J and Another v Director General, Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463 ; 2003 (5) SA 621 (CC) (28 March 2003)

J and Another v Director General, Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463 ; 2003 (5) SA 621 (CC) (28 March 2003)

Section 5 of the Children’s Status Act 82 of 1987 is unconstitutional to the extent that it excludes permanent same-sex life partners from legal recognition as parents of children conceived by artificial insemination. This exclusion constitutes unfair discrimination on the grounds of sexual orientation and marital status, contrary to section 9(3) of the Constitution. The appropriate remedy is to strike out the word 'married' wherever it appears in section 5 and to read in the words 'or permanent same-sex life partner' after 'husband' wherever it appears. The Court declined to extend the remedy to unmarried heterosexual permanent life partners, as that issue was not properly before it. The...

Citation
[2003] ZACC 3
Parties
Applicant: J; Applicant: B; Respondent: Director General: Department of Home Affairs; Respondent: Minister of Home Affairs; Respondent: President of the Republic of South Africa
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
28 March 2003
Case Number
CCT46/02
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity
Outcome
Section 5 of the Children’s Status Act 82 of 1987 is declared inconsistent with the Constitution and is remedied by striking out 'married' and reading in 'or permanent same-sex life partner' after 'husband' wherever it appears. The respondents are ordered to pay the costs of the confirmation proceedings.
Judges
Goldstone, Chaskalson, Langa, Ackermann, Madala, Mokgoro, Moseneke, O'Regan, Yacoob
Legal Topics
Sexual Orientation Discrimination, Status of Children, Reading in and Striking Out, Bill of Rights Limitation, Parental Rights, Artificial Insemination
Constitutional Law Family and Children Sexual Orientation Discrimination Status of Children Reading in and Striking Out Bill of Rights Limitation Parental Rights Artificial Insemination

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

J

Applicant

B

Applicant

Director General: Department of Home Affairs

Respondent

Minister of Home Affairs

Respondent

President of the Republic of South Africa

Respondent

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Does section 5 of the Children’s Status Act 82 of 1987 unfairly discriminate against permanent same-sex life partners by excluding them from legal parenthood of children conceived by artificial insemination?
  2. 2 Is the exclusion of same-sex life partners from the deeming provision of legitimacy constitutionally invalid under section 9(3) of the Constitution?
  3. 3 Should the remedy include unmarried heterosexual permanent life partners?

Ratio Decidendi

Section 5 of the Children’s Status Act 82 of 1987 is unconstitutional to the extent that it excludes permanent same-sex life partners from legal recognition as parents of children conceived by artificial insemination. This exclusion constitutes unfair discrimination on the grounds of sexual orientation and marital status, contrary to section 9(3) of the Constitution. The appropriate remedy is to strike out the word 'married' wherever it appears in section 5 and to read in the words 'or permanent same-sex life partner' after 'husband' wherever it appears. The Court declined to extend the remedy to unmarried heterosexual permanent life partners, as that issue was not properly before it. The...

Court Disposition

Section 5 of the Children’s Status Act 82 of 1987 is declared inconsistent with the Constitution and is remedied by striking out 'married' and reading in 'or permanent same-sex life partner' after 'husband' wherever it appears. The respondents are ordered to pay the costs of the confirmation proceedings.

Orders

  • Paragraph 4 of the order of the High Court is set aside.
  • Section 5 of the Children’s Status Act 82 of 1987 is declared inconsistent with the Constitution to the extent that the word 'married' appears and to the extent that the section does not include the words 'or permanent same-sex life partner' after 'husband' wherever it appears.