The Applicant in this case, who was a judge, had lived with her same-sex partner since 1986. Despite the similarity of their relationship to that of a married couple, the Applicant’s partner did not fall within the legal deﬁnition of a spouse. As a result, the partner could not enjoy any of the beneﬁts legally granted to judges’ heterosexual spouses, pursuant to Sections 8 and 9 of the Judges’ Remuneration and Conditions of Employment Amendment Act and relevant regulations (collectively, “Act”). The Applicant challenged the constitutionality of the Act before a High Court. She argued that Sections 8 and 9 infringe the right to nondiscrimination. The High Court found that these Sections of the Act discriminated on the basis of sexual orientation and marital status, and thereby infringed on Section 9(3) of the South African Constitution. The case was forwarded to the Constitutional Court for conﬁrmation.
The Court recognized that the Act granted beneﬁts to judges’ spouses on the basis that the couple share all economic, emotional, and psychological aspects of life. There is a reciprocal support and attachment within the couple. The Court noted that permanent and stable same-sex partnerships exhibit similar bonds and reciprocal duties of support. The Constitutional Court, therefore, upheld the decision of the High Court. To this end, the Court found that the Act was inconsistent with Section 9(3) of the Constitution, which prohibits discrimination based on sexual orientation. According to the Constitutional Court, there is no legitimate reason for providing beneﬁts to heterosexual spouses while denying those same beneﬁts to same-sex partners that exhibit “reciprocal duties of support.”
The Court held that Sections 8 and 9 of the Act discriminate on the basis of sexual orientation, and therefore violate Section 9(3) of the Constitution. The Court therefore concluded that the Act should be amended to grant beneﬁts to judges and their same-sex partners with whom they share reciprocal duties of support.