Laws

SOUTH AFRICA

Limited information only available for these topics

Access to Children
Adoption of Children
Age of Consent
Anti-Vilification
Artifical Insemination
Assisted Reproduction
Asylum / Refugees
Censorship, Free Speech
  Civil Unions
Custody of Children
Discrimination
Estates, Wills
Fostering Children
Gender Identity
Harassment
Hate Crimes
  Health, Medical
HIV/Aids
Homosexuality
Immigration
Inheritance, Succession
In Vitro Fertilisation (IVF)
Marriage
  Military
Parenting
Partners
Property
Sodomy
Transgender, Transsexual
Violence
Wrongful Death

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Age of Consent Legislation/Cases/References
1.

National

On 13 December 2007, the Criminal Law (Sexual Offences and Related Matters) Amendment Act amended the legal age of consent for males and females, both heterosexual and homosexual, to a uniform 16 years old [L1.3], [R1.2].

Previously:

Same-sex consensual sex between same-sex couples was lawful for gay men and lesbian aged 19 years. Opposite-sex sexual activity was lawful at age 16 [R1.1].

2.

Courts & Trbunals

On 26 November 2008, the Constitutional Court declared that the unequal ages of consent in sections 14(1)(b) and 14(3)(b) of the erstwhile Sexual Offences Act were unconsitutional [C2.1].

L1.3 Government Gazette: No. 32 of 2007: Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 PDF 3.19MB, 14 DEC 08
R1.2 Mail & Guardian: Is it the kiss of death? 11 JAN 08
R1.1 News24.com: Landmark Judgment Hailed ZA 28 SEP 01
C2.1 SAFLII: Geldenhuys v. National Director of Public Prosecutions & Ors CCT 26/08) [2008] ZACC 21, 26 NOV 08
Aging, Bioethics, Health, MedicalLegislation/Cases/References
1.

National

On 20 May 2014, the South African National Blood Service unveiled a new blood donation policy favouring people in stable monogamous relationships for more than six months. All people - regardless of gender or sexual orientation - will be banned from giving blood for six months after having sex with a new partner, and anyone with multiple sexual partners will remains banned from doing so [R1.1].

R1.1 PinkNews: Gay blood ban lifted for monogamous couples 20 MAY 14
Assisted Reproduction Technology
Artificial Insemination, In Vitro Fertilisation, Surrogacy
Legislation/Cases/References
See also: [PARENTING]
1.

National

In November 1997, Health Minister Nkosazana Zuma announced changes to the Human Tissue Act, approving artificial insemination of single women, including lesbians [R1.1].

2.

Courts & Tribunals

On 29 November 2016, the Constitutional Court ruled that at least one parent must donate sperm or eggs for a surrogacy agreement to be legal in South Africa [C2.6], [R2.5].

On 26 March 2015, Judge D H Gush in the Labour Court of South Africa, Durban ruled that “M I A” was discriminated against by the State Information Technology Agency refusing to give him the full customary four months of paid leave, arguing that maternity leave applied only to women who had recently given birth. MIA was married in a civil union in 2010. He entered a surrogacy agreement a year later and applied for leave in anticipation of the birth of the child in 2012 [C2.4], [R2.3].

In March 2003, the Constitutional Court ruled that part of the law regarding the status of children is discriminatory and unconstitutional. The judgment deals with the status of children conceived by artificial insemination to same sex permanent life partners [R2.2].

Justice Goldstone said that a section of the Children's Status Acts permiting heterosexual married couples to both become the legal parents of children born through artificial insemination but not extending that same right to same-sex permanent partners was discrimination is based solely on the sexual orientation of the couple and cannot be justified.


In November 2002, the Durban High Court ruled that a local lesbian couple be recognised as their twins' parents [R2.1].

One partner was the genetic parent, having donated eggs, whilst the other partner was the birth mother [R2.1].

