Bill gives gay partners a shot in the arm

By M.S. Prabhakara

CAPE TOWN, NOV. 24. Legislation dealing with Estate Duty recently passed by both Houses of Parliament, which in its ``definitions'' part defines ``spouse'' as being inclusive of one involved in ``a permanent same-sex life relationship'' is being seen by activists of the lesbian and gay community in South Africa as constituting a significant advance in their movement for equality.

On November 3, the National Assembly passed the Revenue Laws Amendment Bill dealing with certain provisions of the Estate Duties Act. As required in the case of all legislation dealing with financial matters, it was also passed by the National Council of Provinces on November 9. There has been at least one other instance in South Africa's legislative process where spouse or ``partner'' has been defined to mean ``partner in a marriage relationship'', with ``relationship'' further defined to include ``a continuous cohabitation in a homosexual or heterosexual partnership for a period of at least five years''.

However, this is probably the first piece of legislation which provides such an inclusive definition of the expression ``spouse'', radically enlarging the more common usage of the term. In so far as its broader familial and financial implications go, this means that same sex life partners will now enjoy the same exemptions from Estate Duties tax that were applicable to spouses of married persons.

Lesbian and gay activists have welcomed this as a ``groundbreaking development'' marking a significant advance in their movement for lesbian and gay equality, and an indication of future government policy in this regard. According to Ms. Carrie Shelver, Director of the National Lesbian and Gay Equality Project, the passage of the Promotion of Equality and Prevention of Unfair Discrimination Bill early this year had created great expectations among lesbian and gay persons about the recognition of their right to equality in all aspects of life. ``This new Act impacts directly on the struggle by all lesbian and gay people for the full legal recognition of our relationships,'' she said.

Currently, the South African Law Society is reviewing the provisions of the Marriage Act as it applies to same sex partners. The Equality Act does not directly refer to unfair discrimination in respect of lesbian and gay practices, while specifically prohibiting unfair discrimination on grounds of race, gender, and disability.

However, the legislation is directly related to and arises out of the anti-discrimination provision in the Equality clause in the Bill of Rights. ``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, age, disability, religion, conscience, belief, culture, language and birth.'' This provision, unique to South Africa's Constitution when it was adopted, is the core text on which the subsequent struggles for equality of the lesbian and gay community, as indeed of all other marginalised communities, have been based.

This legislative expansion of the definition of the term ``spouse'' has to be seen in the context of other developments having a bearing on the issue. The Johannesburg High Court ruled over two years ago that the common law crimes of sodomy and unnatural offences covered by Section 20 of the Sexual Offences Act was unconstitutional, effectively legalising, or decriminalising gay sex between adults.

In another development, the Cape High Court ruled in February last year that same sex couples have the same rights as married spouses to live and work in South Africa if one of the partners in the relationship is an immigrant and the other a citizen. The case arose out of the application by six foreigners, two female and four male, all in relationship with South African same sex partners who sought legal residence in this country. The State's appeal against the judgment was dismissed, with costs, by the Constitutional Court in December last year.

As always, there is a downside even in the most progressive of such initiatives. Thus, there have been instances since these developments of illegal immigrants to this country citing these rulings to secure ``asylum'' or permanent residence here on the ground that their home countries discriminate against homosexuality.

Send this article to Friends by E-Mail

Section  : International
Previous : Massive protest against ETA actions
Next     : Climate changes warm businessmen hearts