Page:NCGLE v Minister of Home Affairs.djvu/57

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Ackermann J

[57]There is nothing in the scales to counteract such conclusion. I accordingly hold that section 25(5) constitutes unfair discrimination and a serious limitation of the section 9(3) equality right of gays and lesbians who are permanent residents in the Republic and who are in permanent same-sex life partnerships with foreign nationals. I also hold, for the reasons appearing throughout this judgment and culminating in the conclusion reached at the beginning of this paragraph, that section 25(5) simultaneously constitutes a severe limitation of the section 10 right to dignity enjoyed by such gays and lesbians. Having come to this conclusion it is unnecessary to consider whether any of the freedom of movement rights of the eighth to the thirteenth applicants, guaranteed under section 24 of the Constitution, have been limited in any way by section 25(5).


[58]I now apply the section 36(1) justification analysis, incorporating that of proportionality applied to the balancing of different interests, as enunciated in S v Makwanyane and Another[1] and as adapted for the 1996 Constitution in the Sodomy case.[2] The rights limited, namely equality and dignity, are important rights going to the core of our constitutional democratic values of human dignity, equality and freedom.[3] The forming and sustaining of intimate personal relationships of the nature here in issue are for many individuals essential for their own self-understanding and for the full development and expression of their human personalities. Although expressed in a different context and when marital status was not a ground specified in

  1. 1995 (6) BCLR 665 (CC); 1995 (3) SA 391 (CC) para 104.
  2. Above n 34 at paras 33–5.
  3. See sections 1(a) and 7(1) of the Constitution.