R1.1 Melbourne Star Observer: Insemination for All 14 NOV 97
2. Courts & Tribunals
C2.6 Judgment: AB and Another v Minister of Social Development [2016] ZACC 43 PDF 801.67kb 29 NOV 16
R2.5 HeraldLive: 'Surrogate cannot carry baby without the genes of one parent' - Infertile, single woman loses long court challenge 29 NOV 16
C2.4 Judgment: MIA v. State Information Technology Agency (Pty) Ltd (D 312/2012) [2015] ZALCD 20 PDF 351.50kb 26 MAR 15
R2.3 TheAge: South African gay father wins right to maternity pay
R2.2 SABC News: Court Says Law Discriminates Against Same-sex Partners 28 MAR 03
South African Press Association: Government Chided Over Gender Law 28 FEB 03
R2.1 Independent Online: Lesbian Couple Celebrate Legal Parenthood 07 NOV 02
Asylum, Immigration, Refugees Legislation/Cases/References
1.

Courts & Tribunals

On 02 December 1999, the Constitutional Court ruled that foreign partners of South African homosexuals and lesbians should enjoy the same protection as heterosexual couples [R1.3].

As a result foreign gays and lesbians involved in long-term relationships with South Africans are now able to apply for permanent residence.


In August 1999, the Constitutional Court reserved judgment in a case contesting the constitutionality of denying residency to gay foreigners in permanent relationships with South African partners [R1.2].


In February 1999, the Cape High Court ruled that lesbians and gay men and their immigrant partners should be free to live together as family, finding that the Aliens Control Act unfairly discriminates against lesbian and gay couples by denying them the same rights that married couples have under the Act [R1.1].

R1.3 BBC News: Equal benefits for SA gays 17 MAR 03
NCGLE: Constitutional Court Recognises Lesbian & Gay Relationships 02 DEC 99
R1.2 The Daily Mail & Guardian: Judgment on Gay Partners Reserved 18 AUG 99
R1.1 NCGLE: Cape High Court Recognises Lesbian and Gay Relationships 12 FEB 99
Censorship, Free SpeechLegislation/Cases/References
1.

Courts & Tribunals

On 03 June 2016, it was reported that the Advertising Standards Authority dismissed complaints about a We The Brave campaign advert encouraging gay men to practise safe sex. The complaint was made by two women and three men who ''expressed their discontent at the fact that same-sex relationships are being promoted on television without the possibility of shielding their children'' [C1.2], [R1.1].

C1.2 Ruling: We The Brave v. K Thompson & Others 2016 - 3151F HTML 26 MAY 16
R1.1 TimesLive: Two men kissing? No problem, says watchdog 03 JUN 16
Children: Access, Custody, Visitation Legislation/Cases/References
1.

Courts & Tribunals

In August 2000, in a landmark ruling, the Pretoria High Court [single judge] has ordered that a 17-year-old schoolgirl be removed from the care of her heterosexual father and placed in the care of her lesbian mother [R1.1].

In setting aside a 1993 order, Judge Eberhard Bertelsmann said he felt the ruling could have been unconstitutional in the light of the provisions of the Constitution that homosexuals may not be discriminated against and that such people may not be stigmatised.

R1.1 News 24.com: Landmark Ruling for Gays 13 AUG 00
Civil Unions, Partners: Domestic, Registered Legislation/Cases/References
See also: [INHERITANCE], [MARRIAGE], [PROPERTY]
1.

National

On 27 December 2015, YOU published an article setting out the legal rights of unmarried partners, registered relationships, Wills and death of a partner, registration requirements and answering important questions about civil unions [R1.6].

On 24 August 2006, South Africa was due to become Africa's first country to legalise gay partnerships following the government's approval yesterday of a bill on civil unions [R1.5].


In June 2003, gay couples and permanent partners became entitled to pensions from the government employee pension fund after changes to regulations which discriminated against them [R1.4].


In January 2002, same-sex partners of members of the South African National Defence Force (SANDF) were set to have the same benefits as the spouses of the country's soldiers, sailors and air force members [R1.3].

Regulations amending the definition of "marital status" and "spouse" to include partners in permanent life partnerships have been published in the Government Gazette.


