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[2002] ZACC 18
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Satchwell v President of Republic of South Africa and Another (CCT45/01) [2002] ZACC 18; 2002 (6) SA 1; 2002 (9) BCLR 986 (25 July 2002)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                        Â
Case
CCT 45/01
KATHLEEN MARGARET
SATCHWELL                                                              Â
Applicant
versus
THE PRESIDENT OF
THE REPUBLIC OF                                                                            Â
SOUTH AFRICA                                                                                           Â
First
Respondent
and
THE MINISTER OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT                                                   Second
Respondent
Heard on         :           26 February
2002
Decided on     :           25 July 2002
JUDGMENT
MADALA J:
Introduction
[1]
       Sitting in the
Pretoria High Court, Kgomo J made the following order in favour of the
applicant:
1
“1.        Declaring the omission from sections 8 and 9 of the Judges
Remuneration and Conditions of Employment Act 88 of
1989 after the word ‘spouse’
of the words ‘or partner, in a permanent same-sex life partnership’ to be
inconsistent with
the Constitution of the Republic of South Africa Act 108 of
1996.
2.                   Declaring
the omission from Regulation 9(2)(b) and Regulation 9(3)(a) of the Regulations
in
respect of ‘Judges, Administrative Recesses, Leave, Transport and Allowances
in respect of Transport, Travelling and Subsistence’
(GNR839, 6 June 1995)
after the word ‘spouse’ of the words ‘or partner, in a permanent same-sex life
partnership’ to be inconsistent
with the Constitution of the Republic of South
Africa Act 108 of 1996.
3.       It is ordered
that sections 8 and 9 of the Judges’ Remuneration and Conditions of Employment
Act 88 of 1989 is to
be read as though the following words appear therein after
the word ‘spouse’: ‘or partner, in a permanent same-sex life partnership’.
4.       It is ordered
that Regulation 9(2)(b) and Regulation 9(3)(a) of the Regulations in respect of
‘Judges, Administrative
Recesses, Leave, Transport and Allowances in respect of
Transport, Travelling and Subsistence’ (GNR839, 6 June 1995) is to be read
as
though the following words appear therein after the word ‘spouse’: ‘or partner,
in a permanent same-sex life partnership’.
5.       It is ordered
that the respondents pay the costs of the application jointly and severally.”
[2]
       In terms of section
172(2)(a)
2
of the Constitution, an order of constitutional invalidity
in the High Court has no force and effect unless it has been confirmed
by this
Court.  It is the confirmation of that order which is sought by the applicant
in these proceedings.  Sections 172(2)(a)
and 167(5)
3
mandate this Court to
make orders in relation to the constitutional validity of an “Act of
Parliament, a provincial Act or any
conduct of the President.”  This court is
directly concerned only with the validity of paragraphs 1 and 3 thereof.  As
paragraphs
2 and 4 relate to regulations, confirmation of the declaration of
invalidity in relation to them is not required.
4
Factual Background
[3]
       The applicant, a
judge, challenged the constitutional validity of the provisions of sections 8
and 9 of the Judges’
Remuneration and Conditions of Employment Act 88 of 1989
(the Act) and Regulations 9(2)(b) and 9(3)(a) of the Regulations in respect
of
Judges Administrative Recesses, Leave, Transport and Allowances in respect of
Transport, Travelling and Subsistence (the regulations).
5
[4]
       The applicant
stated that she and Ms Lesley Louise Carnelley (Ms Carnelley) have been
involved in an intimate, committed,
exclusive and permanent relationship since
about 1986.  Although not married (in terms of South African law they are
unable to enter
into a valid marriage), they live in every respect as a married
couple and are acknowledged as such by their respective families
and friends.
[5]
       As evidence of
their emotional and financial inter-dependence, the applicant stated that:
1.         She and Ms Carnelley had completed last wills and testaments
in each other’s favour.
2.         In May 1990 they jointly purchased the property on which they
currently reside and which is registered in their
names;
3.         They live together on this property and consider it to be a
family residence;
4.         Ms Carnelley is listed as the beneficiary in all the
applicants’ insurance and other investment policies; and
5.         Ms Carnelley is also listed as the applicants’ dependant on
Parmed, the Parliamentary Medical Aid Scheme, to
which judges subscribe.
[6]
       The applicant’s
conditions of service as a judge are governed by:
1.         the provisions of the Constitution;
2.         the provisions of the Act;
3.         the regulations; and
4.         the Parliamentary and Provincial Medical Aid Scheme Act 28 of
1975.
