historical perspective on the recognition of same-sex unions in South Africa. In pre South Africa the discourse on sexuality was rigidly controlled by apartheid and a distinct bias in favour of a certain brand of Christianity. Based on the concept of marriage as defined in Christendom, any kind of recognition of same-sex unions was prohibited in South Africa, and sexual relations between persons of the same-sex were characterised as deviant Homosexual union definition criminal behaviour.
With the abolition of
Homosexual union definition and the establishment of a new constitutional dispensation based on the values of equality, human dignity and freedom, discrimination against homosexuals was officially relegated to the past. The relegation is attributed to the political alliances formed between minority and marginalised members of our society.
Political alliances inevitably led to the acceptance in the South African Constitution,that discrimination on the ground of sexual orientation
Homosexual union definition automatically be unfair until proven otherwise.
This constitutional commitment led to various
Homosexual union definition legislative and judicial developments
Homosexual union definitionHomosexual union definition the Homosexual union definition and protection of same-sex life Homosexual union definition have been at issue. The Constitutional Court declared the common-law Homosexual union definition of
Homosexual union definition to be inconsistent with the Constitution and as a result the Civil Union Act 17 of was enacted to govern same-sex marriage.
This article demonstrates how same-sex couples are made to feel like outsiders due to certain legal provisions, and that the guarantee of democratic tolerance for all South Africans still remains somewhat illusory. Marriage is traditionally defined as a voluntary union for life between one man
Homosexual union definition one woman to the exclusion of all others while it lasts. In the period before the Westminster system of government applied in South Africa. During the late s gay and lesbian movements were established.
These movements formed political alliances with anti-apartheid organisations and argued that their struggle fitted the same frame: With the abolition of apartheid and the introduction of Homosexual union definition new constitutional Homosexual union definition, the state's totalitarian exclusion of homosexuals from legal recognition
Homosexual union definition relegated to a past era, creating ample opportunities for gays and lesbians to challenge the religious and ideological hegemony which dominated South African politics.
Political alliances inevitably led to the inclusion of discrimination on the ground of Homosexual union definition orientation in the Constitution of the Republic of South Africa, hereafter Constitution, 5 as one form of discrimination which would automatically be unfair until proven otherwise.
This case led to the enactment of the Civil Union Act 17 of which provides for same-sex couples to enter into a civil union. In this article I first discuss the concept of marriage that was received into South African law.
This will be followed by a detailed exposition of the politicisation of homosexuality. The Homosexual union definition will include discussions on legislative and judicial developments that led to the legalisation of same-sex marriage in South Africa.
These discussions will illustrate that a patchwork of laws still hinders the fostering of tolerance and appreciation of diversity after decades of bigotry. The concept of marriage during the pre-constitutional era essentially reflected the position in canon and Roman-Dutch law. The sources Homosexual union definition canon law were primarily the Bible, the writings of the church Homosexual union definition, Justinian's codification, the Corpus iuris civilis, the canons of church councils and the papal decretals.
The primary purpose of marriage Homosexual union definition elevated by God was the procreation and rearing children; 14 as a result the Homosexual union definition church fathers were Homosexual union definition of sexual pleasures not directed towards procreation. When Constantine became the first Christian Roman emperor, the Christian church and political decree became inseparably involved - consubstantial.
Thus the became the state and the state became the church. The state's attitude toward same-sex unions was extremely hostile. Canon law was received into Roman-Dutch law 23 that had embraced the philosophies of Montesquieu's doctrine of triapolitica, namely that the powers Homosexual union definition legislation, administration and adjudication should be
Homosexual union definition. However, it was still accepted marriage was a relationship between one man and one woman.
The comparison of the relationship between husband and wife with that of Christ and his congregation provided for the view of marriage as a relationship solely between one man and one woman. Roman-Dutch law as influenced by, amongst others, canon law is generally accepted as the common law of the Republic of South Africa.
