Page:NCGLE v Minister of Home Affairs.djvu/81

This page has been proofread, but needs to be validated.

Ackermann J

[84]The legislature is empowered to amend or fine-tune any extension that the Court, through its order, might make to section 25(5), or to do so with regard to any related or relevant provision, in order to give more accurate effect to its policy, provided it does so in a manner which is not inconsistent with the Constitution. Equal protection and non-discrimination as guaranteed under section 9 do not require identical treatment.[1] The family unit of a same-sex life partnership is different from the family unit of spouses and to treat them identically might in fact, in certain circumstances, result in discrimination. Spouses in a conventional marriage are in a legal relationship acknowledged by the law in a particular way and the existence of the conventional marriage is capable of easy and virtually incontestable proof; the legal relationship can also not be terminated without the intervention of the courts. Same-sex life partnerships are as yet not recognised or protected in a comparable manner by the law. In order to ensure equal protection and non-discrimination for persons in such different family units it might be necessary to treat them differently.[2]

[85]Reasonable legislative and administrative steps may be taken to prevent abuse of section 25(5) and evasion of the provisions of the Act generally. Section 25(6) is such a step for it provides that

“[a] regional committee may, in the case of a person who applies for an immigration


  1. See President of the Republic of South Africa and Another v Hugo above n 56 at para 41, n 63 and at para 112 of that judgment; and compare Hogg above n 38 at paras 52.6 (a) and (b).
  2. Pretoria City Council v Walker 1998 (3) BCLR 257 (CC); 1998 (2) SA 363 (CC) at para 46.

81