On 21 September 2001, the draft Judicial Officers Amendment Bill to ensure that the benefits received by the spouses of deceased judges were also received by the partners of judges in permanent heterosexual or same sex relationships was tabled in parliament [R1.2].


In November 2000, Under the newly-passed Revenue Laws Amendment Bill, the Estate Duties Act redefines "spouse" to include "a permanent same-sex life relationship", giving gay and lesbian couples a spousal exemption from inheritance taxes. The change is retroactive to 27 April 1994 [R1.1].

2.

Courts & Tribunals

On 24 March 2011, the Supreme Court of Appeal in McDonald v. Young found that unmarried parties would be a need to have a written contract which laid out explicitly who had claims to what type of support, who owned the property and how, if at all it would be split if the happy home fell apart [C2.9], [R2.8].


In August 2003, the Appeal Court was to decide August 2003 on a unique case that a gay man from Pretoria instituted against the Road Accidents Fund, claiming for the loss of the financial support from his "spouse", who was negligently killed in a motorcycle accident [R2.7].


In September 2001, Judge Frans Kgomo ruled in favour of Johannesburg High Court Judge Cathy Satchwell who sought to have sections of the Judges Remuneration and Conditions of Employment Act and regulations in respect of transport, travelling and subsistence declared unconstitutional [R2.4].

In March 2003, the ruling was upheld by the full bench of the Constitutional Court [R2.6], [R2.5].

The right had already been established in private pensions by way of the decision of the Pension Funds Adjudicator in the matter of Martin v Beka Provident Fund and the Pension Funds Act of 1999 [R2.3].


In 1999, the Constitutional Court ruled that foreign partners of South African homosexuals and lesbians should enjoy the same protection as heterosexual couples [R2.6].

As a result foreign gays and lesbians involved in long-term relationships with South Africans are now able to apply for permanent residence.


In February 1998, the High Court ruled that an attempt by the police medical insurance scheme to refuse medical cover to the partner of a homosexual officer was illegal [R2.2].


In June 1997, Phillip van Rensburg was suing his wealthy lover, Hugo Ehlers, for half his fortune after their 13-year relationship terminated [R2.1].

R1.6 YOU: The legal rights of unmarried couples 27 DEC 15
R1.5 Financial Times: S Africa to Legalise Gay Partnerships 25 AUG 06
R1.4 News24.com: Gays to get govt pension 13 JUN 03
R1.3 Gayteway to South Africa: Queer Equality in South African Army 11 JAN 02
R1.2 South African Press Association: Breakthrough for Gay Judges 21 SEP 01
R1.1 PlanetOut: Tax Break for South African Gays 20 NOV 00
C2.9 Supreme Court of Appeal: Ian Leslie McDonald v. Lesley Judith Young (292/10) [2011] ZASCA 31 (24 MAR 2011)
R2.8 MoneyWeb: Court rules on cohabitation relationships 25 MAR 11
R2.7 News24.com: Gay 'Widow' Wants Thousands 08 AUG 03
R2.6 BBC News: Equal benefits for SA gays 17 MAR 03
R2.5 ABC News (Australia): South Africa's Highest Court Gives Gay Couples Financial Thumbs Up 26 JUL 02
R2.4 News24.com: Landmark Judgment Hailed 28 SEP 01
R2.3 EXIT: Lesbian Judges Seek Justice SEP 01
R2.2 Brother Sister: South Africa Supports Cop 19 FEB 98
R2.1 Capital Q: Divorce, South African Style 06 JUN 97
Discrimination Legislation/Cases/References
See also: [GENDER IDENTITY]
1.

National

On 26 January 2000, parliament passed a bill that bans discrimination based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age disability, religion, conscience, belief, culture, language and birth [R1.4].


In November 1999, the draft Promotion of Equality and Prevention of Unfair Discrimination Bill stirred controversy during a week of public hearings in parliament. The proposed legislation bans all forms of discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, science, belief, culture, language and birth. Equality courts will be set up and people accused of discrimination will have to prove their innocence [R1.3].


