KOS and Others v Minister of Home Affairs and Others (2298/2017) [2017] ZAWCHC 90; [2017] 4 All SA 468 (WCC); 2017 (6) SA 588 (WCC) (6 September 2017)

KOS and Others v Minister of Home Affairs and Others (2298/2017) [2017] ZAWCHC 90; [2017] 4 All SA 468 (WCC); 2017 (6) SA 588 (WCC) (6 September 2017)

The court held that the Department of Home Affairs' refusal to process applications for alteration of sex description under the Alteration Act for persons married under the Marriage Act was unlawful and unconstitutional. The Alteration Act does not require divorce or deregistration of marriages as a precondition for relief, and the Department's conduct infringed the applicants' rights to administrative justice, equality, and dignity. The legislative framework does not contain a lacuna preventing relief; the Department's reliance on public or religious sensitivities and alleged data system limitations cannot override constitutional rights. The court ordered the Department to process the...

Citation
[2017] ZAWCHC 90
Parties
Applicant: KOS; Applicant: MMC; Applicant: GNC; Applicant: HA; Applicant: WJV; Applicant: HJV; Applicant: Gender Dynamix; Respondent: Minister of Home Affairs; Respondent: Director-General: Dept. of Home Affairs; Respondent: Deputy Director-General: Dept. of Home Affairs: Civic Services
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 September 2017
Case Number
2298/2017
Procedural Posture
Review Application / Final Judgment After Opposed Motion
Outcome
Application granted. Declaratory and interdictory relief issued in favour of applicants.
Judges
Binns-Ward
Legal Topics
Alteration of Sex Description Act, Marriage Act, Civil Union Act, Administrative Justice, Equality and Non Discrimination, Identity Documents
Administrative Law Constitutional Law Family and Children Alteration of Sex Description Act Marriage Act Civil Union Act Administrative Justice Equality and Non Discrimination +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

KOS

Applicant

MMC

Applicant

GNC

Applicant

HA

Applicant

WJV

Applicant

HJV

Applicant

Gender Dynamix

Applicant

Minister of Home Affairs

Respondent

Director-General: Dept. of Home Affairs

Respondent

Deputy Director-General: Dept. of Home Affairs: Civic Services

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the Department of Home Affairs may refuse to process applications for alteration of sex description under the Alteration Act for persons married under the Marriage Act.
  2. 2 Whether the Department may require divorce or deregister marriages as a precondition for recording sex/gender changes.
  3. 3 Whether the Department's conduct infringes constitutional rights to equality, dignity, and administrative justice.

Ratio Decidendi

The court held that the Department of Home Affairs' refusal to process applications for alteration of sex description under the Alteration Act for persons married under the Marriage Act was unlawful and unconstitutional. The Alteration Act does not require divorce or deregistration of marriages as a precondition for relief, and the Department's conduct infringed the applicants' rights to administrative justice, equality, and dignity. The legislative framework does not contain a lacuna preventing relief; the Department's reliance on public or religious sensitivities and alleged data system limitations cannot override constitutional rights. The court ordered the Department to process the...

Court Disposition

Application granted. Declaratory and interdictory relief issued in favour of applicants.

Orders

  • It is declared that the Department of Home Affairs' conduct in dealing with the applications under the Alteration Act was inconsistent with the Constitution and unlawful.
  • The Director-General is authorised and obliged to determine applications under the Alteration Act irrespective of marital status and irrespective of whether the marriage was solemnised under the Marriage Act or Civil Union Act.