Page:NCGLE v Minister of Home Affairs.djvu/78

From Wikisource
Jump to navigation Jump to search
This page has been proofread, but needs to be validated.

Ackermann J

[80]The group that reading in would add to “spouses” in section 25(5), namely same-sex life partners, must be very small in comparison to the group benefited by the section. No statistics were provided by any of the litigants to quantify this, but it is safe in my view to make this assumption. The government’s policy behind the section 25(5) benefit would thus be left intact by a reading in remedy and the budgetary implications would be minuscule.

[81]In my view the observations made in Fose[1] which were quoted above[2] are of particular application in the present case. In order for the norms and values lying at the heart of our Constitution to be made concrete, it is particularly important for the Court in this case to afford an effective remedy, which will also be seen to be effective, to the eighth to thirteenth applicants, and people similarly placed within the context of section 25(5). If, in order to do this properly, new tools have to be forged and innovative remedies shaped, this must be done.

[82]An appropriate remedy in the present case must vindicate the rights of permanent same-sex life partners to establish a family unit that, while retaining the characteristic features derived from its same-sex nature, receives the same protection and enjoys the same concern from the law and from society generally as do marriages recognised by law. But it must vindicate at more than an abstract level. It must operate to eradicate these stereotypes. Our constitutional commitment to non-discrimination and equal protection demands this. There is a wider public dimension. The bell tolls for everyone, because

  1. Above n 89.
  2. Id at para 65.