On 11 December 1996, President Nelson Mandela singed the new Constitution into law. The Constitution is regarded as one of the most liberal in the world and by Chapter 2 - Bill of Rights specifically decrees that "The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation (emphasis added), age, disability, religion, conscience, belief, culture, language, and birth" [R1.2].


Effective 08 May 1996, the South African Bill of Rights protects lesbians, gay men and bisexual people from discrimination by both the State and private sector [R1.1].

2.

Courts & Tribunals

On 13 March 2017, Seshego Equality Court in Limpopo reportedly ruled that a high school principal had made hurtful and harmful speech remarks towards a transgender learner in contravention of Section 10 of the Equality Act. The court will make a decision on the relief sought on Friday [R2.9].

On 26 January 2017, it was reported that Mia Agrela and her partner were taking the Lake Restaurant in Brakpan to the Equality Court for violating their right by refusing to accommodate them. The couple booked for date night late last year and after paying the admission fee, they were shocked to receive an SMS saying no same-sex couples are allowed to take part in the romantic evening which promised candle light, a seven-course meal and live performance. The admission fee was refunded however the couple are challenging the restaruant's policy as discriminatory [R2.8].

On 24 November 2015, in dismissing the appeal of former church minister Ecclesia de Lange seeking to set aside an arbitration agreement with the Methodist Church of Southern Africa that followed her suspension and and discontinuance as an active minister in 2010, for breaching church policy, after announcing her intended marriage to her then same-sex partner, the Constitutional Court ruled she had not shown good cause to set the arbitration agreement aside. It also ruled that she was not free to raise the claim of unfair discrimination for the first time on appeal [C2.7], [R2.6].

On 16 April 2015, the Equality Court ruled that LGBTI people cannot be discriminated against in public services. Neil Coulson and his husband Jonathan Sedgwick had tried to get a room at the Wolseley guesthouse in Cape Town in November 2013 however, owners Marina and Seth Neethling told them the establishment was not 'gay friendly' [R2.5].

On 26 March 2015, Judge D H Gush in the Labour Court of South Africa, Durban ruled that “M I A” was discriminated against by the State Information Technology Agency refusing to give him the full customary four months of paid leave, arguing that maternity leave applied only to women who had recently given birth. MIA was married in a civil union in 2010. He entered a surrogacy agreement a year later and applied for leave in anticipation of the birth of the child in 2012 [C2.4], [R2.3].

On 29 September 2014, the Supreme Court of Appeal of South Africa dismissed the appeal of Reverend Ecclesia de Lange against her being “discontinued” after announcing her same-sex marriage from the pulpit. The Court said that a proper respect for freedom of religion precludes our courts from pronouncing on matters of religious doctrine, which fall within the exclusive realm of the Church [C2.2], [R2.1].

R1.4 Capital Q: South Africa Bans Discrimination 04 FEB 00
R1.3 The Daily Mail & Guardian: Equality Bill Stirs Controversy 26 NOV 99
R1.2 GayLawNet: Constitution Protects Gays 12 DEC 96
R1.1 Adelaide Gay Times: Historic South African Bill of Rights Includes Sexual Orientation 10 MAY 96
R2.9 TimesLive: School principal violated the rights of transgender learner‚ says Equality Court 13 MAR 17
R2.8 EyewitnessNews: Same-sex couple takes Lake Restaurant to Equality Court 26 JAN 17
C2.7 Judgment: Ecclesia de Lange v. Presiding Bishop of the Methodist Church No. [2015] ZACC 24 PDF 305.53kb, 24 NOV 15
R2.6 news24: Constitutional Court dismisses appeal by gay ex-pastor 24 NOV 15
R2.5 GayStarNews: Gay couple who were denied room from Christian guesthouse owners win case 17 APR 15
C2.4 Judgment: MIA v. State Information Technology Agency (Pty) Ltd (D 312/2012) [2015] ZALCD 20 PDF 351.50kb 26 MAR 15
R2.3 TheAge: South African gay father wins right to maternity pay
C2.2 Judgment: Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa No. 726/13 PDF 463.20kb, 29 SEP 14
R2.1 ioLnews: Court rules against ousted gay pastor 01 OCT 14

GayLawNet®™ "Exclusive" Sponsorship of this page IS available
Estates, Inheritance, Property, Succession, Wills Legislation/Cases/References
1.

