Judges' plea may benefit same-sex partners

By M.S. Prabhakara

CAPE TOWN, AUG. 7. Consequent upon the `judicial intervention' of an unusual kind, gays and lesbians in South Africa are poised to win another legal victory in their search for equality in the wake of some fresh legal changes to certain laws or interpretations thereof.

In particular, the adoption of a child jointly by both the same- sex partners living in a gay relationship is almost certain to become legal.

At present, only one of the partners in such a same-sex relationship is allowed to adopt, in her or his individual capacity, and become the legal guardian of a child, as per the provisions of the Child Care Act.

The unusual nature of these legal challenges is that they have been mounted by two sitting members of the higher judiciary, Judge Anna-Marie de Vos of the Pretoria High Court and Judge Kathy Satchwell of the Johannesburg High Court, both living in apparently long and stable relationships with their same-sex partners - 13 years in the case of Judge de Vos and 15 years in the case of Judge Satchwell.

Judge de Vos is seeking a ruling declaring provisions of the Child Care Act which do not allow for the joint adoption of a child by both partners of a same-sex relationship unconstitutional.

She has adopted two children, a boy and girl, and wants this parental relationship to be made legally valid covering her same- sex partner as well.

Judge Satchwell is seeking a ruling declaring unconstitutional those provisions of the Judges Remuneration Act which do not allow such benefits as are available to the (heterosexual) spouses of judges, including payment of two thirds of the judge's salary to the surviving spouse in the event of the death of a sitting judge, to be made available to her same-sex partner.

Judge Frans Kgomo of the Pretoria High Court who began hearing both the applications this morning reserved his ruling in respect of the application of Judge de Vos.

He said considering the similarities between the two applications, he wanted to hear the Satchwell application as well before making his ruling, expected tomorrow.

Interestingly, the Government is not opposing the application of Judge de Vos. The present provisions, which violate the equality and anti-discrimination clauses of the Constitution, are patently unconstitutional.

Several earlier judicial rulings have struck down corresponding provisions affecting same-sex partners.

However, the Government is opposing the Satchwell application on the ground, among others, that it lacks resources to make available to same-sex partners of judges benefits which are presently available only to legally married spouses, and that any favourable ruling would `open the floodgates'.

Some organised Christian and Muslim groups which have anyway been opposed to the ``freedom of sexual orientation'' provision in the Equality clause of the Bill of Rights are also opposing the applications by the two judges.

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Section  : International
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