[7]
       The challenged
provisions are as follows:
1.         Section 8
6
of the Act provides for
the payment to the surviving spouse of a deceased judge two-thirds of the
salary that would have been payable
to that judge in terms either section 5 or
section 3(1)(a) of the Act until the death of such spouse.
2.         Section 9
7
of the Act provides for
the payment of the gratuity contemplated in section 6 of the Act to the
surviving spouse of a deceased judge
or to the estate of the said judge if he
or she is not survived by a spouse.
[8]
The
applicant engaged in lengthy correspondence dating from 1997 with the second
respondent in an attempt to have the Act and the
regulations amended so that
her partner could be entitled to the benefits that spouses of judges receive.Â
The second respondent
conceded that the provisions under attack were
discriminatory, and said that he was committed to upholding “the principles and
values of the Constitution” and to removing the discrimination complained of by
the applicant.  The second respondent implored
the applicant to be patient as
he intended to redress the situation and to effect the necessary changes.Â
After waiting for two
years the applicant decided to launch an application in
the Pretoria High Court, the culmination of which are the present proceedings.
The Constitutional Issue
[9]
At
issue in this case is the question whether the claim by the applicant that Ms
Carnelley should be entitled to the benefits enjoyed
by the spouses of judges
under the Act should be sustained.  The Act restricts the provision of certain
benefits to spouses only.Â
There is no definition of the word “spouse” in the
provisions under attack.  In the circumstances the ordinary wording of the
provisions must be taken to refer to a party to a marriage that is recognised
as valid in law and not beyond that.  This matter
was dealt with in the
National
Coalition v Home Affairs
8
case where this Court held that the word “spouse” cannot be
read to include a same-sex partner.  The context in which “spouse”
is used in
the impugned provisions does not suggest a wider meaning, nor do I know of
one.  Accordingly, a number of relationships
are excluded, such as same-sex
partnerships and permanent life partnerships between unmarried heterosexual
cohabitants.
[10]
The
legislation has effectively excluded all those in relationships other than
heterosexual marriages from the benefits it accords
to spouses.  The question
that arises is whether to the extent that the Act restricts benefits to
spouses, and does not afford them
to same-sex life partners, it is inconsistent
with the Constitution.
[11]
In
this regard the applicant argued that the concept of family underlying the
legislation was inconsistent with the values espoused
by the Constitution.Â
Reliance was placed on the judgment of L’Heureux-Dubé J in the Canadian Supreme
Court case of
Miron v Trudel
9
that:
“Family means
different things to different people, and the failure to adopt the traditional family
form of marriage may stem from
a multiplicity of reasons – all of them equally
valid and all of them equally worthy of concern, respect, consideration, and
protection
under the law.”
[12]
That
there are different forms of life partnership has been recognised by this
Court.  In the
National Coalition v Home Affairs
1
0
case this Court stated
that:
“ . . .
marriage represents but one form of life partnership.  The law currently only
recognises marriages that are conjugal relationships
between people of the
opposite sex.  It is not necessary, for purposes of this judgment, to
investigate other forms of life partnership.Â
Suffice it to say that there is
another form of life partnership which is different from marriage as recognised
by law.  This form
of life partnership is represented by a conjugal
relationship between two people of the same-sex.  The law currently does not
recognise
permanent same-sex life partnerships as marriages.  It follows that s
25(5) affords protection only to conjugal relationships between
heterosexuals
and excludes any protection to a life partnership which entails a conjugal
same-sex relationship, which is the only
form of conjugal relationship open to
gays and lesbians in harmony with their sexual orientation.”
1
1
In certain African
traditional societies woman-to-woman marriages are not unknown, this being
prevalent in families that are childless
because the woman is barren or where
the woman is in a powerful position in her community, like being a queen or a
chieftainness,
or where she is very wealthy.
1
2
[13]
In
respect of the family, this Court
1
3
has stated that:
“The
importance of the family unit for society is recognised in the international
human rights instruments referred to above when
they state that the family is
the ‘natural’ and ‘fundamental’ unit of our society.  However, families come in
many shapes
and sizes.  The definition of the family also changes as social
practices and traditions change.
1
4
  In recognising the
importance of the family, we must take care not to entrench particular forms of
family at the expense of other
forms.”