Courts & Tribunals

On 30 November 2016, the Constitutional Court preserved the right of unmarried permanent gay couples to inheritance, ruling that Eric Duplan was right to claim the intestate estate (no Will) of his deceased live-in partner Cornelius Daniel Laubscher [C1.11], [R1.10].

On 04 November 2016, Judge of Appeal X M Petse for the Supreme Court of Appeal ordered that the divorcing parties Galefele Hilda Ndaba and James Ndaba have a mutual right to their respective pension interests as part of settling property matters between them. Same-sex marriage being lawful, this opposite-sex divorce case may have relevance to same-sex partners divorcing in similar circumstances [C1.9], [R1.8].

On 18 August 2016, the Constitutional Court was reported to be considering the matter of Laubscher N.O v Duplan and Another concerning ''intestate succession in the case of a same-sex partnership''. Duplan was in a same-sex partnership with the deceased from 2003 and the partners had undertaken reciprocal duties of support however, the partnership was never solemnised and registered in terms of the Civil Union Act 17 of 2006, it being contended that the Act displaced the decision in Gory [R1.7].

On 23 November 2006, the Consitutional Court upheld the finding of the Pretoria High Court in Mark Gory v. Daniel Gerhardus Kolver No declaring section 1(1) of the Intestate Succession Act 81 of 1987 (the Act) to be unconstitutional in so far as it does not provide for a permanent same-sex life partner to inherit automatically, as a spouse would, when the other partner dies without a will, reading in after the word ''spouse'', wherever it appears in that section, of the words ''or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support'' [C1.6].

In October 2006, subject to confirmation by the Constitutional Court, the High Court of South Africa ruled that the Intestate Succession Act No 81 of 1987 was inconsistent with the Constitution and that an extension of the definition of the word 'spouse' should be broadened to include the words "or partner in the permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support" [C1.5], [R1.4].


In August 2002, the Constitutional Court ruled the government's failure to include same-sex partners in benefits to surviving spouses violates the constitution [R1.3].


In September 2001, the Lesbian and Gay Equality Project was suing state pension funds for the right to claim pensions from deceased same-sex partners [R1.2].


In October 1998, Pension Funds Adjudicator John Murphy ordered a South African pension fund to pay death benefits to a Cape Town homosexual man following the death of his partner [R1.1].

C1.11 Order and Judgment: Rasmus Elardus Erasmus Laubschern N.O. v. Eric Jean Spiridion Duplan et al. [2016] ZACC 44 PDF 410.02kb 30 NOV 16
R1.10 SABCnews: Court rules unmarried gay couples can inherit 30 NOV 16
C1.9 Judgment: Ndaba v Ndaba No. 600/2015, [2016] ZASCA 162 PDF 471.92kb 04 NOV 16
R1.8 IOL: Court rules that exes must share pensions 08 NOV 16
R1.7 TimesLive: ConCourt to tackly inheritance rights of same-sex partners 18 AUG 16
C1.6 Judgment: Mark Gory v. Daniel Gerhardus Kolver No & Ors CCT 28/06 PDF 265.02kb 23 NOV 06
C1.5 Mark Gory vs Kolver, N.O. and Others (Case No. 4928/2005)
R1.4 Exit: Landmark Judgement Regarding Intestate Succession In Same-sex Relationships 19 OCT 06
R1.3 Melbourne Community Voice: Partner Benefits in South Africa 08 AUG 02
R1.2 BnewS: South African Pensions Fight 27 SEP 00
R1.1 Cape Argus: Triumph for Same-Sex Unions 31 OCT 98
Gender Identity, Intersex,
Transgender, Transexual

[?]
Legislation/Cases/References
1.

National

In July 2004, the Gay and Lesbian Alliance banned cross dressers and transvestites from their membership [R1.4].


