Page:NCGLE v Minister of Home Affairs.djvu/38

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Ackermann J

discrimination may be present and intersect.”

The prerequisite of marriage before the benefit is available points to that element of the discrimination concerned with marital status, while the fact that no such benefit is available to gays and lesbians engaged in the only form of conjugal relationship open to them in harmony with their sexual orientation represents discrimination on the grounds of sexual orientation. I propose dealing with the present case on this basis.

The impact of the discrimination on the affected applicants

[41]As affirmed in the Sodomy case the determining factor regarding the unfairness of discrimination is, in the final analysis, the impact of the discrimination on the complainant or the members of the affected group. The approach to this determination is a nuanced and comprehensive one in which various factors come into play which, when assessed cumulatively and objectively, will assist in elaborating and giving precision to the constitutional test of unfairness.[1] Important factors to be assessed in this regard (which do not however constitute a closed list) are:

(a) the position of complainants in society and whether they have suffered in the past from patterns of disadvantage;
(b) the nature of the provision or power and the purpose sought to be achieved by it.

  1. Above n 34 at para 19.