Page:NCGLE v Minister of Home Affairs.djvu/2

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Heard on : 17 August 1999
Decided on : 2 December 1999


Ackermann J:


[1]This matter raises two important questions. The first is whether it is unconstitutional for immigration law to facilitate the immigration into South Africa of the spouses of permanent South African residents but not to afford the same benefits to gays and lesbians in permanent same-sex life partnerships with permanent South African residents. The second is whether, when it concludes that provisions in a statute are unconstitutional, the Court may read words into the statute to remedy the unconstitutionality. These questions arise from the provisions of section 25(5) ("section 25(5)") of the Aliens Control Act 96 of 1991 (the "Act") and the application of the provisions of section 172(1)(b) of the 1996 Constitution (the "Constitution") should section 25(5) be found to be inconsistent with the Constitution. Section 25(5) reads:

"Notwithstanding the provisions of subsection (4), but subject to the provisions of subsections (3) and (6), a regional committee may, upon application by the spouse or the dependent child of a person permanently and lawfully resident in the Republic, authorize the issue of an immigration permit."

[2]Section 25(5) was declared constitutionally invalid and consequential relief granted by