In September 2003, the South African government passed legislation amending the Birth and Death Registration Act to allow the transgendered to correct their sex as entered in the official register [R1.3].

The bill will now go to the national council of provinces for concurrence.

The [Alteration of Sex Description and Sexual Status] Bill when approved, will allow individuals to change their sex status in the population register [R1.2].

In December 1999, a Bill was introduced to Parliament that would allow anybody who has had a sex change through surgical and medical treatment to apply to the director-general of home affairs to have the birth register changed [R1.1].

2.

Courts & Tribunals

On 13 March 2017, Seshego Equality Court in Limpopo reportedly ruled that a high school principal had made hurtful and harmful speech remarks towards a transgender learner in contravention of Section 10 of the Equality Act. The court will make a decision on the relief sought on Friday [R2.1].

R1.4 MCV: Transvestites Banned 02 JUL 04
R1.3 365Gay.com: South Africa Passes TG Identity Bill 29 SEP 03
R1.2 News24.com: Cabinet faces Sexual Status Bill 01 MAR 03
R1.1 The Cape Argus: Sex Change 'Reality' Tackled by New Law 13 DEC 99
R2.1 TimesLive: School principal violated the rights of transgender learner‚ says Equality Court 13 MAR 17
HIV Aids Legislation/Cases/References
1.

National

In November 2009, South Africa's cabinet approved a new policy allowing the national defense force to selectively recruit and deploy soldiers who are HIV-positive [R1.2].

In February 2003, the Law Commission recommended that "Intentional nondisclosure by a person that he or she is infected by a life-threatening sexually transmissible infection ... prior to sexual relations with another consenting person would constitute rape" [R1.1].

The Commission also recommended broadening the definition of rape so that men could be considered rape victims if their sex partners do not disclose that they are infected with HIV.

There was no report as to if or when government officials would act on the recommendations.

2.

Courts & Tribunals

On 03 June 2016, it was reported that the Advertising Standards Authority dismissed complaints about a We The Brave campaign advert encouraging gay men to practise safe sex. The complaint was made by two women and three men who ''expressed their discontent at the fact that same-sex relationships are being promoted on television without the possibility of shielding their children'' [C2.4], [R2.3].

In January 2009, an openly gay man living with HIV was appointed to the Constitutional Court of South Africa [R2.2].


In March 2000, the South African Human Rights Commission ruled gay men have a constitutional right to donate blood [R2.1].

R1.2 HIVPLUSmag.com: Victory for Soldiers With HIV 12 NOV 09
R1.1 The Advocate: South Africa Considers New HIV Laws 12 FEB 03
C2.4 Ruling: We The Brave v. K Thompson & Others 2016 - 3151F HTML 26 MAY 16
R2.3 TimesLive: Two men kissing? No problem, says watchdog 03 JUN 16
R2.2 PinkNews.co.uk: HIV+ Judge Appointed to South Africa's Highest Court 05 JAN 09
R2.1 Associated Press: South African Gays Can Donate Blood 24 MAR 00
Homosexuality, Sodomy Legislation/Cases/References
1.

National

Consensual sex between same-sex couples is lawful [R1.2].


In December 2004, the Dutch Reformed Church apologised officially to the country's gay community for its homophobic behaviour over many years [R1.1].

2.

Courts & Tribunals

On 09 October 1998, the Constitutional Court declared the law banning sexual activities between men unconstitutional [R2.4].


On 08 May 1998, the High Court said the common-law crimes of sodomy and unnatural sexual offences and Section 20A of the Sexual Offences Act ("two men at a party") violated the nation's post-apartheid constitution [R2.3]. The ruling covers only Gauteng province in which Johannesburg is located


In November 1997, National Coalition for Gay and Lesbian Equality and the Human Rights Commission presented their case against the nation's sodomy laws before the Rand Supreme Court [R2.2].


In August 1997, the High Court of South Africa's Capetown province legalised gay sex [R2.1].

