Page:NCGLE v Minister of Home Affairs.djvu/31

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Ackermann J

[32]In dealing with the equality challenge I shall follow the approach laid down by this Court in various of its judgments as collated and summarised in Harksen v Lane NO and Others[1] and as applied to section 9 of the Constitution in the Sodomy case.[2] The differentiation brought about by section 25(5) is of a negative kind. It does not proscribe conduct of same-sex life partners or enact provisions that in themselves prescribe negative consequences for them. The differentiation lies in its failure to extend to them the same advantages or benefits that it extends to spouses. The applicants’ complaint, as upheld by the High Court, is in effect that section 25(5) is “under-inclusive [because] it confers a benefit on a class that is defined too narrowly in that the class fails to include all members that have an equality-based right to be included.”[3] This is, for purposes of establishing a breach of the right to equality, constitutionally irrelevant. Section 9(1)

  1. 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) at para 53 per Goldstone J.
  2. Above n 34 at paras 58–63.
  3. P Hogg Constitutional Law of Canada 3ed (Carswell, Toronto, 1992) at para 37.1(h) at 910.