The National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (1999)

Case Title & Citation  

• Full name of the case: The National Coalition for Gay and Lesbian Equality and  Others v Minister of Home Affairs and Others (1999) 
• Official citation: National Coalition for Gay and Lesbian Equality and Others v  Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1  (CC); 2000 (1) BCLR 39 (CC) (2 December 1999) 

Court Name and Bench 

• Name of the Court: Constitutional Court of South Africa 
• Name of Judges: Chaskalson P, Langa DP, Goldstone J, Madala J, Mokgoro J,  Ngcobo J, O’Regan J, Sachs J, Yacoob J and Cameron AJ 
• Bech Type: Constitutional Bench 

Date of Judgement 

• 2 December 1999 

Parties Involved  

• Petitioners / Appellants: The National Coalition for Gay and Lesbian Equality, Sven  Patrik Alberding, Fiona Jane Liebe Saunders Watson, Malcom Clive North, Franck  Andre Charles Joly, Linda Aoudia, Argyris Sotiris Argyrou, Clint Lewis Tatchell,  Lucinda Slingsby, Steven Mark Le Grange, Hilton Marc Kaplan, Christine  Hazebroucq, Jacobus Johannes De Wet Styn and the Commission for Gender Equality  are the petitioners/appellants in the case. They appealed to the Constitutional Court of  South Africa under the provisions of section 172(2)(d) of the Constitution. They  challenged the constitutionality of section 25(5) of the Aliens Control Act 96 of 1991. 
• Respondents / Defendants: The Minister of Home Affairs, the Deputy Minister of  Home Affairs and the Director-General of Home Affairs are the 

respondents/defendants in the case. They argued against the appeal to allow gay and  lesbian foreign nationals who are in homosexual relationships with permanent South  African residents the ability to apply for an immigration permit.

Facts of the Case 

The foreign national spouse of a permanent South African resident was provided with a favourable treatment whilst applying for an immigration permit under section 25(5) of the  Aliens Control Act 96 of 1991. However, foreign national who had a homosexual relationship  with a permanent South African resident was not permitted to apply for an immigration  permit meanwhile, in addition to that, the foreign national was comparable to a “spouse”. The  petitioners/appellants challenged the constitutionality of section 25(5) of the Aliens Control  Act 96 of 1991. The National Coalition for Gay and Lesbian Equality argued that section  25(5) of the Aliens Control Act 96 of 1991 discriminated unfairly against gay and lesbian  people and violated their rights to equality under section 9 of the Constitution of the Republic  of South Africa and their rights to dignity under section 10 of the Constitution of the Republic of South Africa. The Court only tackled the position of permanent South African gay and  lesbian people who have foreign national spouses in this case, excluding heterosexual couples. It was necessary for the Court to consider the constitutionality of section 25(5) of the  Aliens Control Act 96 of 1991 because it rejected the argument that the word “spouses”  included gay and lesbian foreign nationals who are in a homosexual relationship with  permanent South African residents. The Court held that section 25(5) of the Aliens Control  Act 96 of 1991 reinforced harmful stereotypes for people who are gay and lesbian. This  indicated that gay and lesbian people immanent humanity to have their families and family  lives in homosexual relationships protected or respected. The Court held that the exclusion of  gay and lesbian couples who are in permanent homosexual relationships from section 25(5)  of the Aliens Control Act was inconsistent with the Constitution of the Republic of South  Africa. The Court found the limitation of section 25(5) of the Aliens Control Act 96 of 1991  to be unreasonable and unjustifiable within an open and democratic society in accordance on  the basis of human dignity, equality and freedom. The Court considered the remedy of the  constitutionality of section 25(5) of the Aliens Control Act 96 of 1991 by declaring the entire  section 25(5) of the Aliens Control Act 96 of 1991 to curing the inconsistency of the section  with the Constitution of the Republic of South Africa by reading words into it. The Court  decided that the words, “or partner in a permanent same-sex life partnership” must be added  into the section to be inclusive of gay and lesbian couples.

Issues Raised 

• The constitutionality of section 25(5) of the Aliens Control Act 96 of 1991 • Does section 25(5) of the Aliens Control Act 96 of 1991 discriminate against permanent gay and lesbian couples unfairly and unconstitutionally by not granting  them the same benefits as the couples who as identified as “spouses”? 
• If the provisions in section 25(5) of the Aliens Control Act 96 of 1991 are declared  unconstitutional, will the court insert words into the Aliens Control Act 96 of 1991 to  remedy the unconstitutionality of section 25(5) of the Aliens Control Act 96 of 1991? 

