Digashu V GRN, Seiler-Lilles V GRN Dissenting (minority) judgment
The common law principle relied on by the majority is sound in law, but Namibia is under no obligation to recognize a marriage inconsistent with its policies and laws
(A minority judgment does not constitute the binding decision of the Supreme Court, which is binding on the courts and people, but it is of persuasive value only. The facts and issues have been widely reported).
In dissenting, the minority held, among other things that:
a) The common law principle relied on by the majority is sound in law, but Namibia is under no obligation to recognize a marriage inconsistent with its policies and laws for the reason that the said marriage is valid in terms of the municipal law of the country in which it was contracted. The appellants’ same-sex marriages offend the policies and laws of Namibia.
b) The ministry did not have to raise public policy, although if it did, it would have strengthened its case.
The minority discussed the applicable legal principles as follows from page 55, paragraph 136 to page 77, paragraph 186, in summary as follows:
‘ [142] ... My dissent is on (1) my brothers’ decision to resolve the disputes in these matters on the amended/alternative Constitutional reliefs sought by the appellants; (2) the consequent orders made… …
[151] I now turn to the main finding of the majority judgment.
[152] That finding has its basis in a well-established general principle of common law, that if a marriage is duly concluded in accordance with the statutory requirements for a valid marriage in a foreign jurisdiction, it falls to be recognized in Namibia and that, that principle finds application to these matters. The judgment relies on the ordinary meaning of spouse since s 2(1)(c) does not define the word. The judgment goes on to say that the Ministry did not raise any reason relating to public policy as to why the appellants’ marriages should not be recognized in accordance with the general principle of common law; neither did the Ministry question the validity of the appellants’ marriages. Further to that, on the basis of the common law principle, appellants’ marriages should have been recognized for the purposes of s 2(1)(c), and Mr. Digashu and Ms. Siller-Lilles are to be regarded as spouses and thus exempt from Part V of the Act. The majority relies on the South African cases of AS v CS and Seedat’s Executors for the finding.
[153] A careful reading of AS v CS reveals that even South Africa whose Constitution on Fundamental Rights prohibits discrimination on the ground of sexual orientation, had to pass the Civil Union Act 17 of 2006 to accommodate same-sex partnerships/marriages. The Preamble to the Civil Union Act…notes:
‘AND NOTING that the family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex couples.’
[154] Compare the observations of the former Chief Justice of Zimbabwe, Gubbay when he said:
‘The mere fact that a given state has a justiciable declaration of rights in its constitution, no matter how well drafted, does not of itself guarantee the enjoyment of, or respect for, human rights. It is quite possible for two countries with identical declarations to have totally different experiences with the level of human rights that are actually enforced. For example, the Soviet Constitution of 1936 had a Declaration of Rights which one might wish. Yet that did not stop the Gullags, mass deportations, or other notorious human rights violations of the Stalinist era from occurring. The United States experienced a similar situation. For over two hundred years clauses of the Constitution of the United States have been substantially the same. Nonetheless, the institution of slavery was tolerated; women did not have contractual capacity or the ability to own property until 1848; women and African Americans did not have the right to vote until this century; sex and racial discrimination coexisted with the Equal Protection Clause of the Fourteenth Amendment for at least fifty years’ (Human Rights Quarterly 19 (1997) 227-254 at 228 (c) 1997 by ‘The Johns Hopkins University’).
[155] In AS v CS, the same-sex partnership was solemnized in the United Kingdom (UK) both parties being South Africans. When the partnership failed the plaintiff returned to South Africa. The defendant later followed. Plaintiff instituted divorce proceedings. The matter was unopposed in motion proceedings. The judge presiding raised the question of whether the court had jurisdiction to grant a decree of divorce in respect of a same-sex marriage (or similar union) solemnized in a foreign jurisdiction...
[157] Gamble J in his judgment analyzed the provisions of the Civil Union Act, which was a follow-up on the decision in Minister of Home Affairs & another v Fourie (Doctors for Life International, Amici Curiae); Lesbian & Gay Equality Project & others v Minister of Home Affairs & others 2006 (1) SA 524 (CC)) wherein the Constitutional Court had held the common law definition of marriage inconsistent with the Constitution, so were the provisions of s 30(1) of the Marriage Act 25 of 1961. When he turned to foreign same-sex partnerships he raised the question as to what is the status in South Africa of a same-sex marriage/partnership concluded outside of South Africa?
[158] For the reason of his finding in para 33 to the effect that:
‘[33] Notwithstanding the obvious shortcomings in the Act, I consider that it is correct to say that the present state of our law then is that a same-sex union concluded under the Act is fully cognizable as a marriage, whether the partners thereto choose to call it a marriage or a civil partnership, and that such union is capable of dissolution under the Divorce Act.’