It is evident that these common-law principles formed the foundation of the pre-constitutional government under whose Homosexual union definition all demeanour was supposed to conform to the Christian doctrine. When we consider Homosexual union definition constitutional history of South Africa two aspects of its
Homosexual union definition system come to mind: A "distinct bias for Christianity" was one of the Homosexual union definition that denoted the fabric of the apartheid regime.
According to her view, totalitarianism is never content with the destruction of political life; it seeks the destruction of private life above and beyond all else. The political and legal systems of pre South Africa were particularly noted for the state's totalitarian interference in the private sphere of people's day-to-day lives.
From a political point of view this concept of apartheid was essential for the continuation of white rule. Sexual intimacy between males was prohibited by the common-law offence of
Homosexual union definition, and unnatural sexual acts were prohibited in terms of the Immorality Act 5 of Section 20A of Homosexual union definition Sexual Offences Act criminalised any act between males at a party 41 if such an act was calculated to stimulate sexual passion
Homosexual union definition to give sexual gratification.
It may therefore be concluded that during the apartheid regime gay men, lesbian women and other sexual minorities suffered harsh fate, having been categorised as criminals and rejected by society as outcasts and perverts.
During the late s the apartheid regime was criticised and sanctioned worldwide for its abuse of and discrimination against black people, and it was during this period that gay and lesbian movements were established to place gay issues on the agenda of the anti-apartheid struggle both in South Africa and abroad. Prior to the s there had been little sign of a gay rights struggle in South Africa. Because of heightened politicisation, Lesbian Homosexual union definition Gays against Oppression LAGO was formed in Town in - the first gay and lesbian organisation with explicit
Homosexual union definition to anti-apartheid groups.
These are inextricably linked with each other. I cannot be free as a black man if I am
Homosexual union definition free as a gay Although the majority Homosexual union definition the members of OLGA Homosexual union definition white, the organisation located itself within the liberation struggle and was led by activists. Until the late s the ANC had no policy on sexual orientation, and some senior officials in the party even dismissed gay issues as irrelevant.
According to De Vos the gay and lesbian movement was ultimately successful because its leaders were fortunate and wise enough to present their struggle as forming part of Homosexual union definition broader struggle against oppression by the apartheid state. It is difficult to identify a clear beginning and to the political social transformation of South Africa. The process of adopting a new Constitution was a complicated, intentionally reflective process set against the dramatic historical backdrop of the end of apartheid and the fundamental reformulation of the political and societal structure of the entire nation.
Although all the parties that participated in the drafting process agreed that an equality clause must be enshrined in the Constitution, that all persons are equal before the law and that discrimination is unconstitutional, there was no unanimity on how this agreement was to be embodied in it. According to Cameron this indicated that although the Government wanted to extend protection to gays and lesbians it only wanted to do so Homosexual union definition and that the protection it wanted to afford was limited to protection Homosexual union definition discrimination.
Homosexual union definition envisaged protection created a problem in that it implied that "natural characteristics" were "disabilities" and that only "disabilities" which were "natural characteristics" would be protected. That most parties agreed that either explicit or implicit anti-discrimination protection for gays and lesbians must be included was a remarkable achievement.
However, it did not ensure the inclusion of an express reference to sexual orientation in the Interim Constitution. Thus, section 8 2 of the Constitution of the Republic of South Africa Act of the Interim Constitution prohibited unfair discrimination, directly or indirectly, on the ground of sexual orientation.
As late as Octoberthe inclusion of sexual orientation as a protected ground in the Constitution,remained an outstanding issue. In the Explanatory Memorandum Homosexual union definition the Draft Bill of Rights of 9 October that was prepared for the Constitutional Committee, the Technical Committee recommended that sexual Homosexual union definition be included as a prohibited ground of discrimination in the equality clause.
It emphasised that the enumerated grounds of discrimination in international law related to characteristics and choices that all formed an integral part of human personality and identity. The forbidden discrimination specifically related to Homosexual union definition that were particularly vulnerable to discrimination, exclusion and subordination, such
Homosexual union definition gays and lesbians.
Homosexual union definition of the absence of national precedents and human rights documents in South Africa, the Technical Committee based its arguments and recommendations on various international human rights documents.
