J and B v Director General, Department of Home Affairs and Others

Case Citation and Basic Information

Case Name: J and B v Director General, Department of Home Affairs and Others

Citation: Case CCT 46/02; [2003] ZACC 3; 2003 (5) SA 621 (CC); 2003 (5) BCLR 463 (CC).

Court: Constitutional Court of South Africa.

Dates: Heard 27 February 2003; decided 28 March 2003.

Bench: Goldstone J, with Chaskalson CJ, Langa DCJ, Ackermann J, Madala J, Mokgoro J, Moseneke J, O’Regan J and Yacoob J concurring.

Parties: J (First Applicant) and B (Second Applicant) v Director General: Department of Home Affairs (First Respondent), Minister of Home Affairs (Second Respondent), President of the Republic of South Africa (Third Respondent).

Introduction

This case is one in a sequence of early 2000s Constitutional Court judgements extending recognition to same-sex permanent life partnerships. It follows the important cases of National Coalition for Gay and Lesbian Equality v Minister of Home Affairs¹, Satchwell v President of the Republic of South Africa² and Du Toit v Minister of Welfare and Population Development³. This particular case is also significant because it dealt with a same-sex partnership in relation to a child born through artificial insemination, an aspect not explicitly foreseen when the Children’s Status Act 53 of 1987 (‘the Act’) was framed exclusively within the context of a heterosexual married relationship. The judgement confirmed that laws regulating parentage and legitimacy that excluded same-sex permanent life partnerships constituted unfair discrimination on grounds of sexual orientation, and further, demonstrates the Court’s approach to the remedies of severance and reading-in.

Facts of the Case

The applicants to the case, styled J and B in order to protect the identities of their two children, had entered into a same-sex life partnership in 1995 and remained living together since that date. In August 2001, B conceived and bore twins as a result of artificial insemination with donor sperm donated by a single anonymous donor and donated eggs contributed by J. Because B had carried and given birth to the children, the Births and Deaths Registration Act made provision to register her as their mother.⁴ However, regulation as far as parent registration went, only allowed registration of the male and female of each pair; the Act, only allowed children to be deemed legitimate of the married woman and her spouse if they were conceived of artificial insemination in a married relationship.⁵

When J’s attempts at being listed as a parent in the Children’s Act registers proved futile, the applicants took their complaint to the Durban High Court, arguing for interdictory relief compelling the Director General to record their two children as parents on the birth certificates, as well as compelling the Minister to review registration procedures and declaring section 5 of the Act unconstitutional. This was successful at High Court level with Magid J (sitting for the Durban High Court) granting curative relief to section 5 of the Act through a process of ‘severing’ ‘married’ and reading in ‘or permanent same-sex life partner.’ The Constitutional Court however,⁶ is obliged to confirm any order of invalidity of an Act of Parliament and hence this case came before it for confirmation.

Legal Issues

The Constitutional Court identified the following three issues as being open for consideration:

1. Did the High Court’s decision that section 5 was invalidity, coupled with the order of severance and reading-in as a remedial solution should be upheld by the Court.
2. Does a more extensive reading-in order in terms of which provision was made for the status of children born of unmarried permanent life partners should be incorporated?
3. Ought the order declaring section 5 invalid be suspended in order for Parliament to take steps to legislate for same sex permanent life partnerships?

Arguments Presented

The Applicants’ Argument

The Applicants pointed out that since a child born of artificial insemination of a married woman and husband could be treated as legitimate whereas a child born of artificial insemination within a same sex life partnership could not, this constitutes an unfair differentiation and infringement upon them on the grounds of their sexual orientation, as well as marital status. Apart from the emotional hurt caused by this differentiation the Applicants noted that they too as parents of the children were denied the legal security and recognition as they and their children were being deprived by this provision in the statute, thus being prejudiced by this discrimination as well, with the potential to cause them and their children immense emotional strain and trauma. Based upon this, and the aforementioned factual background, they had requested that the Order passed by the Durban High Court with regard to reading out ‘married’ in terms of it being replaced with ‘or permanent same sex life partner’ where it appears ‘husband’ be upheld by the Court.

