and Local Government, Gauteng v the Democratic Party