R1.2 ILGA: Annual Reports - Part II 1996
R1.1 MCV: Church Apologises 10 DEC 04
R2.4 ILGA: State-Sponsored Homophobia PDF 109.64kb, NOV 08
Associated Press: South Africa Court Upholds Gay Rights 09 OCT 98
R2.3 Capital Q: High Court Strikes Down Sex Bans 15 MAY 98
R2.2 Capital Q: Sex Ban Heads for Court 21 NOV 97
R2.1 IGLHRC: 1997 Year in Review 02 JAN 98
Melbourne Star Observer: Capetown Legalises Gay Sex 15 AUG 97
Marriage Legislation/Cases/References
1.

National

In November 2006, the National Assembly passed the Civil Union Bill 230–41 that provides for the "voluntary union of two persons, which is solemnized and registered by either a marriage or civil union." It does not specify whether they are heterosexual or homosexual partnerships. It then had to go to the National Council of Provinces [R1.4].


In December 2005, the South African Law Reform Commission was proposing the legalization of same-sex marriage [R1.3]. The commission said that while it preferred marriage rights for same-sex couples, domestic partnerships would accomplish many of the same things. Public comment was then invited.


In August 2003, same-sex couples could eventually be able to marry if the public endorses proposals of the SA Law Reform Commission [R1.2].


On 20 December 1997, the African National Congress passed a wide-ranging resolution on gay and lesbian equality that included a call for legalisation of same-sex marriage [R1.1].

2.

Courts & Tribunals

On 04 November 2016, Judge of Appeal X M Petse for the Supreme Court of Appeal ordered that the divorcing parties Galefele Hilda Ndaba and James Ndaba have a mutual right to their respective pension interests as part of settling property matters between them. Same-sex marriage being lawful, this opposite-sex divorce case may have relevance to same-sex partners divorcing in similar circumstances [C2.9], [R2.8].

On 26 March 2015, Judge D H Gush in the Labour Court of South Africa, Durban ruled that “M I A” was discriminated against by the State Information Technology Agency refusing to give him the full customary four months of paid leave, arguing that maternity leave applied only to women who had recently given birth. MIA was married in a civil union in 2010. He entered a surrogacy agreement a year later and applied for leave in anticipation of the birth of the child in 2012 [C2.7], [R2.6].

On 01 December 2005, South Africa's highest court, the Constitutional Court, ruled in favour of same-sex marriages – which were banned under then current legislation – ordering that parliament amend marriage laws to allow gay weddings within a year [C2.5], [R2.4].

Previously:

In December 2004, the Supreme Court of Appeal, one of South Africa's highest courts, ruled that the official definition of marriage should be expanded to include gay partnerships [R2.3]. The ruling was subject to confirmation by South Africa's Constitutional Court - its highest court - if gay marriages are to be permitted officially.

Background

In October 2002, the Pretoria High Court dismissed an application to legalise gay marriages [R2.2].

The application was dismissed primarily as a result of the manner in which the Notice of Motion was drafted.

In July 2003, the Constitutional Court dismissed an application to appeal the decision directly to the Court, saying in its judgment that the couple's appeal raised important questions relating to South Africa's common law, which should first be considered and determined by the Supreme Court of Appeal [R2.1].

R1.4 CNN: South Africa bill approves same-sex marriage 14 NOV 06
R1.3 365Gay.com: South Africa To Have Gay Weddings 01 DEC 05
R1.2 365Gay.com: SA Advised To Recognize Gay Marriage 05 SEP 03
The Star: Same-sex Unions Could Get the Nod 29 AUG 03
R1.1 Melbourne Star Observer: ANC Calls for Gay Marriage 09 JAN 98
2. Courts & Tribunals
C2.9 Judgment: Ndaba v Ndaba No. 600/2015, [2016] ZASCA 162 PDF 471.92kb 04 NOV 16
R2.8 IOL: Court rules that exes must share pensions 08 NOV 16
C2.7 Judgment: MIA v. State Information Technology Agency (Pty) Ltd (D 312/2012) [2015] ZALCD 20 PDF 351.50kb 26 MAR 15
R2.6 TheAge: South African gay father wins right to maternity pay
C2.5 SAFLii: Minister of Home Affairs & Anor v. Fourie & Anor [2005] ZACC 19, 01 DEC 05
R2.4 BBC News: Court Ruling Recognises Gay Marriages 02 DEC 04
R2.3 The Age: Court Ruling Recognises Gay Marriages 02 DEC 04
R2.2 News24.com: Pretoria High Court Dismisses Same-sex Marriage Application 18 OCT 02
R2.1 News24.com: Court Dismisses Application by Lesbian Couple 31 JUL 03
Military Legislation/Cases/References
1.