This observation was
prefaced by the following important comment:
“The
institutions of marriage and the family are important social institutions that
provide for the security, support and companionship
of members of our society
and bear an important role in the rearing of children.  The celebration of a
marriage gives rise to moral
and legal obligations, particularly the reciprocal
duty of support placed upon spouses and their joint responsibility for
supporting
and raising children born of the marriage.  These legal obligations
perform an important social function.  This importance is symbolically
acknowledged in part by the fact that marriage is celebrated generally in a
public ceremony, often before family and close friends.”
[14]
The
challenged provisions, the applicant contended, violated her right to equality
in terms of section 9 of the Constitution because
they denied her and Ms
Carnelley certain specified benefits that are generally afforded to judges and
their spouses.  The basis
of the alleged unconstitutionality, she further
argued, was the omission from the impugned provisions of the words “or partner
in a permanent, same-sex life partnership.”  In the High Court she contended
that the impugned provisions should be declared to
be inconsistent with the
Constitution and invalid and in the alternative that words should be read in to
bring the provisions into
conformity with the Constitution.  In this Court
however she sought confirmation of the order made by the High Court which was
limited
to reading in the words that have been referred to us.  It was argued
on behalf of the applicant both in the High Court and before
us that the
provisions under attack discriminated unfairly against gay and lesbian couples
involved in committed relationships who
may not marry.
[15]
In
this Court the respondents’ counsel conceded without qualification, correctly
in my view, that permanent same-sex life partners
are entitled to found their
relationships in a manner which accords with their sexual orientation and
further that such relationships
ought not to be the subject of unfair
discrimination.  But the respondents submitted that the order recognising only
the rights
of permanent same-sex life partners was itself invalid because it
failed to make provision for unmarried heterosexuals in permanent
relationships.  This submission has no merit in this case.  Here we are
concerned with same-sex relationships.
[16]
Same-sex
partners cannot be lumped together with unmarried heterosexual partners without
further ado.  The latter have chosen to
stay as cohabiting partners for a
variety of reasons, which are unnecessary to traverse here, without marrying
although generally
there is no legal obstacle to their doing so.  The former
cannot enter into a valid marriage.  In my view it is unnecessary to
consider
the position of heterosexual partners in this case.  As was stated by this
Court in the
National Coalition v Home Affairs
1
5
case, the submission by
the respondents that:
“ . . . gays
and lesbians are free to marry in the sense that nothing prohibits them from
marrying persons of the opposite sex,
is true only as a meaningless
abstraction.”
It is quite inappropriate
in these confirmation proceedings for this Court to decide on the rights of
unmarried heterosexual life
partners which raise quite different legal and
factual issues.  This matter was raised by the respondents in this Court for the
first time in their written submissions and it is, therefore, not appropriate
for the Court to consider it.
The Fundamental Rights
Affected by the Challenged provisions
[17]
I now
turn to consider the specific rights which are affected by the impugned
provisions.  The applicant’s challenge is based on
the equality clause in the
Constitution.  Throughout the Constitution there is a constant refrain that the
achievement of equality
for all South Africans and the advancement of human
rights are important values to strive towards.  As this Court stated it in the
President
of the Republic of South Africa and Another v Hugo
:
1
6
“At the heart
of the prohibition of unfair discrimination lies a recognition that the purpose
of our new constitutional and democratic
order is the establishment of a
society in which all human beings will be accorded equal dignity and respect
regardless of their
membership of particular groups.  The achievement of such a
society in the context of our deeply inegalitarian past will not be
easy, but
that that is the goal of the Constitution should not be forgotten or
overlooked.”
[18]
In
Fraser
v Children’s Court, Pretoria North and Others
,
1
7
this Court further emphasized that:
“There can be
no doubt that the guarantee of equality lies at the very heart of the
Constitution.  It permeates and defines the
very ethos upon which the
Constitution is premised.”
1
8
[19]
Section
9 (the equality clause) states the following:
“(1)      Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)        . . . .
(3)        The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including
race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience,
belief, culture, language and birth.
(4)        . . . .
(5)        Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination is
fair.”
[20]
In
Harksen
v Lane
1
9
this Court set out the stages of enquiry in a case involving the fundamental
right to equality and which bear repeating here, that:
“it may be as
well to tabulate the stages of enquiry which become necessary where an attack
is made on a provision in reliance on
section 8 of the interim Constitution.Â
They are:
(a)        Does the provision differentiate between people or categories
of people?  If so, does the differentiation bear
a rational connection to a
legitimate government purpose?  If it does not then there is a violation of
section 8(1).  Even if it
does bear a rational connection, it might
nevertheless amount to discrimination.
