Same-sex marriage in South Africa

The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes.

[3] The Constitution of South Africa, which took effect on 4 February 1997, forbids discrimination on the basis of sex, gender or sexual orientation.

These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships: In 2002, a lesbian couple, Marié Fourie and Cecelia Bonthuys, with the support of the Lesbian and Gay Equality Project, launched an application in the Pretoria High Court to have their union recognised and recorded by the Department of Home Affairs as a valid marriage.

[9][10][11] The Government of South Africa appealed the SCA's ruling to the Constitutional Court, arguing that a major alteration to the institution of marriage was for Parliament and not the courts to decide, while Fourie and Bonthuys cross-appealed, arguing that the Marriage Act should be altered as Judge Farlam had suggested.

In the meanwhile, the Lesbian and Gay Equality Project had also launched a separate lawsuit directly attacking the constitutionality of the Marriage Act, which was originally to be heard in the Johannesburg High Court; the Constitutional Court granted the Project's request to have it heard and decided simultaneously with the Fourie case.

In a widely quoted passage from the majority ruling, Justice Albie Sachs wrote: The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew.

It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.There was some disagreement about the remedy: the majority (eight of the justices) ruled that the declaration of invalidity should be suspended for a year to allow Parliament to correct the situation, as there were different ways in which this could be done, and the Law Reform Commission had already investigated several proposals.

The bill as initially introduced would only have allowed civil partnerships which would have been open only to same-sex couples and have the same legal consequences as marriage.

The Joint Working Group, a network of LGBT organisations, described the idea of a separate marriage law for same-sex couples as "an apartheid way of thinking".

[16] The minor opposition African Christian Democratic Party (ACDP) pushed for a constitutional amendment to define marriage as between "a man and a woman"; this was rejected by the National Assembly's Portfolio Committee on Home Affairs.

Although the party had been split on the issue, the vote meant that ANC MPs would be obliged to support the bill in Parliament.

[22][23][24] The bill was hailed by gay and liberal activists as another step forward out of the country's apartheid past, while at the same time some clergy and traditional leaders described it as "the saddest day in our 12 years of democracy".

[27][28] The law made South Africa the fifth country in the world to legalise same-sex marriage after the Netherlands, Belgium, Spain and Canada.

[29] In 2013, South Africa's first traditional same-sex wedding was held for Tshepo Cameron Modisane and Thoba Calvin Sithole in KwaDukuza.

[35] In January 2021, the South African Law Reform Commission issued a 300-page discussion paper, offering a number of proposals and alternatives.

Media reported couples being denied marriage licenses in Pretoria,[57] Gqeberha,[58] Bloemfontein,[59] East London,[59] Alberton,[60] oThongathi,[61] and Richards Bay.

[63] In a 2007 paper, constitutional scholar Pierre de Vos questioned the notion that the legalisation of same-sex marriage in South Africa represents the pinnacle of the human rights struggle of members of the LGBT community.

Researcher William J. Spurlin wrote that "it is important not to simply translate into English [the] use of the Sesotho word motswalle [...] as lesbian."

[71] South African anthropologist Hugh Stayt reported in 1931 that Venda women who had male husbands could acquire their own "wives" by paying a bride price in cattle, just as men did:[71] [Venda] women in a position of authority, such as petty chiefs or witch-doctors, who have been able to accumulate the necessary wealth, often obtain wives in this way, even though they may be themselves married in the ordinary way.

These women are really in the position of servants and are obliged to do all the menial work; they may be given to different men for the purpose of obtaining children, but these men, not having paid the lobola [Zulu word for "bride price"] for them, have no legal rights over them or their children.Contemporary oral evidence suggests that same-sex relationships were "common" and "prevalent" among Ndebele, Tsonga, Xhosa and Zulu miners in South Africa in the early 20th century.

He added that male couples "would quarrel just as husbands and wives do", and when asked whether the nkhonsthana wished to become someone's partner, he replied, "Yes, for the sake of security, for the acquisition of property and for the fun itself.

The Statistics South Africa data are further broken down by province and year; they show that the majority of same-sex marriages were registered in Gauteng and the Western Cape.

In 2007, the Department of Home Affairs confirmed that 17 religious denominations in South Africa had applied to officiate at same-sex marriages under the Civil Union Act.

[83] In May 2009, a same-sex couple, Joe Singh, an Indian South African, and Wesley Nolan, were married in a traditional Hindu ceremony in Durban.

The wedding was officiated by a Tamil priest, and was "complete with embossed invitations, outfits from India and [the] tying [of] a necklace with a pendant of Lord Ganesha".

The South African Tamil Federation issued a statement that "[it] do[es] not sanction such a union or the actions of the priest who sanctified it.

The Anglican Diocese of Cape Town passed a resolution in 2009 to give pastoral guidelines to same-sex couples who live in "covenanted relationships".

The Southern African Catholic Bishops Conference will guide further on how such a blessing may be requested and granted to avoid the confusion the document warns against.

[109] A report conducted by the Human Sciences Research Council on behalf of The Other Foundation was described by some media outlets as the first "statistically sound, nationally representative data" on LGBT issues in Africa.

[113] A Pew Research Center poll conducted between February and May 2023 showed that 38% of South Africans supported same-sex marriage, 58% were opposed and 4% did not know or had refused to answer.