In the present case, like in M v H, there is significant pre-existing disadvantage and vulnerability.
I turn now to deal with the discriminatory impact of section 25(5) on same-sex life partners. I agree with the submission advanced on respondents’ behalf that section 25(5) is manifestly aimed at achieving the societal goal of protecting the family life of “lawful marriages” (which I understand to mean marriages which are formally valid and contracted in good faith and not sham marriages for the purposes of circumventing the Act) and certain recognised customary unions, by making provision for family re-unification and in particular by entitling spouses of persons permanently and lawfully resident in the Republic to receive permanent residence permits. The pertinent question that immediately arises is what the impact of being excluded from these protective provisions is on same-sex life partners.
- Above n 45 at para 69.