Brief Summary

Constitutional Law — Discrimination — Same-sex partnerships — Applicant challenged the constitutionality of sections 9 and 10 of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001, which conferred benefits only to spouses of judges, excluding permanent same-sex life partners. The High Court had previously declared similar provisions in the 1989 Act unconstitutional. The Minister of Justice did not oppose the application for direct access to the Constitutional Court. The Court held that the exclusion of same-sex life partners from benefits is unfairly discriminatory and inconsistent with the Constitution, granting the applicant the relief sought.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for direct access to the Constitutional Court. The applicant, Kathleen Margaret Satchwell, sought substantive constitutional relief against the President of the Republic of South Africa (first respondent) and the Minister of Justice and Constitutional Development (second respondent).

The application followed earlier litigation in which the applicant had successfully challenged provisions of the Judges’ Remuneration and Conditions of Employment Act 88 of 1989 and associated 1995 regulations in the Pretoria High Court, on the basis that they unfairly discriminated by conferring benefits on spouses of judges but not on permanent same-sex life partners. The High Court’s order of constitutional invalidity required confirmation by the Constitutional Court. On 25 July 2002, the Constitutional Court confirmed that earlier order (with slight variations).

After the confirmation judgment, the Chief Justice drew the parties’ attention to the fact that the 1989 Act and the 1995 regulations had been repealed and replaced by the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 and new regulations promulgated in Government Notice R894 of 5 July 2002. The replacement legislation continued to confer the relevant benefits only on “spouses”, with the consequence that the applicant did not obtain effective practical relief from the July 2002 confirmation order. The applicant therefore returned to the Constitutional Court to challenge the corresponding provisions in the 2001 Act and 2002 regulations.

The general subject-matter of the dispute was whether the continued conferral of specified judges’ benefits on spouses only, to the exclusion of permanent same-sex life partners in which the partners have undertaken reciprocal duties of support, constituted unfair discrimination inconsistent with the Constitution, and what remedy was appropriate.

2. Material Facts

It was common cause that the applicant had previously obtained constitutional relief in respect of the 1989 Act and the 1995 regulations, and that the Constitutional Court had confirmed that relief in 2002. It was also undisputed that the relevant statutory framework had since changed: the 1989 Act was replaced by the 2001 Act (effective 22 November 2001), and the 1995 regulations were replaced by 2002 regulations published on 5 July 2002.

A further undisputed fact was that, despite the change in legislation, the relevant benefits under the 2001 Act and 2002 regulations remained limited to a judge’s “spouse”, and did not extend to a judge’s permanent same-sex life partner, even where the partners had undertaken reciprocal duties of support. The Court recorded that the principal difference between the earlier and replacement legislation, for present purposes, was that the later framework expressly included Constitutional Court judges within its scope.

No dispute of fact arose on the papers. The second respondent did not oppose the application and indicated that he did not intend to object to the applicant’s amendment of her notice of motion. The absence of opposition formed part of the context relevant to the Court’s decision on direct access.

In relation to the challenge to regulation 13(2) of the 2002 regulations, the Court accepted the applicant’s explanation that this provision had not been challenged in the earlier litigation due to an oversight, but that it had been challenged in both the original and amended notice of motion in the present direct access proceedings. The Court also accepted that the applicant had sufficient standing to challenge regulation 13(2) because High Court judges are eligible for permanent and acting appointments to the courts to which the regulation applied.

3. Legal Issues

The Court was required to determine, first, whether direct access should be granted under Rule 17, which in turn required an evaluation of whether it was in the interests of justice (and typically whether exceptional circumstances existed) for the Constitutional Court to hear the matter as a court of first and final instance.

Secondly, the Court had to decide the constitutional validity of the impugned provisions, namely sections 9 and 10 of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001, and regulations 12(2) and 13(2) of the 2002 regulations, insofar as they conferred benefits on a judge’s spouse while omitting permanent same-sex life partners in reciprocal-duty-of-support relationships.

Thirdly, the Court had to decide the appropriate remedy, specifically whether to grant relief in the form of a declaration of constitutional inconsistency coupled with a reading-in of additional words after “spouse”, and from what effective date such relief should operate.

The issues were predominantly questions of law, and the application of established constitutional principles to an essentially common-cause factual and legislative setting, rather than any factual dispute. The direct-access question involved a discretionary interests-of-justice assessment.

