‘Spouse’ in Section 2(1)(c) of the Immigration Control Act to be interpreted to include same-sex spouses lawfully married in another country

(Appellants herein mean the couples in same-sex marriages and respondents mean the Government. The facts of these cases were widely reported). 

The appeal raised several key questions, among others, whether the Ministry’s refusal to recognize lawful same-sex marriages from foreign jurisdictions (in this case South Africa and Germany) involving a Namibian and a non-citizen is compatible with the Constitution. 

The majority held that:

a) There is 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. That principle finds application to these matters. 

b) The value judgment to be made by a court when determining the ambit of the right to dignity would be with reference to the constitutional values, aspirations, norms, expectations, and sensitivities of the Namibian people as expressed in the Constitution. Further, whilst public opinion expressed by the elected representatives in Parliament through legislation can be relevant in manifesting the views and aspirations of the Namibian people, the doctrine of the separation of powers upon which our Constitution is based means that it is ultimately for the court to determine the content and impact of constitutional values in fulfilling its constitutional mandate to protect fundamental rights entrenched in the Constitution. That is the very essence of constitutional adjudication which is at the core of our Constitution. 

c) The interpretation of s 2(1)(c) of the Act by the ministry to exclude a spouse in a same-sex marriage from inclusion within that term has the effect of infringing that spouse’s (and the other marriage partner’s) right to dignity protected in Art 8. 

d) It is held further that, the obiter approach to the term ‘spouse’, although not made with specific reference to s 2(1)(c) of the Act by the majority in Frank, is expressly disapproved and the approach of the High Court Full Bench on this issue is approved. 

e) The unfairness of discrimination is to be determined with reference to the impact upon the victim(s) discriminated against, the purpose sought to be achieved by the discrimination, the position of the victim(s) in society, the extent to which their rights and interests have been affected and their dignity impaired. The court expressly disapproves of the obiter statement in Frank that ‘equality before the law for each person does not mean equality before the law for each person’s sexual relationships’. This approach is incompatible with the right to equality properly interpreted in a purposive right giving way, as has been repeatedly held to be the approach to interpretation held by this court. It also fails to take into account the human worth and dignity of all human beings including those in same-sex relationships which is at the very core of the equality clause.  The Supreme Court accordingly found that the approach of the ministry to exclude spouses, including the appellants, in a validly concluded same-sex marriage from the purview of section 2(1) of the Act infringes both the interrelated rights to dignity and equality of the appellants.

f) Mr Digashu and Ms Seiler-Lilles are to be regarded as a spouse for the purpose of s 2(1)(c) of the Act, given their validly concluded marriages in South Africa and Germany respectively. The term ‘spouse’ in s 2(1)(c) of the Act is to be interpreted to include same-sex spouses lawfully married in another country.

The majority discussed the applicable legal principles from page 31, paragraph 82 to page 52, paragraph 134 of the judgment, in summary as follows:

Recognition of appellants’ marriages 

The term ‘spouse’ is not defined in the Act. Its ordinary meaning connotes ‘a married person; a wife; a husband. The use of the term in s 2(1)(c) would not contemplate a wider meaning than this, being a person who has entered a marriage. The term marriage is likewise not defined in the Act and would contemplate valid marriages duly concluded and ordinarily recognized, including those validly contracted outside Namibia in accordance with the law applicable where the marriage is concluded in accordance with the general principle of common law, already referred to. That is the interpretation to be given to the term ‘spouse’ in s 2(1)(c). 

The ministry did not raise any reason relating to public policy as to why the appellants’ marriages should not be recognized in accordance with this general principle of common law. Nor did the ministry question the validity of the appellants’ respective marriages. On this basis alone, the appellants’ respective marriages should have been recognized by the ministry for the purpose of section 2(1)(c) and Mr Digashu and Ms Seiler-Lilles are to be regarded as a spouse for the purpose of section 2(1)(c) and thus exempt from Part V of the Act. 

The rights to dignity and equality 

The appellants raised their constitutional rights to dignity (Art 8) and equality (Art 10) in support of the declaratory relief sought to be included in the meaning of spouse in section 2(1)(c) and that the refusal to do so amounts to a violation of those rights. 

In Dawood & another v Minister of Home Affairs & others 2000 (3) SA 936 (CC), the South African Constitutional Court was called upon to consider the right to the human dignity of a foreign spouse to a South African citizen wanting to reside in South Africa with the citizen spouse. The immigration legislation permitted foreign spouses to be granted a temporary residence permit to reside temporarily in South Africa pending the outcome of their applications for permanent residence. A similar right was not afforded to non-spouses who were required to await the outcome of their applications outside South Africa. (This is unlike the position under our Act where no permit to reside is required for a spouse of a citizen and where no official has the discretion to refuse that right by virtue of s 2(1)). A unanimous court held that (in the absence of the right to family in the South African Constitution), the right to dignity was engaged in protecting an individual’s right to enter into and sustain permanent intimate relationships and concluded that the challenged legislative provision infringed the right to dignity.

‘[108]…where legislation or its interpretation or application would significantly impair the ability of spouses to honour their obligations to one another, this would infringe the constitutional right to dignity of the spouses…

[109] There is a further reason why the approach of the Ministry to exclude Mr Digashu and Ms Seiler-Lilles from the ambit of spouse in s 2(1)(c) is in conflict with the Constitution. It infringes on their rights to equality entrenched in Art 10 - ‘Equality and freedom from discrimination.’

The test to be applied in determining whether there is discrimination under the two sub-articles of article 10 differ and were succinctly summarised in Müller. Applying that test:

‘[112] Discrimination on the listed grounds enumerated in Art 10(2) is presumptively unfair along the lines set out in Müller, whilst unfair discrimination on any other grounds is also unlawful and unconstitutional under Art 10(1) if the differentiation is not based on a rational connection to a legitimate purpose.’ 

Furthermore:

‘[115] In the absence of authority or evidence, we decline the invitation to find that sexual orientation constitutes social status for the purpose of Art 10(2) and thus leave that question open. 

[118] In Mwellie v Ministry of Works, Transport and Communication 1995 (9) BCLR 1118 (NmH) (Per Strydom JP), the court held that, in a challenge based upon Art 10(1), an applicant would bear an onus first to establish a differentiation provided for in a statutory provision (or in these appeals in the application of a statutory provision). The second stage of the analysis is for an applicant to show that the differentiation in question is not reasonable in the sense of not being rationally connected to a legitimate statutory object (Harksen v Lane N.O. & others 1998 (1) SA 300 (CC) approved in Müller).’

In these appeals, differentiation was established in the way in which the Ministry treats non-citizen spouses in a heterosexual marriage as opposed to those in a same-sex marriage for the purpose of s 2(1) of the Act. The ministry interprets ‘spouses’ in s 2(1)(c) to contemplate those married in a heterosexual marriage and excludes those married in a same-sex union from the protection afforded by s 2(1)(c). The question arises as to whether it was established that this differentiation violates Art 10(1) by being unreasonable in the sense of not being connected to a legitimate statutory object. 

The appellant’s case was that the differentiation satisfied the second stage of the inquiry and that the unfairness of the Ministry’s approach was apparent from the disadvantage they endured as a consequence. The Supreme Court in Müller found that in an enquiry as to whether a differentiation (based in that matter on a proscribed ground in Art 10(2)) amounted to unfair discrimination, various factors would play a role and their cumulative effect is to be examined. 

‘[123] The impact of the differentiation upon Mr Digashu and Ms Seiler-Lilles is far-reaching and potentially devastating when compared to spouses in a heterosexual marriage. Instead of being entitled to cohabit in Namibia with their Namibian citizen spouse under s 2(1)(c), they are required by the Ministry to apply for one of the ranges of permits posited by Part V to provide them with permission to reside or be employed in Namibia. In the instance of Mr Digashu, the permit identified by the Ministry would be temporary and of a precarious nature which was in any event refused, as was the permanent residence application by Ms Seiler-Lilles. 

[124] The result of the differentiation has led to a profound impairment of their fundamental human dignity at a ‘deeply intimate level of their human existence’ (National Coalition). 

[125] The ministry has raised no rational connection to a legitimate statutory object. The reliance for its approach is placed upon obiter statements in Frank, which as we have shown are unsound and, in any event, were of no application to the appellants given their valid marriages entered into.

[126] The purpose of prohibiting discrimination in Art 10 is after all the emphatic recognition in the Constitution that all human beings are to be accorded equal dignity which is impaired when a person is unfairly discriminated against.

[128] We accordingly conclude that the approach of the Ministry to exclude spouses, including Mr Digashu and Ms Seiler-Lilles, in a validly concluded same-sex marriage from the purview of s 2(1) of the Act infringes both their interrelated rights to dignity and equality. 

[129] They are spouses for the purpose of s 2(1)(c) of the Act, given their validly concluded marriages in South Africa and Germany respectively. The term ‘spouse’ in s 2(1)(c) is thus to be interpreted to include same-sex spouses lawfully married in another country. It is not necessary for an order to the effect that those words are to be read into the term ‘spouse’ because the interpretation to be given to the term ‘spouse’ by this court in complying with the constitution is to include same-sex spouses lawfully married in another country.

[134] It also remains for us to point out that the legal consequences of marriage are manifold and multi-faceted and are addressed in a wide range of legislation. This judgment only addresses the recognition of spouses for the purpose of s 2(1)(c) of the Act and is to be confined to that issue. The precise contours of constitutional protection which may or may not arise in other aspects or incidents of marriage must await determination when those issues are raised.’

As a result, the appeal succeeded with costs. The order of the High Court was set aside and replaced with appropriate orders. 

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