THE Constitutional Court on Thursday reserved judgement on whether the Pretoria High Court was right to declare certain sections of legislation on adoption “unconstitutional and invalid”.
Pretoria High Court Judge Anne-Marie de Vos and her life-partner Suzanne du Toit applied to the Constitutional Court to confirm the Pretoria High Court’s ruling that legislation preventing Du Toit from adopting De Vos’s two children was invalid.
Lawyers for the two women, who are partners in a permanent relationship and have lived together since 1989, presented a lengthy argument to a full bench of 11 Constitutional Court judges.
Advocate Paul Jammy, who presented argument on behalf of the Gay and Lesbian Equality Project, said he was asking for whatever legislative reforms were necessary to rectify a “glaring deficiency”.
Justice Sachs, Ackermann and Skweyiya specifically expressed the view that the adoption case before them would not have been necessary if the Marriages Act did not discriminate unfairly against same-sex couples.
The case made legal history this week when Chief Justice Chaskalson granted permission for the Lesbian and Gay Equality Project to act as a friend of the court, acting as an expert on the issue of same-sex adoptions.
During the hearing, several of the judges queried how involved parties would determine the best interests of any children involved in a same-sex relationship, should such a relationship end.
Advocate David Ginsberg, arguing for the applicants, pointed out that if a custody dispute arose between married heterosexual partners, the State usually paid for a family lawyer to intervene to decide what would be in the best interests of any children involved.
The same free service was not automatically available when a custody dispute arose in gay relationships, as these partnerships had no real legal standing, Ginsberg said.
In very direct comments from the Bench, Judges Skweyiya, Sachs and Ackermann commented that they are growing reluctant to resolve the issue of inequality that exists in the law for lesbian and gay people through a “patchwork” approach.
They indicated the time is ripe for the explicit recognition of same sex relationships in the law. The judges specifically mentioned that both parliament and the South African Law Commission should give urgent attention to this matter.
Allowing both parties to adopt would at least put both parties in a custody dispute on an equal footing, should a custody dispute arise, Justice Richard Goldstone said.
He said furthermore that as matters currently stood, in a gay or lesbian partnership, the scales weighed heavily in favour of the legal parent of a child. The question of whether or not the other partner might be better suited to take care of that child was legally irrelevant.
The South African Law Commission, tasked in July 1999 by then Justice Minister Penuell Maduna with investigating the impact of discriminatory legislation on homosexual partners and unmarried heterosexual couples living together, said on Thursday that their investigation was still underway.
“A need for legislative reforms has to become apparent before something can be done about it. We are working very hard… but it’s a mammoth task that’s going to take time,” Law Commission researcher Amanda Louw said, adding that she did not expect to see draft legislation in place before, at least, 2003.
In the Constitutional Court, a curator has been appointed to represent the interests of De Vos and Du Toit’s two children, as well as other children, born and unborn, who may be affected by the court’s order.
Lawyers for the two women said they were hoping for a judgement within a few weeks, but that it “could take longer”.
Both Gay and Lesbian Equality Project representative Evert Knoesen and Du Toit said they were confident that they would get confirmation of the High Court ruling.
“It’s been hard, but if you really believe in something you fight for it,” Du Toit said. – Sapa, own correspondent
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