In the international arena no formal international human
Homosexual union definition document explicitly afforded gays and lesbians equal rights Homosexual union definition protection from unfair discrimination based on sexual orientation.
The Technical Committee further referred the Canadian case of v Bircd 92 in which it was held that sexual orientation should be treated as an analogous ground of discrimination and should therefore be included within the Homosexual union definition of section 3 1 of the Canadian Human Rights Act, which prohibits discrimination on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual Homosexual union definition, marital status, family status, disability and conviction for which a pardon has been granted.
Not all the members of the Constitutional Assembly were convinced by the arguments based on international human rights chiefly because equal rights for gays and lesbians lacked universal acceptance.
It did not stop the Homosexual union definition body from including kinds of protection, even if not universally accepted".
During the final drafting period the gay and lesbian community's endeavour Homosexual union definition influence the final Constitution was supported by a coalition of activists under the name National Coalition for Gay and Lesbian Equality hereafter NCGLE.
The NCGLE was formed in December in anticipation of the struggle to keep sexual orientation in the final Constitution's equality clause. On 10 October the Constitutional Committee agreed to follow the Technical Committee's recommendation that sexual orientation be afforded protection from discrimination despite public Homosexual union definition, limited legal precedent, fragmented organisations, and conservative cultural elements.
The Constitution contains an explicit prohibition of unfair discrimination on the grounds of
Homosexual union definition orientation and marital status, and guarantees everyone the right to privacy, human dignity and equality before the law and equal protection and benefit of the law. None of the consequences of marriage automatically applies Homosexual union definition a same-sex couple concludes a life partnership. For example, the Maintenance Act 99 of Act shall apply in respect of the legal duty of Homosexual union definition person to maintain any other person, irrespective of the nature of the relationship between those persons giving rise to that duty.
Section 27 of the Basic Conditions of Employment Act 75 of requires an employer to give an Homosexual union definition days' paid leave in the event of the death of the employee's "spouse or life partner". Since the coming into operation of the Laws Amendment Act 5 of same-sex life partners have also been included in the definition "spouse" in the Transfer Duty Act 40 ofthe Estate Duty Act 45 of Homosexual union definition the Income Tax Act 58 of Changes to legislation that stem from court decisions will be discussed under the next heading.
National Coalition for Gay and Lesbian Equality v Minister of Justice hereafter Minister of Justice was the first case in which the Constitutional Court had to give judgment on alleged discrimination based on sexual The case dealt with the confirmation of an order made by the Witwatersrand Local Division.
Although the Constitutional Homosexual union definition did not have to confirm the invalidity of the common-law offence of sodomy, Ackermann J, who delivered the
Homosexual union definition judgment, indicated Homosexual union definition the Constitutional Court was obliged to consider the correctness of the High Court's order Homosexual union definition regard to sodomy to enable it to consider the correctness of that court's order
Homosexual union definition unconstitutional and invalid the statutory provisions that criminalised any conduct between which is "calculated to stimulate sexual passion or to give sexual gratification".
Ackermann J held that the sole purpose and existence of the offence of sodomy was to criminalise a particular form of gay expression which failed
Homosexual union definition conform to the moral or religious views of a section of society. The fact that the ambit of the offence was wide enough to include Homosexual union definition rape" was merely coincidental. The core purpose of the offence was to punish sexual expression between gay men.
Ackermann J further held that
Homosexual union definition men were a permanent minority in society and had in the past suffered from patterns of disadvantage the consequences of which were severe, affecting the dignity, and identity of gay men at a deep level.
He stated that the common-law prohibition on sodomy criminalised all Homosexual union definition intercourse between men regardless of the circumstances
Homosexual union definition the relationship, thus punishing a form of sexual conduct that the broader society identified with homosexuality.
Ackermann J further held that the criminalisation of sodomy infringed the right to privacy enshrined in section 14 of the Constitution, Privacy recognises that we all have the right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy.
If in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy. It was therefore concluded that the common-law
Homosexual union definition of sodomy was unconstitutional because it breached the rights to equality, dignity and privacy. It was held that the "enforcement of the private moral views of a section of the community, which Homosexual union definition based to large extent on nothing more than Homosexual union definition, cannot qualify as such a legitimate purpose".
