On the issue of ripeness the argument followed much the same line as in the High Court. The contention was that the only remedy pursued by the second to seventh applicants was the obtaining of exemptions under section 28(2) of the Act. The decision regarding an exemption was one to be taken by the Minister. The applicants in question have never applied for an immigration permit under the provisions of section 25 of the Act, which application has to be dealt with by a regional committee and not the Minister. Without having followed such a course, so the argument ran, the applicants had not forced a determination of the issue as to whether a foreign national same-sex partner of a permanent and lawful resident in South Africa was entitled to be treated as a spouse and to the preferential treatment envisaged by section 25(5). The applicants had accordingly failed to pursue a non-constitutional remedy which, if successful, might have rendered it unnecessary to consider the constitutional validity of section 25(5). Such failure was in conflict, so it was contended, with the general principle, referred to in the previous paragraph, that where it is possible to decide any case without reaching a constitutional issue, that course should be followed.
According to the respondents’ argument, it was reasonably possible that a regional committee might, under section 39(2) of the Constitution, interpret “spouse” in section 25(5) of the Act as including a same-sex life partner, thus making it unnecessary to consider the constitutional validity of the subsection. In my view the word “spouse” cannot, in its context, be so construed. There is, it is true, a principle of constitutional interpretation that where it is
- Section 39(2) provides:
“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”