4. Court’s Reasoning

Direct access and jurisdictional posture

The Court addressed the applicant’s initial formulation of relief as a request to “vary” the earlier Constitutional Court order. Relying on Minister of Justice v Ntuli [1997] ZACC 7; 1997 (3) SA 772 (CC); 1997 (6) BCLR 677 (CC), the Court reiterated that the power to vary the Court’s own orders is exercised sparingly and only in appropriate cases.

The Court reasoned that the matter could not properly be characterised as a variation of the earlier confirmation order. Confirmation proceedings under section 172(2)(a) of the Constitution and Rule 15 are concerned with legislation (or presidential conduct) that has been declared unconstitutional by a High Court or the Supreme Court of Appeal. The present application, however, concerned different legislative provisions—those of the 2001 Act and 2002 regulations—which had not been declared invalid by a High Court. The Court held that considering statutory provisions other than those declared invalid below constituted a different exercise from confirmation, and therefore could not be achieved through “varying” the confirmation order.

Accordingly, the Court held that the only basis on which it could decide the constitutionality of the challenged provisions was by granting direct access for substantive relief. The applicant’s subsequent amendment of the notice of motion to seek direct constitutional declarations and reading-in relief was therefore treated as appropriate.

Applying Rule 17, the Court emphasised that direct access is granted only where it is in the interests of justice, and that exceptional circumstances are ordinarily required. It identified relevant factors from its jurisprudence, including whether disputes of fact might arise, whether other courts have traversed the issues, the attitude of other parties, the availability of relief elsewhere, the importance of the issues, and the desirability of an immediate decision—while recognising the general undesirability of the Constitutional Court acting as both court of first and final instance.

On these factors, the Court concluded that direct access was warranted. It emphasised that the issues were materially the same as those already considered in the earlier Satchwell litigation; the respondents did not oppose the relief; no factual disputes existed; and refusing direct access would cause inconvenience and delay, depriving the applicant of effective relief despite the earlier successful challenge. These considerations cumulatively satisfied the interests-of-justice standard.

Constitutional complaint and application of prior reasoning

Turning to the merits, the Court set out the relevant text of sections 9 and 10 of the 2001 Act, which provided post-service and post-death benefits to the surviving spouse of a judge (including, under the new Act, Constitutional Court judges). It noted the applicant’s contention that the provisions were unfairly discriminatory because they excluded permanent same-sex life partners who had undertaken reciprocal duties of support.

The Court regarded the difference between the earlier successfully challenged provisions and the replacement provisions as not material to the constitutional analysis, save for the expanded coverage to include Constitutional Court judges. For the same reasons given in the prior Constitutional Court judgment in Satchwell v President of the Republic of South Africa and Another [2002] ZACC 18; 2002 (6) SA 1 (CC); 2002 (9) BCLR 986 (CC), the failure to extend these benefits to permanent same-sex life partners in reciprocal-duty-of-support relationships constituted unfair discrimination, and the Court stated that there was no justification for that discrimination. On that basis, the applicant was entitled to substantive relief in respect of sections 9 and 10.

The Court then considered regulation 12(2) of the 2002 regulations, which similarly limited travel and subsistence benefits on official journeys to a judge’s spouse. The Court observed that the constitutional deficiency identified in the earlier litigation persisted: the replacement regulation still did not cover permanent same-sex life partners, and therefore “suffer[ed] from the same constitutional complaint” and warranted the same intervention.

Finally, the Court addressed regulation 13(2), which applied to travel in circumstances relevant to Constitutional Court judges and Supreme Court of Appeal judges (and acting judges in those courts). The Court noted that the provision had not been challenged earlier due to oversight, but had been challenged in the present proceedings and served on the Minister, who did not oppose. The Court reasoned that the same constitutional complaint applied: the regulation conferred benefits on spouses but not on qualifying same-sex life partners. Although the regulation applied to particular courts, the Court accepted that High Court judges are eligible for appointment to those courts and that the applicant therefore had sufficient standing. The challenge to regulation 13(2) accordingly had to succeed for the same reasons.

Remedy

The Court held that an order substantially similar to the order made in the earlier judgment was appropriate. It adopted a remedy of reading-in, declaring unconstitutional the omission of words extending the benefits beyond “spouse”, and ordering that the relevant statutory and regulatory provisions be read as though the additional words appeared after “spouse”.

The Court recorded that the applicant did not seek costs, and it made no costs order.