He in para 34 restated the common law principle the majority is holding onto.
[159] In my opinion, this is because the same-sex partnership in terms of SA law was on the same level with the traditional marriage.
[161] …he concluded in para 41:
‘English civil partnership, having been lawfully concluded in that country, should be accepted as a valid and binding civil partnership in the Republic in accordance with the lex loci celebrationis principle, provided only that it does not otherwise offend South African public policy.’
[162] The majority also relies on Seedat’s Executors v The Master (Natal) for the common law principle, but they however conveniently overlook what the court said at pages 307–309:
‘But there are exceptions to the widely accepted rule by which foreign courts recognize the validity of a marriage contracted in accordance with the local law. And one of them is based upon the principle that no country is under an obligation on grounds of international comity to recognize a legal relation which is repugnant to the moral principles of its people. . . . ’
[169] That being the case, the finding based on the common law principle is without a foundational basis and is clearly fundamentally wrong. In fact not only is it wrong, but it trashes the historical, social, and religious convictions of the Namibian people.
[170] The Ministry was thus entitled to reject the appellants’ same-sex marriages, it is marriages not recognized in Namibia. The common law principle relied on by the majority is sound in law but there are exceptions to the rule and Namibia is under no obligation to recognize a marriage inconsistent with its policies and laws for the reason that the said marriage is warranted by the municipal law of the country in which it was contracted. The marriages of the appellants offend the policies and laws of Namibia. It would be wrong to understand and apply the common law principle contra the authorities and interpret s 2(1)(c) to include foreign same-sex marriages. The principle finds no application under the circumstances.
[171] Regard had to the preamble to the Civil Union Act of South Africa, the revelation by Chief Justice Gubbay, and the position in many other jurisdictions, the fact that the laws of Namibia do not make provision for same-sex relationships, is not peculiar to Namibia only, it is worldwide…
[174] As I have already stated Namibia is no exception. The revulsion of the Namibian people as mirrored in its Constitution particularly Art 23 is directed at past injustices. Homosexuality would not have been one of the injustices. In late 1989 and early 1990 when the Constitution of the Republic was being drafted, and adopted, marriage was clearly understood in the traditional sense of being a union between partners of different sex. When Art 14 of the Constitution grants men and women of full age the right to marry and found a family and entitles them to equal rights as to marriage, during marriage, and at its dissolution it relates to partners of different sex. That is how the Married Persons Equality Act 1 of 1996 came into being, the policy of equal representation between men and women. The International Human Rights Conventions allows member States a wide margin of appreciation when it comes to general measures in issues like the one in question. That much is conceded by the appellants when in their heads of argument they stated, ‘ . . . under International Human Rights Laws States are not required to allow same-sex couples to marry . . .’ and referred to the CCPR in particular (CCPR/C/75/D/902/1999 and 10 IHRR 40 (2003). See also Schalk and Kopf para 97).
[175] Both Mr. Digashu and Ms. Seiler-Lilles would have known the status of same-sex couples in this country, if they did not know they were informed at the time they applied for their respective permits. In fact, Mr. Digashu in his application states that the major consideration in refusing the employment permit was because gay marriages are not recognized in Namibia. In his very first application for a work permit which was in a letter form on 15 June 2017, he stated, ‘I am well aware that our marriage as a same-sex couple is not recognized here in Namibia . . . ’. In his penultimate paragraph, he pleaded with the Ministry ‘to keep this matter as private and confidential as possible to avoid any unnecessary exposure . . . ’
The learned judge concluded at pages 74 – 75, that:
[182] Viewed from the perspective I demonstrate above; the Ministry did not discriminate against the appellants. The Ministry applied the law as it is, currently in this country. To say the Ministry relied on the unsound finding in Frank, is to obscure reality. Frank or no Frank, there is no statutory provision for same-sex couples in the Namibian laws. The Ministry like any other Cabinet Ministry implements laws. It is not in the province of the Ministry to legislate or interpret laws. It has applied s 2(1)(c) consistent with the Act, read with other statutes and the Supreme law of the country. In any event, Frank is a decision of this Court, and the Ministry had no reason not to rely on it. The obiter dicta the majority distances themselves from is widely accepted as the law on the word spouse and the Ministry had every reason to rely on it. The court below accepted it that way except for the criticism that Frank was narrowly interpreted. To the extent that there is no law protecting same-sex relationships, I would readily concede that the laws of Namibia and not the Ministry discriminate against same-sex relationships, but that fight should start with the Constitution.
[185] Parliament cannot keep quiet for too long on the issue – it will have to regulate the issue in one way or another. The claim to same-sex relationships is now here and Parliament which is best placed to assess and respond to that need should arise and act in terms of its Constitutional mandate.’Visit https://consultfasz.com/ for more Concise Law Reports (CLRs).