The Respondents’ Arguments

The Respondents had not opposed the decision by the High Court that the particular provision under review was unconstitutional, and similarly had not launched an appeal regarding the related regulations. It contended however that the proposed relief by the Court in the order should include not just same sex life partners, but also unincorporated heterosexual permanent life partners, with the words ‘permanent life partner’ being read into section 5 rather than ‘permanent same sex life partner,’ in order to avoid discriminating against unmarried but otherwise permanently committed couples of both orientations.Also it stated that the Declaration of Invalidity should be suspended for a period of at least one year so as to give Parliament time to address the legal framework for the entire issue including the complexities of this area, also pointing out the ongoing Law Reform Commission inquiry into similar issues.

Court’s Reasoning and Analysis

Goldstone J, speaking for the unanimous Court, found the provision to be unfairly discriminatory on the ground of sexual orientation contrary to section 9(3) of the Constitution, drawing close parallels with the Du Toit-case.⁷ In Du Toit, regulations forbidding same-sex couples from jointly adopting a child was struck down as the inability to adopt jointly was so closely tied to sexual orientation. This principle was applied, with the Court reasoning that the inability to legally recognise one partner of the relationship as a parent was directly associated with same-sex relations.

Although the government did not present evidence for justifications under section 36 of the Constitution,⁸ that didn’t absolve the Court from conducting its own investigation into justification, and after considering all aspects, concluded that justification was not possible. With regards to the issue of remedying section 5 of the Act the Court supported the High Court’s combination of severance (the deletion of the words “married”) and reading-in (“or permanent same-sex life partner”), acting in keeping with the precedent established in the National Coalition case. Further, and for a more complete and consistent remedying, the Court also read out the very final words of section 5(1)(a) as well, stating “as if”. The reasoning there was that these were purely clarificatory words and had no substance, based on common-law legitimacy which never could in any way have applied.

As the application is only aimed at same-sex permanent life partners, the Court found itself to be in no position to extend reading in of provisions to unmarried permanent heterosexual partners, and in support of this position adopted the reasoning of Satchwell-case which ruled that a court, after argument on such matter, is not able to import other matters, by way of or by other devices… In the other legal spheres at liberty at all to mould to what one considered desirable.

 Finally, the Court was not of the view that there was a legislative lacuna for the provision; that any gap in provisions was remedied by the present declaration; that Parliament could act to reform laws relating to same sex partnerships and marriage; that there existed other laws already which addressed certain aspect of same sex partnerships to an extent, which showed that such legislation could indeed be passed.⁹ The Court thus rejected suspension as the Court expressed doubt as to whether the High Court’s decision could have been stayed to give Parliament a period in which to legislate “a comprehensive scheme”. The Court acknowledged its power and right to offer guidance to Parliament in so far as same sex partnership would be legislated in comprehensive way in time.¹⁰

Judgment and Ratio Decidendi

The Constitutional Court affirmed the order of constitutional invalidity it made earlier, holding that s 5 of the Children’s Status Act was inconsistent with the Constitution to the extent that it referred to ‘married’ and did not include the words ‘or permanent same-sex life partner’ after the word ‘husband’. It ordered that wherever the words “married” appear in the section they should be deleted and that wherever the word “husband” appears they should be followed by the words “or permanent same-sex life partner”. The closing words of s 5(1)(a) were entirely severed. The Court did not extend the remedy to heterosexual permanent life partners, or order the suspension of the order. Costs were awarded jointly and severally against the respondents, including the costs incurred by the curatrix ad litem who was appointed in the interests of the children.¹¹

The ratio decidendi is that in defining which children will be legitimate and the parents of which parents who conceived that child with assisted human reproductive technology, the law makes unfair, unconstitutional and unlawful discrimination against same-sex relationships, violating s 9(3) of the Constitution. The exclusion could not be justified because, in the circumstances, the state had advanced no justification under section 36. Furthermore, because it was possible by reading-in to completely cure the constitutional defect, suspension of the declaration of invalidity would not be appropriate as it would create a lacuna.

