Page:NCGLE v Minister of Home Affairs.djvu/87

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Ackermann J

applications be paid on an attorney and client basis.


[97]Section 25(5) of the Aliens Control Act 96 of 1991, by omitting to confer on persons, who are partners in permanent same-sex life partnerships, the benefits it extends to spouses, unfairly discriminates, on the grounds of their sexual orientation and marital status, against partners in such same-sex partnerships who are permanently and lawfully resident in the Republic. Such unfair discrimination limits the equality rights of such partners guaranteed to them by section 9 of the Constitution and their right to dignity under section 10. This limitation is not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom and accordingly does not satisfy the requirements of section 36(1) of the Constitution. This omission in section 25(5) of the Act is therefore inconsistent with the Constitution. It would not be an appropriate remedy to declare the whole of section 25(5) invalid. Instead, it would be appropriate to read in, after the word “spouse” in the section, the words “or partner, in a permanent same-sex life partnership”. The reading in of these words comes into effect from the making of the order in this judgment.

[98]The following order is made:

1. The applications of the respondents for
(a) condonation of their failure to file answering affidavits in the High Court;
(b) leave to file their answering affidavits;
(c) the matter concerning the filing of answering affidavits to be remitted to the High Court; and