“… the association of a man and a woman in a conjugal relationship according to indigenous law and custom, where neither the man nor the woman is party to a subsisting marriage, which is recognised by the Minister in terms of subsection (2);”
is based on an opposite-sex relationship. Under all these circumstances it is not possible to construe the word “spouse” in section 25(5) as including the foreign same-sex partner of a permanent and lawful resident of the Republic. The applicants were accordingly not able in law to pursue successfully a non-constitutional remedy, based on such a construction of “spouse”. Accordingly the respondents’ contention that the constitutional issue was not ripe for hearing was rightly dismissed by the High Court.
The constitutional validity of section 25(5)
It is convenient to deal at the outset with a submission advanced on the respondents’ behalf which is central to their approach to the case and their categorisation of the issues concerning the constitutionality of section 25(5). Mr Patel, who together with Ms Moroka and Mr Dhlamini appeared for the respondents, submitted that the Republic, as a sovereign independent state, was lawfully entitled to exclude any foreign nationals from the Republic; that it had an absolute discretion to do so which was beyond the reach of the Constitution and the courts; and that, to the extent that Parliament legislated to permit foreign nationals to reside in South Africa, it did so in the exercise of such discretion and that the provisions of such legislation were equally beyond the reach of the Constitution and the courts. He submitted that
- For this submission reliance was placed on, amongst others, DA Martin “Refugees and Migration” in Christopher C Joyner (ed) The United Nations and International Law, (American Society of International Law, Cambridge University Press, 1997) at 155; Sir Robert Jennings and Sir Arthur Watts Oppenheim’s