Page:NCGLE v Minister of Home Affairs.djvu/24

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Ackermann J

[25]The High Court correctly concluded that “spouse” as used in subsection 25(5) was not reasonably capable of the construction contended for by the respondents. The word “spouse” is not defined in the Act, but its ordinary meaning connotes “[a] married person; a wife, a husband.”[1] The context in which “spouse” is used in section 25(5) does not suggest a wider meaning. The use of the expression “marriage” in section 25(6) and the special provisions relating to a person applying for an immigration permit and “who has entered into a marriage with a person who is permanently and lawfully resident in the Republic, less than two years prior to the date of his or her application” is a further indication that “spouse”, as used in section 25(5), is used for a partner in a marriage. There is also no indication that the word “marriage” as used in the Act extends any further than those marriages that are ordinarily recognised by our law. In this regard reference may be made to the recent House of Lords decision in Fitzpatrick (A.P.) v Sterling Housing Association Ltd[2] where “spouse” likewise could not be given such an extensive meaning and Quilter v Attorney-General[3] where the statute at issue did not define “marriage” but the New Zealand Court of Appeal unanimously held that textual indications prevented the term from being construed to include same-sex unions.

[26]Had the word “spouse” been used in a more extensive sense in section 25(5) of the Act, it would have been unnecessary to provide specifically in section 1(1) that marriage “includes a customary union”. It is significant that the definition of “customary union” namely:

  1. New Shorter Oxford English Dictionary (Clarendon Press, 1993).
  2. Delivered on 28 October 1999 and as yet unreported. References are to the pages of the typescript judgment.
  3. [1998] 1 NZLR 523 (CA).