5. Outcome and Relief

The Constitutional Court granted direct access and upheld the constitutional challenge. It declared that the omission, 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” in sections 9 and 10 of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001, and in regulations 12(2) and 13(2) of the 2002 regulations (GN R894 of 5 July 2002), was inconsistent with the Constitution.

With effect from the date of the order, the Court directed that sections 9 and 10 of the 2001 Act, and regulations 12(2) and 13(2) of the 2002 regulations, must be read as though the above words appear after the word “spouse”.

No order as to costs was made, as the applicant did not request costs.

Cases Cited

Satchwell v President of the Republic of South Africa and Another 2001 (12) BCLR 1284 (T).

Satchwell v President of the Republic of South Africa and Another [2002] ZACC 18; 2002 (6) SA 1 (CC); 2002 (9) BCLR 986 (CC).

Minister of Justice v Ntuli [1997] ZACC 7; 1997 (3) SA 772 (CC); 1997 (6) BCLR 677 (CC).

African National Congress v United Democratic Movement and Others (Krog and others intervening) [2002] ZACC 24; 2003 (1) SA 533 (CC); 2003 (1) BCLR 1 (CC).

Ex parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local Council [2001] ZACC 21; 2001 (4) SA 1288 (CC); 2001 (8) BCLR 765 (CC).

Van der Spuy v General Council of the Bar of South Africa and Others [2002] ZACC 17; 2002 (5) SA 392 (CC); 2002 (10) BCLR 1092 (CC).

Bruce and Another v Fleecytex Johannesburg CC and Others [1998] ZACC 3; 1998 (2) SA 1143 (CC); 1998 (4) BCLR 415 (CC).

Brink v Kitshoff NO [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC).

Besserglik v Minister of Trade, Industry and Tourism and Others (Minister of Justice intervening) [1996] ZACC 8; 1996 (4) SA 331 (CC); 1996 (6) BCLR 745 (CC).

S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 172(2)(a)).

Judges’ Remuneration and Conditions of Employment Act 88 of 1989.

Judges’ Remuneration and Conditions of Employment Act 47 of 2001.

Supreme Court Act 59 of 1959.

Rules of Court Cited

Constitutional Court Rule 15.

Constitutional Court Rule 17.

Held

The Court held that it was in the interests of justice to grant direct access because the issues were effectively identical to those already determined in earlier litigation between the same parties, there were no disputes of fact, the respondents did not oppose, and refusing direct access would cause undue delay and deny the applicant effective relief.

On the merits, the Court held that the failure of sections 9 and 10 of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 and regulations 12(2) and 13(2) of the 2002 regulations to extend specified benefits beyond “spouse” to include a judge’s permanent same-sex life partner (where the partners have undertaken reciprocal duties of support) constituted unfair discrimination and was unconstitutional for the reasons already given in the Court’s earlier Satchwell judgment.

The Court held that the appropriate remedy was a declaration of inconsistency coupled with reading-in of words extending the benefits to qualifying permanent same-sex life partners, operative from the date of the order, and it made no costs order.

LEGAL PRINCIPLES

Direct access under Rule 17 is granted only where it is in the interests of justice, and ordinarily requires exceptional circumstances; relevant considerations include the presence or absence of factual disputes, whether other courts have considered the issues, the stance of other parties, alternative avenues for relief, the importance of the legal issues, and the desirability of an immediate decision, against the background concern that the Constitutional Court should not generally be a court of both first and final instance.

The Constitutional Court’s power to vary its own orders is exercised sparingly and only in appropriate cases; confirmation proceedings under section 172(2)(a) and Rule 15 are confined to confirming invalidity found by a High Court or the Supreme Court of Appeal, and do not provide a procedural basis to pronounce on the constitutionality of different replacement provisions that were not declared invalid below.

Where statutory or regulatory provisions confer benefits on a judge’s spouse but omit equivalent recognition of a judge’s permanent same-sex life partner in a relationship where reciprocal duties of support are undertaken, and where that exclusion has been found to constitute unfair discrimination without justification, the appropriate constitutional remedy may include a declaration that the omission is unconstitutional and an order that the provision be read in to include the additional class, with effect from the date of the order.

Satchwell v President of the Republic of South Africa and Another (CCT48/02) [2003] ZACC 2; 2003 (4) SA 266 (CC); 2004 (1) BCLR 1 (CC) (17 March 2003)