South Africa Case Law

S.P.M obo S v King's School - White River and Others (A22/2021; EQ1/2019)

S.P.M obo S v King's School - White River and Others (A22/2021; EQ1/2019) [2022] ZAMPMBHC 1 (13 January 2022)

Court

Mbombela High Court, Mpumalanga

Case number

A22/2021

Judges

Greyling-Coetzer, Mashile

The High Court found that the Equality Court erred in its approach to absolution from the instance by considering evidence from both the appellant and respondents at the close of the appellant's case, rather than limiting itself to the appellant's evidence. The appellant had made out a prima facie case of discrimination based on sexual orientation, as the evidence showed that S was treated differently from other learners due to her sexual orientation. The instruction to remove S from the school and the alternative arrangements for her exams were directly linked to the disclosure of her sexual…

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• Promotion Of Equality And Prevention Of Unfair Discrimination Act
• Burden Of Proof
• Sexual Orientation Discrimination
• Absolution From The Instance
• Equality Court Procedure

Olivier v Gemeenskaplike Kerk Kantoor of the Afrikaanse Protestantse Kerk and Others (JS487/15)

Olivier v Gemeenskaplike Kerk Kantoor of the Afrikaanse Protestantse Kerk and Others (JS487/15) [2016] ZALCJHB 326 (29 August 2016)

Court

Labour Court Johannesburg

Case number

JS487/15

Judge

Lagrange

The Labour Court dismissed a condonation application for a very late referral of an automatically unfair dismissal claim, finding the explanation vague and inadequate.

• Automatically Unfair Dismissal
• Condonation
• Sexual Orientation Discrimination
• Section 187 Lra
• Late Referral
• Professional Negligence

Makumba v Minister of Home Affairs and Others (6183/14)

Makumba v Minister of Home Affairs and Others (6183/14) [2014] ZAWCHC 183 (3 December 2014)

Court

Western Cape High Court, Cape Town

Case number

6183/14

Judge

Salie-Samuels

The High Court reviewed and set aside a refugee-status refusal, ordering the applicant's asylum claim to be re-interviewed and reconsidered in light of new facts.

• Promotion Of Administrative Justice Act
• Refugees Act
• Non Refoulement
• Sexual Orientation Discrimination
• Bill Of Rights Protection
• Refugee-status

Geldenhuys v National Director of Public Prosecutions and Others (CCT 26/08)

Geldenhuys v National Director of Public Prosecutions and Others (CCT 26/08) [2008] ZACC 21; 2009 (2) SA 310 (CC); 2009 (1) SACR 231 (CC); ; 2009 (5) BCLR 435 (CC) (26 November 2008)

Court

Constitutional Court

Case number

CCT 26/08

Judges

Mokgoro, Langa, Moseneke, Madala, Ngcobo, O'Regan, Sachs, Van der Westhuizen, Yacoob

Sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act set a higher age of consent for same-sex sexual acts (19 years) than for opposite-sex acts (16 years), amounting to discrimination based on sexual orientation. This differentiation does not serve a rational government purpose and is presumed unfair under section 9(3) of the Constitution. No justification was provided by the State or respondents to rebut this presumption. The provisions perpetuate harmful stereotypes and are inconsistent with the values of equality, dignity, and freedom. The Court confirmed the Supreme Court of Appeal's…

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• Equality Clause
• Sexual Orientation Discrimination
• Age Of Consent
• Retrospective Invalidity
• Remedial Orders

Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (26926/05)

Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (26926/05) [2008] ZAGPHC 269; (2009) 30 ILJ 868 (EqC) (27 August 2008)

Court

High Courts - Gauteng

Case number

26926/05

Judge

D A Basson

The court found that the applicant was unfairly discriminated against on the ground of sexual orientation when his contract was terminated by the church. The respondent failed to prove that the discrimination was fair or justified by religious doctrine, as the applicant was not in a position of spiritual leadership nor required to teach Christian doctrine. The impact on the applicant's dignity and equality was severe, while the effect on the church's religious freedom was minimal. The church's reliance on international case law was distinguishable on the facts. The court held that constitutio…

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• Promotion Of Equality And Prevention Of Unfair Discrimination Act
• Sexual Orientation Discrimination
• Freedom Of Religion
• Employment Contracts
• Impairment Of Dignity

Fourie and Another v Minister of Home Affairs and Another (232/2003)

Fourie and Another v Minister of Home Affairs and Another (232/2003) [2004] ZASCA 132; [2005] 1 All SA 273 (SCA); 2005 (3) SA 429 (SCA); 2005 (3) BCLR 241 (SCA) (30 November 2004)

Court

Supreme Court of Appeal

Case number

232/2003

Judges

E Cameron, Mthiyane, Farlam

The Supreme Court of Appeal held that the common law definition of marriage, which excludes same-sex couples, constitutes unfair discrimination on the basis of sexual orientation and infringes the constitutional rights to equality and dignity. The court found that the exclusion is not justified and that the development of the common law to include same-sex partners is an incremental step required by the Constitution. The court rejected the argument that such development would intrude on the legislative domain, noting that judicial development of the common law is mandated where necessary to g…

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• Bill Of Rights Limitation
• Right To Equality
• Sexual Orientation Discrimination
• Development Of Common Law
• Marriage Act Interpretation

J and Another v Director General, Department of Home Affairs and Others (CCT46/02)

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)

Court

Constitutional Court

Case number

CCT46/02

Judges

Goldstone, Chaskalson, Langa, Ackermann, Madala, Mokgoro, Moseneke, O'Regan, Yacoob

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 remed…

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• Sexual Orientation Discrimination
• Status Of Children
• Reading In And Striking Out
• Bill Of Rights Limitation
• Parental Rights
• Artificial Insemination

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99)

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999)

Court

Constitutional Court

Case number

CCT10/99

Judges

Ackermann, Chaskalson, Langa, Goldstone, Madala, Mokgoro, Ngcobo, O'Regan, Sachs, Yacoob, Cameron

Section 25(5) of the Aliens Control Act 96 of 1991 is unconstitutional because it omits to confer immigration benefits on permanent same-sex life partners of South African residents, while granting such benefits to spouses. This constitutes unfair discrimination on the grounds of sexual orientation and marital status, violating sections 9 and 10 of the Constitution. The limitation is not justified under section 36(1), as the exclusion does not serve a legitimate governmental interest and perpetuates harmful stereotypes. The appropriate remedy is to read in, after the word 'spouse', the words…

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• Equality Clause
• Sexual Orientation Discrimination
• Reading In Remedy
• Aliens Control Act
• Right To Dignity