Page:NCGLE v Minister of Home Affairs.djvu/58

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Ackermann J

section 8(2) of the interim Constitution, the following remarks of O’Regan J in Harksen,[1] are apposite:

“I agree that marital status is a matter of significant importance to all individuals, closely related to human dignity and liberty. For most people, the decision to enter into a permanent personal relationship with another is a momentous and defining one.”

The effect of omitting same-sex life partnerships from section 25(5) limits the above rights at a deep and serious level.

[59]There is no interest on the other side that enters the balancing process. It is true, as previously stated, that the protection of family and family life in conventional spousal relationships is an important governmental objective, but the extent to which this could be done would in no way be limited or affected if same-sex life partners were appropriately included under the protection of section 25(5). There is in my view no justification for the limitation in the present case and it therefore follows that the provisions of section 25(5) are inconsistent with the Constitution and invalid.

[60]It is important to indicate and emphasise the precise ambit of the above holding. The Court is in the present case concerned only with partners in permanent same-sex life partnerships. The position of unmarried partners in permanent heterosexual partnerships and


  1. Above n 36 at para 93.

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