Critical Analysis

Significance of the decision

The decision is part of the chain of judgments in which the Constitutional Court incrementally abolished sexual orientation discrimination in family law (such as the judgment in Minister of Home Affairs v Fourie¹² where same sex marriage was recognized, and the Civil Unions Act¹³ passed.) Previous cases, while perhaps laying down the theoretical and doctrinal basis, could not deal with children and assisted human reproductive technology. This case finally laid down such a precedent, whereas earlier case law had only dealt with the issue of adoption.

Implications and Impact

The judgment clarified the legitimacy of the children of same sex couples as well as establishing parental rights. This has practical consequences for their inheritance and maintenance, as well as their legal security, since it accords with the best interest principle embodied in s 28(2) of the Constitution.[1]⁴ The case was also noteworthy for the fact that the Court did not offer an extension for heterosexual permanent life partners. This showed a clear regard for judicial philosophy, by only remedying the specific issues brought before it and leaving other challenges for the legislature, despite a clear legal gap and a subsequent need for judicial review.

Critical evaluation

The judgment’s construction and reasoning appear, on face value, to be in line with earlier judgments of the Constitutional Court and appear convincing after comparison with the judgment in Du Toit.

 By amputating “as if” clause from section 5(1)(a), it ensured that the reading-in did not add an artificial fiction to the law, but that the intention of the legislator was correctly implemented in the context that it had intended. Its refusal to suspend the order appears consistent and logically justified by distinguishing the situation from cases where a lacuna was left and hence temporary legislation was needed. A key critique that has been levelled against the case, however, is that a case-by-case response left some legal relationships even more ambiguous than they already were, although it is conceded in the judgment and has already led to calls for the legislature to attend to matters urgently.

Conclusion

In J and B v Director General: Department of Home Affairs the Constitutional Court affirmed that the exclusion of same sex permanent life partners in legislation defining the legitimacy of children conceived by assisted human reproductive technology amounted to an unfair sexual orientation discrimination. The order of reading-in and severance enacted by the Constitutional Court guaranteed the immediate establishment of parental rights for the applicant’s children without the need for suspension of the declaration of invalidity, while its application of remedy has left heterosexual partnerships for a later application or amendment. The case is further evidence of the phased judicial recognition of same sex relationships in the South African legal system and builds upon principles introduced by the judgments in National Coalition, Satchwell and Du Toit.

Bibliography

Cases

Du Toit and Another v Minister of Welfare and Population Development and Others [2002] ZACC 20; 2003 (2) SA 198 (CC).

J and Another v Director-General, Department of Home Affairs and Others [2003] ZACC 3; 2003 (5) SA 621 (CC); 2003 (5) BCLR 463 (CC).

Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC).

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC).

Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC).

Legislation

Births and Deaths Registration Act 51 of 1992.

Children’s Status Act 82 of 1987.

Civil Union Act 17 of 2006.

Constitution of the Republic of South Africa, 1996.

[1] National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC).

² Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC).

³ Du Toit and Another v Minister of Welfare and Population Development and Others [2002] ZACC 20; 2003 (2) SA 198 (CC).

⁴ Births and Deaths Registration Act 51 of 1992.

⁵ Children’s Status Act 82 of 1987, s 5.

⁶ Constitution of the Republic of South Africa, 1996, s 172(2)(a).

⁷ J and B (n 1) para 1; Constitution (n 2) s 9(3).

⁸ Constitution (n 2) s 36.

⁹ National Coalition (n 4); see also Satchwell (n 5), applying the principle that a court should not import issues not properly before it.

¹⁰ Constitution (n 2) ss 7(2) and 8(1).

¹¹ J and Another v Director-General, Department of Home Affairs and Others [2003] ZACC 3; 2003 (5) SA 621 (CC); 2003 (5) BCLR 463 (CC) (‘J and B’).

¹² Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) paras 60-95.

¹³ Civil Union Act 17 of 2006.

¹⁴ Constitution (n 2) s 28(2).