(b)        Does the differentiation amount to unfair discrimination?Â
This requires a two stage analysis:
(i)         Firstly, does the differentiation amount to ‘discrimination’?Â
If it is on a specified ground, then discrimination
will have been
established.  If it is not on a specified ground, then whether or not there is
discrimination will depend upon whether,
objectively, the ground is based on
attributes and characteristics which have the potential to impair the
fundamental human dignity
of persons as human beings or to affect them
adversely in a comparably serious manner.
(ii)        If the differentiation amounts to ‘discrimination’, does it
amount to ‘unfair discrimination’?  If it
has been found to have been on a
specified ground, then unfairness will be presumed.  If on an unspecified
ground, unfairness will
have to be established by the complainant.  The test of
unfairness focuses primarily on the impact of the discrimination on the
complainant and others in his or her situation. If, at the end of this stage of
the enquiry, the differentiation is found not to
be unfair, then there will be
no violation of seciton 8(2).
(c)        If the discrimination is found to be unfair then a
determination will have to be made as to whether the provision
can be justified
under the limitations clause (section 33 of the interim Constitution).”
[21]
This
Court has now confirmed this approach to the stages of equality analysis on
several occasions.
2
0
  Applying the Harksen test to the facts of the
present case it becomes clear that the denial of benefits to same-sex partners
while
affording them to married judges is, in effect, a differentiation on the
grounds of sexual orientation which is a listed ground in
section 9.  That denial
accordingly amounts to discrimination which is presumed, in terms of section
9(5), to be unfair unless the
contrary is shown.  It was not suggested by the
respondent that this discrimination is not unfair.
[22]
The
benefits accorded to spouses of judges by the legislation are accorded to them
because of the importance of marriage in our society
and because judges owe a
legal duty of support to their spouses.  In terms of our common law, marriage
creates a physical, moral
and spiritual community of law which imposes
reciprocal duties of cohabitation and support.  The formation of such
relationships
is a matter of profound importance to the parties, and indeed to
their families and is of great social value and significance.Â
However, as I
have indicated above, historically our law has only recognised marriages
between heterosexual spouses.  This narrowness
of focus has excluded many
relationships which create similar obligations and have a similar social value.
[23]
Inasmuch
as the provisions in question afford benefits to spouses but not to same-sex
partners who have established a permanent life
relationship similar in other
respects to marriage, including accepting the duty to support one another, such
provisions constitute
unfair discrimination.
[24]
I
should emphasise however that section 9 generally does not require benefits
provided to spouses to be extended to all same-sex partners
where no reciprocal
duties of support have been undertaken.  The Constitution cannot impose
obligations towards partners where those
partners themselves have failed to
undertake such obligations.
[25]
The
law attaches a duty of support to various family relationships, for example, husband
and wife, and parent and child.  In a society
where the range of family
formations has widened, such a duty of support may be inferred as a matter of
fact in certain cases of
persons involved in permanent, same-sex life
partnerships.  Whether such a duty of support exists or not will depend on the
circumstances
of each case.  In the present case the applicant and Ms Carnelley
have lived together for years in a stable and permanent relationship.Â
They
have been accepted and recognised as constituting a family by their families
and friends and have shared their family responsibilities.Â
They have made
financial provision for one another in the event of their death.  It appears
probable that they have undertaken reciprocal
duties of support.  However, that
is a question we need not decide now.  The applicant’s challenge is to the
legislation.  For
the reasons given, the legislation does discriminate against
persons such as the applicant on the basis of sexual orientation.
Justification
[26]
The
question here is whether the challenged provisions, having been found to be
inconsistent with the Constitution can nevertheless
be saved by the limitation
clause.
2
1
The respondents who bear
the onus of establishing that the said provisions are reasonable and
justifiable in an open and democratic
society based on human dignity, equality
and freedom did not seek to justify such discrimination.  In this Court indeed
they correctly
conceded that the discrimination was unfair and unjustifiable.
