An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Over the past ten years the
Given that the Civil Union Bill will extend marriage to same-sex couples, the million dollar question was what would happen to the rights of unmarried same-sex couples to adopt children, to enjoy immigration rights, pension benefits and the right to inherit from a same sex life partner.
Would a same-sex couple who did not marry on 1 December wake up the next day to find they had the same lack of rights as unmarried heterosexual couples?
Today in the case of Gory v Kolver and Others acting Constitutional Court Judge Belinda Van Heerden (is she destined to become the fourth woman judge on the CC?) confirmed that these hard-won rights would not automatically be amended merely because same-sex couples are now allowed to get married.
We will now have the strange situation where same sex couples will have more rights and more options than heterosexual couples. Even if same-sex couples do not get married they will have, for example, the right to inherent from their life partner – even where no will was left.
But, as the Court points out, Parliament will have the right to amend this kind of legislation to take away the rights of non-married same-sex couples so that they are treated the same as heterosexual couples.
In its haste to pass the Civil Union Bill, Parliament seem to have forgotten about such issues. As the Court pointed out today:
[Q]uestions like what status to accord pre-existing same-sex life partnerships after the expiry of the Fourie deadline, whether to provide a “transitional” period in which partners to pre-existing same-sex life partnerships will qualify for the benefits conferred by law on “spouses”, and if so, the length of such a transitional period are pre-eminently legislative decisions. This kind of decision ought to be taken by Parliament when it enacts the legislation contemplated in the Fourie case, and ought not to be anticipated by this Court.
The underlying issue, which so many so-called pro-marriage opponents of the Civil Union Bill fail to see because of their ingrained homophobia, is that the Civil Union Bill has the potential to strengthen the institution of marriage – not to weaken it.
Many people get married because they cannot easily access the rights attached to marriage in any other way. That is why the second part of the original Civil Union Bill which was dropped from the final version was far more threatening to the institution of marriage than the extension of marriage to same sex couples in the first part.
The second part of the Bill would have extended to non-married heterosexual or same-sex couples many of the rights and privileges associated with marriage without them having to conclude a marriage. The idea is that there is a need to protect the financially and socially weaker partner (usually the woman in a hereosexual relationship) from exploitation.
Such provisions, if adopted, will make marriage for all intense and purposes irrelevant in law.
Lets hope Parliament stick to its promise to reconsider these other aspects of the proposed Civil Unions Bill so that one day marriage will not be about rights and duties, but only about white dresses, giving presents and sharing one’s relationship with close friends and family.BACK TO TOP