Seperate always unequal

Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18

PREVIOUS QUOTES OF THE WEEK

19 October 2006

Business Day yesterday published a letter from Kader Asmal in which he argues that the Civil Unions Bill comply with the Constitutional Court judgment in Minister of Home Affairs v Fourie. He quotes from Sachs’ judgment to the effect that:

Equal treatment does not invariably require identical treatment. thus corrective measures to overcome past and continuing discrimination may justify and may even require differential treatment.

This qoute does not support his argument though. On the contrary, it refutes his argument. In the context of equality, justice Sachs suggests here, those who have been particularly marginalised can sometimes be given preferential treatment. Gay men and lesbians have been particularly marginalised and oppressed so they should, in some cases qualify for preferential treatment. What the Constitution prohibits is for such a marginalised group to be given worse treatment than those who oppress them. And that is eactly what a seperate but equal civil partnership arrangement does. It provides for a seperate institution that may provide same-sex couples with most of the legal rights and duties associated with traditional marriage, but the Civil Union Bill spectacularly fails to extend to such relationship the same status as that associated with marriage. The mere fact that the drafters decided to create a seperate institution is a dead giveaway. If it is not called marriage, it ain’t marriage. As I have argued in my article in the Mail & Guardian two weeks ago:

This is extremely insulting and humiliating towards those of us who might want to marry a member of our own sex. The Constitutional Court warned that creating a special institution for same-sex couples will invariably send the signal that bringing same-sex couples under the umbrella of marriage law would taint those already within its protection. It endorses the view that homosexuals are somehow depraved, impure and tainted and that “pure” heterosexual marriage must be protected from this abomination. As the Constitutional Court pointed out in the Fourie judgment, such a view – no matter how seriously and sincerely held – can only be based on prejudice against or hatred of homosexuals. And prejudice, the Court has said on many occasions, can never justify unfair discrimination.

SHARE: