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Same-sex couples await historic ruling

2021-05-21  Maria Sheya

Same-sex couples await historic ruling

Two separate same-sex couples fighting to have their marriages recognised in Namibia were given a waiting period of eight months to hear if their historic bids in court were successful.

Namibian national Anette Seiler-Lilles and her German spouse Anita Seiler-Lilles alongside Johan Potgieter and his South African spouse Tjoelantele Digashu were informed by a full bench of judges in the High Court yesterday that a ruling in their matter is scheduled to be delivered on 20 January 2022.

In the two-part application, judges Orben Sibeya, Hannelie Prinsloo and Esi Schimming-Chase are set to decide whether the couple’s marriages, which were solemnised in foreign jurisdictions, can be recognised in Namibia, and if the couples could be considered as ‘spouses’ as stipulated by the Immigration Control Act. 

Furthermore, the court would decide if the couples could be recognised as a family unit, particularly for Digashu and Potgieter, who have a minor child.

The court will have to make a finding whether the ministry of home affairs was right to decline Digashu’s employment permit, referring it back to the Immigration Selection Board without indicating why it was declined. The court would also have to review the decision by home affairs to refuse Anita Seiler-Lilles’ application for permanent residence. 

During oral arguments, the couples’ lawyer Raymond Heathcote argued that the couples are not seeking for an order to legalise same-sex marriages in Namibia, but to have same-sex marriages that were solemnised in foreign states recognised.

Heathcote said although same-sex marriages are not recognised in Namibia, there is nothing in the constitution that stipulates that such marriages cannot be celebrated and embraced.  “Our constitution provides all the answers for this application. Our Constitution not only tells us that we live in a secular state, but it also tells us to tolerate, embrace and celebrate our diversity as a nation. These marriages are not repugnant to our constitution,” argued Heathcote. 

He added that the constitution does not dictate who should marry whom, and the definition of ‘spouse’ within the law does not explicitly state that marriage should only be between a man and woman. 

Judge Sibeya questioned whether granting the reliefs sought would not open a floodgate, to which Heathcote replied that the court should not be worried about floodgates when citizens are relying on their rights as enshrined in the constitution. 

South African lawyer Thandazani Madonsela, who is representing government, requested for the court to dismiss the application, citing that the court would be overreaching to give the reliefs sought. 

 “The applicants seek wide and far-reaching relief, the granting whereof would have a fundamental impact on the concept of marriage in Namibia. Matters of this nature are best left for parliament,” submitted Madonsela. 

He said although the spouses are married, their marriages are not recognised in Namibia and consequently, they would not enjoy domicile status in the country. 

On the issue of the couples to be recognised as a family, Madonsela indicated that adults taking care of a minor child does not render them as “family” as contemplated in Article 14 of the constitution. 

“This is principally because of the meaning it attaches to the ‘right to marry’ and the concept of ‘marriage’ in Article 14,” continued Madonsela. 

Judge Sibeya asked Madonsela what the court should pay attention to, bearing in mind that he comes from South Africa, where same-sex couples can marry. 

Madonsela replied that although it is good to recognise same-sex marriages, there is a need to have proper legislative reform. He added that South Africa is still having legal issues with same-sex marriages.

2021-05-21  Maria Sheya

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