Five judges of Namibia’s apex court yesterday overturned a High Court ruling that did not recognise same-sex marriages concluded in foreign territory. Chief Justice Peter Shivute, who wrote the majority judgment with Deputy Chief Justice Petrus Damaseb, as well as justices of appeal Dave Smuts and Elton Hoff concurring, and Justice Sylvester Mainga dissenting, ordered the Minister of Home Affairs and Immigration to recognise the marriages between same-sex couples conducted in foreign countries.

This came after same-sex couples Matsobane Digashu and Johann Hendrik Potgieter, as well as Anita Elfriede Seiler-Lilles and her wife Annette Seiler asked the ministry of home affairs to recognise their marriages but it was refused.

Digashu, who hails from South Africa, and Seiler-Lilles from Germany then approached the High Court to order the ministry of home affairs to recognise their marriages. The High Court dismissed the application on the basis that they are not permitted to decide on an issue that was already determined by the Supreme Court in what was called the “Frank Judgment”.

In that decision, the Supreme Court found that a marriage contemplated by Article 4(3) of the Namibian Constitution meant a marriage between a man and a woman, and not a homosexual or lesbian relationship. The High Court, while criticising that judgment, held that it did not have the power to override it. Digashu and Seiler-Lilles then approached the Supreme Court to rectify the situation.

In its current judgment, the Supreme Court expressed their disapproval of the “Frank Judgment”, which defined that a marriage can only be between and man and a woman.

According to them, the Constitution – although not in so many words – does allow for same-sex marriages.   “The purpose of prohibiting discrimination in Article 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,” judge Shivute stated.  He went on to say that the unfairness of discrimination is thus 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, as well as their dignity impaired.

“The impact of the differation upon Mr Digashu and Ms Seiler-Lilles (as spouses in a same-sex marriage) is far-reaching and potentially devastating when compared to spouses in a heterosexual marriage,” the Supreme Court Judges stressed.

According to them, instead of being entitled to cohabit in Namibia with their Namibian spouse, they are required to apply for permits to remain in Namibia.  “We accordingly conclude that the approach of the ministry to exclude spouses, including Mr Digashu and Ms Seiler-Lilles, invalidly concluded same-sex marriage from the purview of section 2(1) of the Act infringes both their interrelated rights to dignity and equality,” the appeal judges stated.

In the end, the Supreme Court upheld the appeal by Digashu and Seiler-Lilles with costs to include the costs of one instructing and two instructed counsel.

They ordered that the ministry is directed to recognise the civil marriages of Digashu and Potgieter concluded in South Africa and that Digashu is declared a spouse in terms of the Immigration Control Act.

Further, the child they are in the process of adopting is declared a dependant child. With regards to Seiler and Seiler-Lilles, the Supreme Court ordered that their marriage concluded in Germany is recognised by the ministry, and that Seiler-Lilles is declared a spouse as envisaged in the Immigration Control Act.

The applicants were represented by Advocate Raymond Heathcote, assisted by Advocate J Jacobs and instructed by Schickerling Attorneys, and the government by Advocate Thandazani Madonsela, assisted by Tuhafeni Muhongo and instructed by the Government Attorney.  -rrouth@nepc.com.na