South Africa: Government appeals against historical ruling for gays lesbians

By S. Predrag, ivan@harare.iafrica.com

Harare, March 5, 1999 -- The government of South African President Nelson Mandela is considering an appeal against a recent High Court judgment allowing non-South African citizens who are partners of South African citizens of the same sex to get permanent residence.

Government Communications and Information Service Head, Joel Netshitenzhe, said that authorities in Pretoria believe this would amount to discrimination against heterosexual couples, "as they do not enjoy the same rights."

The appeal came just weeks after a historical ruling by the High Court in Cape Town that the Aliens Control Act discriminates unfairly against lesbian and gay couples.

Until now, immigration rules have denied gay and lesbian couples in South Africa the same rights as heterosexual married couples who were allowed to live and work in the country.

It was widely believed that according to this ruling, and, pending a final decision by the Constitutional Court, gays and lesbians and their immigrating partners would be able to live in South Africa with the same rights as heterosexual couples.

"The Constitution seeks to promote a society in which diversity of identity is respected and protected. The Act prefers certain forms of life partnership over others... this cannot be justified," ruled Judge Dennis Davis.

Judge Davis used this opportunity to demand that the Department of Home Affairs "treats the applicants (gays and lesbians) with the same concern and respect due to married persons."

"This court cannot condone the disdain with which the respondents have treated their obligations to this court," he said, adding that the behaviour of the immigration officials was tardy and uncaring.

This case is the result of a dispute between the South African Gay and Lesbian Coalition and the Department of Home Affairs over the status of same-sex couples. It started in December of last year when six homosexual couples and the Coalition and the Commission on Gender Equality asked the court to extend immigration rights to lesbian and gay couples, claiming that the discrimination was against the Constitution.

The Cape High Court recently established yet another precedent in South Africa by ruling in favor of Franck Joly, a 20-year-old Paris business school graduate, who was finally allowed to join his partner, Hilton Kaplan, a 32-year-old Cape Town plastic surgeon.

Three High Court judges declared deportation orders against gays illegal, and Section 28 of the Aliens Control Act unconstitutional.

It was a historic ruling, allowing the foreign partners of South Africans to settle in this country whose immigration laws discriminated against same-sex couples.

Joly was recently barred from entering South Africa and was even detained in a solitary cell at Cape Town International Airport.

South African immigration authorities threatened Joly with deportation and asked him to pay a 3000 South African Rand repatriation deposit (around 500 US dollars).

However, the National Coalition for Gay and Lesbian Equality (NCGLE) made an urgent application to have the Aliens Control Act declared unconstitutional.

Judge Dennis Davis and two other judges of the High Court in Cape Town allowed Franck Joly to enter South Africa and the respondents - the Minister of Home Affairs, the Director General of Home Affairs and the Regional Department of Home Affairs were ordered to pay the costs of the application.

Last year, in Cape Town, a number of South African gay and lesbian partners, including Kaplan and Joly, gave evidence to Parliament's portfolio committee on home affairs, pleading for the Aliens Control Act to be changed. They specifically asked that same-sex and unmarried couples in a committed relationship should be given the same status as spouses.

"For these couples," stated the South African influential daily, The Star, "the possibility of making a home in South Africa and evading the chilling threat of deportation could lie in changing the meaning of a single word."

Namely, the NCGLE insisted that the term "partner" should be included to signify those people who could get an immigration and residence permit.

Taught by their earlier battles with the authorities, the NCGLE this time specified that "partner" should mean "a person irrespective of sex, permanently and lawfully resident in the Republic, living together or intending to live together in an intimate and committed domestic partnership."

Their intention was to leave no legal loopholes which would allow for discrimination against homosexuals. They had already had a negative experience in 1998 with Albert Mokoena, the Director-General of Home Affairs, who had stated under oath that he would exempt couples from section 28 of the Aliens Control Act.

During the hearings, last December, the Home Affairs Director-General had promised to treat both lesbian and gay applicants with dignity and due consideration.

However, just weeks after that, Franck Jolly was detained at Cape Town airport and asked to pay a deportation fee.

It is a well-known fact that tens of thousands of Mozambicans, Zimbabweans and other nationals are deported each year from South Africa, but it appears that only gays and lesbians are asked to pay a deportation fee.

Immigration officials attempted to explain the inconsistency, hiding behind the rule that it is at their discretion to decide who will pay the deportation fee.

But, such an explanation evidently did not impress the three High Court judges in Cape Town and, of course, Zackie Achmat of the National Coalition for Gay and Lesbian Equality, who described their ruling as a historic precedent for South Africa.

Another precedent was set last year by Judge JP Roux who ruled that police regulations excluding gay and lesbian officers from registering their partners with Polmed (medical aid) were unconstitutional.

In his ruling, the judge Roux said that it was time for South African law to recognise committed gay and lesbian relationships as being no different from those of married couples.

The ruling came after a lesbian police officer in Pretoria filed a lawsuit in the High Court against the police medical aid society, Polmed, for refusing to register her female partner as a dependant.

South Africa is still the only country in Africa whose constitutional court recently declared consensual sexual intercourse between members of the same sex as no longer unlawful, underlining that a person may not be discriminated against on the ground of his or her sexual orientation.

It is no accident that these rulings were made possible in Cape Town, one of the most beautiful cities in the world, which has already been dubbed "the gay capital of Africa."

However, the government's appeal against the judgment of the High Court seems to signal that the gays and lesbians of South Africa have won the battle, but the war with South African bureaucracy still continues. 

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