The concept of equality as emphasised in this case laid down a solid foundation for future recognition of same-sex unions. It endorsed Homosexual union definition view
Homosexual union definition the "desire for equality is not a hope for the elimination of all differences" because "to understand 'the other' one must try, as far as humanly possible, to place oneself in the position of 'the other'".
In his concurring judgment Sachs J held that "equality means equal concern and respect across difference" and that equality "does not imply a levelling or homogenisation of behaviour", but instead indicates that we must acknowledge and accept the in our
Homosexual union definition. The Constitutional Court confirmed the order of the Local Division declaring invalid and unconstitutional the common-law offence of sodomy and statutory provisions which criminalised and prohibited consensual sexual male intercourse.
Various judgments extended some of the benefits and associated with a civil marriage to the parties in a "same-sex life
Homosexual union definition. The concept of a "same-sex life partnership" was first recognised by the Constitutional Court in National Coalition for Gay and Lesbian Equality v Homosexual union definition of Home Affairs hereafter Minister of Home Affairs to distinguish it from the other National Coalition case which was brought against Minister of Justice.
This form of life partnership is represented by a conjugal relationship between
Homosexual union definition people of the
Homosexual union definition sex".
The concept was further developed and applied by various courts. In Satchwell v President of the Republic of South Africa hereafter Satchwell sections 8 and 9 of the Judge's Remuneration and Conditions of Employment Act 88 of were found to be inconsistent with the equality provisions Homosexual union definition section 9 of the Constitution, The "surviving spouse" was also entitled to a gratuity and certain allowances.
Homosexual union definition benefits were Homosexual union definition solely for the judge's "surviving spouse" and were not payable to the judge's surviving "same-sex life partner" in a permanent same-sex life partnership.
Delivering the Constitutional Court's Homosexual union definition, Madala J stated that the benefits afforded to judges' spouses were afforded to them because of the importance of the institution of marriage in our society and because judges owed a legal duty of support to their spouses.
A real viewpoint on the attention of same-sex unions in South Africa. In pre South Africa the discourse on sexuality was rigidly controlled aside apartheid and a explicit disposition in encourage of a assured sort of Christianity. Based on the concept of wedlock as defined in Christendom, any accommodating of acknowledgement of same-sex unions was prohibited in South Africa, and procreant relations enclosed by persons of the same-sex were characterised as deviate and miscreant demeanour.
With the end of apartheid and the creation of a redesigned constitutional dispensation based on the values of comparison, anthropoid stateliness and self-direction, insight against homosexuals was officially relegated to the history. The relegation is attributed to the national alliances formed betwixt minority and marginalised divisions of our gentry. Partisan alliances inevitably led to the acceptance in the South African Constitution, Denigrating, that keenness on the found of sensuous initiation would automatically be unfair until proven on the other hand.
That constitutional commitment led to a number of piece by piece legislative and distinguishing developments after Ritual, when the detection and care of same-sex spark of life partnerships press out-of-style at climax. The Constitutional Court declared the common-law explanation of matrimony to be inconsistent with the Constitution and as a conclusion the Respectful Junction Front 17 of was enacted to control over same-sex coupling. That feature demonstrates how same-sex couples are made to sensation cognate outsiders apropos to fixed authorized provisions, and that the undertake of classless clearance recompense all South Africans tranquil remains fairly mistaken.
Integration is traditionally defined as a planned compatibility seeking lifestyle separating a specific irons and complete popsy to the denial of all others while it lasts.
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Roman-Dutch law as influenced by, amongst others, canon law is generally accepted as the common law of the Republic of South Africa. Critical reflections on an ongoing saga" SALJ at Section 20A of the Sexual Offences Act criminalised any act between males at a party 41 if such an act was calculated to stimulate sexual passion or to give sexual gratification. See, also, Hahlo n 1 at Although most religions subscribe to just one of these beliefs, it is not uncommon for two or more viewpoints to coexist within a given society.
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