Arguments of the Parties 

• Key Contentions by the Petitioners / Appellants: The National Coalition for Gay  and Lesbian Equality and other petitioners/appellants challenged the constitutionality  of section 25(5) of the Aliens Control Act 96 of 1991. The National Coalition for Gay  and Lesbian Equality argued that section 25(5) of the Aliens Control Act 96 of 1991  discriminated unfairly against gay and lesbian people and violated their rights to  equality under section 9 of the Constitution of the Republic of South Africa and their  rights to dignity under section 10 of the Constitution of the Republic of South Africa. They argued that the section discriminated based on martial status and sexual  orientation. They argued that the section reinforced harmful stereotypes about gay and  lesbian people; that they are considered inferior to heterosexual couples.  
• Key Contentions by the Respondents / Defendants: The Minister of Home Affairs  and other respondents/defendants argued against allowing gay and lesbian foreign  nationals who are in homosexual relationships with permanent South African  residents the ability to apply for an immigration permit. They argued that the word  “spouse” on section 25(5) of the Aliens Control Act 96 of 1991 only referred to  heterosexual couples and that the provision was not discriminating against gay and  lesbian couples. 

Judgement / Final Decision 

The Court held that section 25(5) of the Aliens Control Act 96 of 1991 reinforced harmful  stereotypes for people who are gay and lesbian. This indicated that gay and lesbian people immanent humanity to have their families and family lives in homosexual relationships  protected or respected. The Court held that the exclusion of gay and lesbian couples who are  in permanent homosexual relationships from section 25(5) of the Aliens Control Act was  inconsistent with the Constitution of the Republic of South Africa. The Court found the  limitation of section 25(5) of the Aliens Control Act 96 of 1991 to be unreasonable and  unjustifiable within an open and democratic society in accordance on the basis of human  dignity, equality and freedom. The Court considered the remedy of the constitutionality of  section 25(5) of the Aliens Control Act 96 of 1991 by declaring the entire section 25(5) of the  Aliens Control Act 96 of 1991 to curing the inconsistency of the section with the Constitution  of the Republic of South Africa by reading words into it. The Court decided that the words,  “or partner in a permanent same-sex life partnership” must be added into the section to be  inclusive of gay and lesbian couples. 

Legal Reasoning / Ratio Decidendi  

The judgement of the Court was delivered by Justice Ackermann. The Court found that  section 25(5) of the Aliens Control Act 96 of 1991 discriminated unfairly based on marital  status and orientation by being beneficial to only heterosexual couples. Section 25(5) of the  Aliens Control Act 96 of 1991 violated the rights to equality under section 9 of the  Constitution of the Republic of South Africa and the rights to dignity under section 10 of the  Constitution of the Republic of South Africa for gay and lesbian people. The decision of the  Court was influenced by previous decisions that were made in the Republic of South Africa,  and the comparative jurisprudence from Canada, the United States and the United Kingdom,  such as Braschi v Stahl Associates Company (1989), Fitzpatrick (A.P.) v Sterling Housing  Associates Ltd (1999), and M v H (1999). Domestic law such as the National Coalition for  Gay and Lesbian Equality v Minister of Justice (1998) was considered in the Court’s  decision.

Conclusion / Observations 

Impact and Significance of the Case 

The case allowed foreign national gay and lesbian spouses of permanent South African  residents to apply for immigration permits. It recognized and validated the Constitutional  rights to equality and human dignity for gay and lesbian people. The case solidified LGBTQ+  rights. It was the first time in South Africa whereby the Cour used “reading in” to add words  in a provision. The case eliminated harmful stereotypes about gay and lesbian people and  reinforced that gay and lesbian people, and their families deserve to be protected and  respected. It reinforced the fact that gay and lesbian people are not inferior to heterosexual people. The Court’s decision was considered in future precedents to extend legal benefits for  the LGBTQ+ community and played a role in legalising same-sex marriages in the case of  the Minister of Home Affairs v Fourie (2005).  

Critical Reflection 

The National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs  and Others was a victory for the LGBTQ+ community. It paved the way for same-sex  marriages to be legalised in the case of the Minister of Home Affairs v Fourie (2005). It is  landmark case that transformed the legal landscape for the LGBTQ+ community. 

Reference(S):

Primary sources 

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and  Others (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (2  December 1999) 

Section 172(2)(d) of the Constitution of the Republic of South Africa 

Section 9 of the Constitution of the Republic of South Africa 

Section 10 of the Constitution of the Republic of South Africa 

Section 25(5) of the Aliens Control Act 96 of 1991 

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and  Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October  1998) 

Braschi v Stahl Associates Company (1989) 

Fitzpatrick (A.P.) v Sterling Housing Associates Ltd (1999) 

M v H (1999) 

Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19;  2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) 

Secondary sources 

Unknown, “National Coalition for Gay and Lesbian Equality v. Minister for Home Affairs,  Constitutional Court of South Africa (2 December 1999)” (ICJ, 2 Dec ember 1999) < https://www.icj.org/sogicasebook/national-coalition-for-gay-and-lesbian-equality-v-minister for-home-affairs-constitutional-court-of-south-africa-2-december-1999/> accessed 22  December 2025