Remedy
[27]
Having
come to the conclusion that the impugned provisions are inconsistent with and
cannot be saved in terms of section 36 of the
Constitution, I must now consider
whether the terms of the order made by the High Court were appropriate and
should be confirmed.Â
Section 172(1)(b)
2
2
requires that this Court, when
deciding a constitutional matter within its power, may make any order that is
just and equitable.Â
The High Court made an order reading in the following
words “or partner in a permanent same-sex life partnership”
after the word “spouse” in sections 8
and 9 of the Act and in Regulations 9(2)(b) and 9(3)(a).  Reading in is a
competent constitutional
order as found in
National Coalition v Home Affairs
case.
2
3
[28]
The
respondents submitted that the proper remedy, regard being had to the intention
of the legislature, was as follows:
“It is hereby
declared that the word ‘spouse’ in the challenged provisions is
unconstitutional to the extent that it excludes
partners in heterosexual or
same-sex relationships that are intended to be lasting as in marriage
relationships.”
We were advised that the
legislature intends to amend the challenged provisions
2
4
and that the text of the Amendment Bill provides
that:
-the benefit
covers same-sex partners and heterosexual partners;
-to be
afforded benefits, the partnership must be intended to be lasting relationships
as is the case with a marriage relationship;
and
-the relationship
must be registered with the Director-General: Justice and Constitutional
Development.
It was submitted by the
respondents that the order of the court a quo did not reflect the clear
intention of the legislature.  As
the order reads, so it was argued, it does
not address like-placed unmarried heterosexuals and does not require
registration, as
is intended in the Amendment Bill.  However, in determining
the appropriate remedy, we cannot have regard to the contents of a bill.
[36]
     The move to amend the
legislation is to be welcomed as a step to ameliorate the position of same-sex
life partners.  It
is also an acceptance that times have changed as has
society’s attitude which once was hostile to the gay and lesbian community
generally and frowned upon them and considered them to be deviant members of
society not worthy of protection and respect under the
law.
[37]
     The respondents
claimed that the relief granted by the court a quo to the applicant is
constitutionally impermissible in
that the order does not respect the
guidelines spelt out in the
National Coalition v Home Affairs
2
5
case.  The order, it was
submitted, is itself unconstitutional because it excludes heterosexual
partners.  Accordingly the order
of the court a quo offends the equality
principles in section 9, read with sections 2 and 8 of the Constitution.  We
have already
rejected this submission above.
2
6
[38]
     According to the
second respondent the basic reason for the failure to make the necessary
amendments is the complexity of
the matters involved and the fact that he did
not want to deal piecemeal with the amendments but wanted to include persons in
other
partnerships such as heterosexual partners who were not married.  The
fact that there is at present no enforceable reciprocal duty
of support between
heterosexual unmarried couples and people in same-sex partnerships was another
issue.  Added to these problems
was the as yet unsettled question of when and
how to regard a partnership as permanent and when it began and ceased.  All in
all,
the respondents sought to resolve, once and for all, not only the
applicant’s problem but to bring into the fold heterosexual unmarried
partnerships.
[39]
     It is significant
that while these difficulties are put forward as accounting for the failure to
effect the required amendments
there is a growing number of statutes
2
7
which, acknowledging the
social realities of our changing times now account for “partners” and address
precisely the type of
problem faced and the relief claimed by the applicant in
this case.
[40]
     This Court is not at
large to grant any relief under its power to grant “appropriate relief” – it
cannot import matters
that are remote to the case in question – otherwise it
will be intruding too far into the legislative sphere.  The intended
accommodation
of heterosexuals cannot be introduced via the backdoor into this
case.  It was not properly before us, nor did we hear argument
on the
complexities involved.
[41]
     In my view the order
by the High Court reading in the words “or partner
in a permanent same-sex life
partnership” to remedy the constitutional wrong that is in the impugned
provisions, omits an important
requirement.  It fails to have regard to the
requirement of a reciprocal duty of support.  That is addressed in the order I
make.Â
Such partners must have undertaken and committed themselves to
reciprocal duties of support.  The remedy of reading in is far more
preferable
to an order striking down and suspending such declaration which would not
afford the applicant the relief she seeks.
[42]
     As mentioned above,
regulations are not ordinarily the subject of confirmation proceedings.Â
However, in this case the regulations
are intricately linked to the impugned
provisions which are the subject of these confirmation proceedigns.  The
remedial order that
was made by the High Court in respect of such regulations
mirrored the order made in respect of the Act and was based on the same
legal
conclusions.  It is appropriate relief therefore that the High Court’s order in
respect of the regulations also be amended
to bring it into line with the order
we make in respect of the Act.
[43]
     The appellant asked
for costs if her application for confirmation was opposed.  As she is, in my
view, the successful party,
I can see no reason why she should not be awarded
costs as prayed.
[44]
     I accordingly make
the following order:
1.         The whole order granted in the High Court by Kgomo J is hereby
set aside.
2.         The following order is substituted therefor:
2.1.      With effect from the date of this order it is declared that the
omission from sections 8 and 9 of the Judges’ Remuneration
and Conditions of
Employment Act 88 of 1989 after the word “spouse” of the words “or partner, in
a permanent same-sex life
partnership in which the partners have undertaken
reciprocal duties of support” is inconsistent with the Constitution;
2.2.      With effect from the date of this order, sections 8 and 9 of
the Judges’ Remuneration and Conditions of Employment
Act, 88 of 1989 are to be
read as though the following words appear therein after the word “spouse” – “or
partner in a permanent
same-sex partnership in which the partners have
undertaken reciprocal duties of support.”
2.3       With effect from the date of this order, it is declared that
the omission from regulations 9(2)(b) and 9(3)(a) of
the Judges’ Remuneration
and Conditions of Employment Act, 88 of 1989 after the word “spouse” of the
words “or partner in
a permanent same-sex partnership in which the partners
have undertaken reciprocal duties of support” is inconsistent with the
Constitution.
2.4.      With effect from the date of this order, Regulations 9(2)(b)
and 9(3)(a) of the Judges’ Remuneration and Conditions
of Employment Act, 88 of
1989 are to be read as though the following words appear therein after the word
“spouse” – “or partner
in a permanent same-sex partnership in which the
partners have undertaken reciprocal duties of support”.
2.5       The respondents are ordered to pay the costs of the application
in both courts.
Chaskalson CJ, Langa DCJ,
Ackermann J, Goldstone J, Kriegler J, Ngcobo J, O’Regan J, Du Plessis AJ and
Skweyiya AJ concur in the
judgment of Madala J.
For the Applicant:                 Advocate P R Jammy instructed by
Attorney Raymond Tucker, Johannesburg.
For the Respondents:            Advocate I A M Semenya and Advocate L T
Sibeko instructed by the State Attorney, Pretoria.
1
         Â
The
matter is reported as
Satchwell v President of the Republic of South Africa
and Another
2001 (12) BCLR 1284
(T).
2
         Â
Section 172(2)(a)
states:
“The Supreme
Court of Appeal, a High Court or a court of similar status may make an order
concerning the constitutional validity
of an Act of Parliament, a provincial
Act or any conduct of the President, but an order of constitutional invalidity
has no force
unless it is confirmed by the Constitutional Court.”
3
         Â
Section 167(5)
states:
“The
Constitutional Court makes the final decision whether an Act of Parliament, a
provincial Act or conduct of the President is
constitutional, and must confirm
any order of invalidity made by the Supreme Court of Appeal, a High Court, or a
court of similar
status, before that order has any force.”
4
         Â
Minister
of Home Affairs v Liebenberg
2002 (1) SA 33
(CC);
2001 (11) BCLR 1168
(CC).  See below para 41.
5
         Â
The
regulations were promulgated in Government Notice No. R839 of 6 June 1995.
6
         Â
Section
8 provides:
“(1)         Subject to the provisions of subsection
(2) the surviving spouse of a judge who on or after the fixed date
was or is
discharged from active service in terms of section 3 or 4 or who died or dies
while performing active service, shall be
paid with effect from the first day
of the month immediately succeeding the month in which he dies an amount –
(a)           in the case of a surviving spouse of a
judge who was so discharged from active service, equal to two thirds
of the
salary which was in terms of section 5 payable to that judge;
(b)           in the case of a surviving spouse of a
judge who died while performing active service as a judge, equal to
two thirds
of the amount to which that judge would have been entitled if he or she was
discharged from active service in terms of
section 3(1)(a) on the date of his
or her death.
(2)           For the purposes of subsection (1) the
amount payable to a surviving spouse shall be adjusted whenever the
salary applicable
to the office held by the judge concerned on his discharge or at his death, is
increased.
(3)           The amount payable to the surviving spouse of a judge
in terms of sub-section (1) shall be payable with effect
from the first day of
the month immediately succeeding the day on which he died, and shall be payable
until the death of such spouse.”