National

In November 2009, South Africa's cabinet approved a new policy allowing the national defense force to selectively recruit and deploy soldiers who are HIV-positive [R1.3].

In January 2002, same-sex partners of members of the South African National Defence Force (SANDF) were set to have the same benefits as the spouses of the country's soldiers, sailors and air force members [R1.2].

Regulations amending the definition of "marital status" and "spouse" to include partners in permanent life partnerships were been published in the Government Gazette.


In May 1996, after the formal adoption of the interim constitution in South Africa that bans discrimination against gay people, the parliament legislated a defence policy that entrenches civilian control and bars discrimination against women and gay soldiers [R1.1].

R1.3 HIVPLUSmag.com: Victory for Soldiers With HIV 12 NOV 09
R1.2 Gayteway to South Africa: Queer Equality in South African Army 11 JAN 02
R1.1 Brother Sister: South Africa Defence Policy 30 MAY 96
Parenting: Adoption, Fostering Legislation/Cases/References
1.

Courts & Tribunals

In August 2012, Judge Bill Prinsloo in the Pretoria High Court ordered the Meyerton Children's Court to consider the adoption of "C" in light of an expert report after a magistrate said he was disinclined to grant the adoption, questioning a married male couple as to their suitability for the adoption, because of their sexuality [R1.7].

On 26 April 2012, Acting Judge Nalini Gangen in the West Cape High Court was reported to have ruled that a separated same-sex couple who had a child conceived via artificial insemination were “both mothers” holding full parental responsibilities and they had to enter into a parental plan [C1.6], [R1.5].

On 10 September 2002, the South African Constitutional Court ruled that people in "permanent same-sex life partnerships" should be allowed to adopt because "such relationships could provide the care and support children needed" [R1.4].

The Court declared that sections of the Child Care Act and Guardianship Act prohibiting adoption by gay couples were unconstitutional because they did not make the interest of children paramount [R1.3].

In May 2002, the Constitutional Court reserved judgment on whether the Pretoria High Court was right to declare certain sections of legislation on adoption "unconstitutional and invalid" [R1.3], [R1.2].


In November 1999, a single gay man has finally been allowed to adopt a child after a four-year battle [R1.1].

R1.7 Independent Online: It's because we're gay 01 SEP 12
C1.6 SAFLII: CM and NG 8026/2011 [2012] ZAWCHC 37 PDF 941.64kb, 26 APR 12
R1.5 IOL: Victory for lesbian mom 30 APR 12
R1.4 ABC News Online: South African Court Rules Homosexual Couples Can Adopt Children 10 SEP 02
R1.3 News24.com: Landmark Judgment Hailed 28 SEP 01
R1.2 South African Press Association: Gay adoption: Judgment reserved 09 MAY 02
R1.1 The Mail & Guardian: Gay Father Adopts His Cinderella 26 NOV 99
Wrongful Death Legislation/Cases/References
1.

Courts & Tribunals

In September 2003, Appeal Judge Tom Cloete in the Supreme Court of Appeal at Bloemfontein ordered the Road Accident Fund today to compensate a gay man in damages he suffered as a result of his partner being killed [R1.1].

In August 2003, the Appeal Court was to decide later that month on a unique case that a gay man from Pretoria instituted against the Road Accidents Fund (RAF) for the loss of the financial support from his "spouse" [R1.2].

R1.1 SABC News: Gay Man Scores Victory in Appeal Court 19 SEP 03
R1.2 News24.com: Gay 'Widow' Wants Thousands 07 AUG 03

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