7
         Â
Section
9 provides:
“If a gratuity referred to in section 6 would have been payable to a
judge who died or dies on or after the fixed date had he not
died but, on the
date of his death, was discharged from active service in terms of section 3 or
4, there shall –
(a)           if such judge is survived by a
surviving spouse, be payable to such surviving spouse, in addition to any amount
payable to that spouse in terms of section 8; or
(b)           if such judge is not survived by a
spouse, be payable to the estate of such judge,
a gratuity which
shall be equal to the amount of the gratuity which would have been so payable
to such judge had he not died but was,
on the date of his death, discharged
from active service as aforesaid.”
8
         Â
National
Coalition for
Gay and Lesbian Equality and
Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1)
BCLR 39
(CC) (per Ackermann J).
9
         Â
(1995)
124 DLR (4th) 693
at para 102.
10
        Â
Above n 8
at para 36.
11
        Â
See also
Canada (Attorney-General)
v Mossop
(1993) 100 DLR (4th) 658.
12
        Â
B Oomen
Traditional Woman-to-Woman
Marriages, and the Recognition of Customary Marriages Act
 (2000)
63
THRHR
274.
13
        Â
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and Another v
Minister of Home Affairs and Others; Thomas and Another
v Minister of Home
Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8)
BCLR 837
(CC) at para 31.
14
        Â
See
National Coalition v Home
Affairs
above n 8.
15
        Â
Id at
para 38.
16
        Â
President
of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 41 (per Goldstone J).
17
        Â
Fraser
v Children’s Court, Pretoria North, and Others
1997
(2) SA 261
(CC);
1997 (2) BCLR 153
(CC) at para 20 (per Mohamed DP).
18
        Â
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
at para 33;
Shabalala
and Others v Attorney-General of Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (2) SACR 761
(CC);
1995 (12) BCLR 1593
(CC) at para 26;
S v
Makwanyane and
Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (2) SACR 1
(CC);
1995 (6) BCLR 665
at paras 155-66 (per Ackermann J) and 262 (per Mahomed J).
19
        Â
Harksen
v Lane
NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
at para 54 (per Goldstone J).
20
        Â
Hoffmann
v South African Airways
2001 (1) SA 1
(CC);
2000
(11) BCLR 1211
(CC) at para 16;
S v Manamela (Director-General of Justice
Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC);
National
Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para 17;
East
Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane Transitional Local Council and
Others
[1997] ZACC 19
;
1998 (2) SA 61
(CC);
1998 (1) BCLR 1
(CC) at para 22.
21
        Â
Section 36 provides:
“(1)         The rights in the Bill of Rights may be
limited only in terms of law of general application to the extent that
the
limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking
into account all relevant
factors, including–
                                (a)           the
nature of the right;
                                (b)           the
importance of the purpose of the limitation;
                                (c)           the
nature and extent of the limitation;
                                (d)           the
relation between the limitation and its
purpose; and
                                (e)           less
restrictive means to achieve the purpose.
(2)           Except as provided in subsection (1) or in any other
provision of the Constitution, no law may limit any right
entrenched in the
Bill of Rights.”
22
        Â
Section 172
provides:
[1]
“When deciding a
constitutional matter within its power, a court –
S
. . . .
S
may make any order that
is just and equitable, including–
(i)            an order limiting the retrospective
effect of the declaration of invalidity; and
(ii)           an order suspending the declaration of invalidity for
any period and on any conditions, to allow the competent
authority to correct
the defect.”
23
        Â
Above n
8.
24
        Â
The Judicial Officers Amendment Bill
72 of 2001, published in Government Gazette No 22 681 of 18 September 2001.
25
        Â
Id at 39.
26
        Â
See para
16.
27
        Â
See for
example,
section 6(1)(f)
of the
Independent Media Commission Act 148 of 1993
, section
5(1)(e) and (f) of the Independent Broadcasting Authority Act 153 of 1993 (now
repealed),
sections 3(7)(a)(ii)
,
3
(8) and
7
(5) of the
Lotteries Act 57 of 1997
,
section 27(2)(c)(i)
of the
Basic Conditions of Employment Act 75 of 1997
,
section 31(2)(a) of the Special Pension Act 69 of 1996,
section 1
of the
Employment Equity Act 55 of 1998
,
section 8(6)(e)(iii)(aa)
of the
Housing Act
107 of 1997
, and
sections 10(2)
and
15
(9) of the
Road Traffic Management
Corporation Act 20 of 1999
.