Same-sex marriage has been legal in South Africa since the Civil Union Act, 2006 came into force on 30 November 2006. 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 spousesas the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientationand gave Parliament one year to rectify the inequality in the marriage statutes. On 14 November 2006, the National Assembly passed a law allowing same-sex couples to legally solemnise their union 229 to 41, which was subsequently approved by the National Council of Provinces on 28 November in a 36 to 11 vote, and the law came into effect two days later.

South Africa was the fifth country in the world to legalise same-sex marriage after the Netherlands, Belgium, Spain and Canada, and remains the only African country to have done so. Polling suggests that a majority of South Africans support the legal recognition of same-sex marriage.

History

Background South Africa was the first country in the world to safeguard sexual orientation as a human right in its Constitution.Van Zyl M"journal of social Issues, Vol 67, No 2" 2011 University of Stellenbosh 335 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: National Coalition for Gay and Lesbian Equality v Minister of Justice (1998) decriminalised consensual sexual activities between men. Langemaat v Minister of Safety and Security (1998) recognised the reciprocal duty of support between same-sex partners, and extended health insurance benefits. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (1999) extended immigration benefits to foreign partners of South African citizens. Satchwell v President of the Republic of South Africa (2002) extended remuneration and pension benefits. Du Toit v Minister of Welfare and Population Development (2002) allowed same-sex couples to adopt children jointly. J v Director General, Department of Home Affairs (2003) allowed both partners to be recorded as the parents of a child conceived through artificial insemination. Du Plessis v Road Accident Fund (2003) recognised the claim for loss of support when a same-sex partner is negligently killed. Gory v Kolver NO (2006) allowed inheritance of the estate of a partner who died intestate.

The Fourie case

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. Judge Pierre Roux dismissed the application on 18 October 2002 on the technical basis that they had not properly attacked the constitutionality of the definition of marriage or the Marriage Act, 1961. Fourie and Bonthuys requested leave to appeal to the Constitutional Court, but this was denied and the High Court instead granted leave to appeal to the Supreme Court of Appeal (SCA). They applied to the Constitutional Court for direct access, but this was denied on 31 July 2003; the court stated that the case raised complex issues of common and statutory law on which the SCA's views should first be heard.

Fourie and Bonthuys therefore appealed the High Court judgment to the SCA, which handed down its decision on 30 November 2004. The five-judge court ruled unanimously that the common-law definition of marriage was invalid because it unconstitutionally discriminated on the basis of sexual orientation, and that it should be extended to read "Marriage is the union of two persons to the exclusion of all others for life." The court further unanimously noted that because Fourie and Bonthuys had not challenged the Marriage Act, the court could not invalidate it, and, therefore, their marriage could not immediately be solemnized. The court divided, however, on whether the couple should be given an immediate remedy in implementing the new, wider common-law definition of marriage. The majority opinion, written by Judge Edwin Cameron, ruled that the new definition should apply immediately. In a dissenting opinion, Judge Ian Farlam was of the opinion that the court's order declaring the common-law definition invalid should be suspended for two years to allow Parliament to adopt its own remedy for the situation. 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.

On 1 December 2005, the Constitutional Court handed down its decision: the nine justices agreed unanimously that the common-law definition of marriage and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage, were unfairly discriminatory, unjustifiable, and therefore unconstitutional and invalid. In a widely quoted passage from the majority ruling, Justice Albie Sachs wrote:

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. If Parliament did not end the inequality by 1 December 2006, then words would automatically be "read in" to the Marriage Act to allow same-sex marriages. Justice Kate O'Regan dissented, arguing that these words should be read in immediately.

Civil Union Act

On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament. 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. It also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex. The state law advisers, who screen laws for constitutionality and form, declined to certify the bill, suggesting that it failed to follow the guidelines laid down by the Constitutional Court. 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". On 16 September, thousands of South Africans took to the streets in several cities to protest same-sex marriage. 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. Public hearings on the bill began on 20 September. On 7 October, the Marriage Alliance organised a march to the Union Buildings in Pretoria to hand a memorandum opposing same-sex marriage to government representatives. On 9 October, the governing African National Congress (ANC) voted to support the bill. Although the party had been split on the issue, the vote meant that ANC MPs would be obliged to support the bill in Parliament. The full party support came after members of the national executive committee reminded party members that the ANC had fought for human rights, which includes LGBT rights.

It was originally expected that the National Assembly would vote on the bill on 20 October in order to allow enough time for the National Council of Provinces to debate and vote on it ahead of the 1 December deadline. The vote was repeatedly delayed as the Portfolio Committee on Home Affairs was still involved in discussions. In response to the argument that 'separate but equal' civil partnerships would not comply with the Constitutional Court's ruling, the Portfolio Committee amended the bill to allow either marriages or civil partnerships, and to allow them to both same-sex and opposite-sex couples. The chapter dealing with the recognition of domestic partnerships was removed. On 13 November, one day before the bill would be read for a final reading in the National Assembly, Defence Minister Mosiuoa Lekota said:

The amended bill was passed by the National Assembly on 14 November by 229 votes to 41, and by the National Council of Provinces on 28 November by 36 votes to 11. Deputy President Phumzile Mlambo-Ngcuka, acting for President Thabo Mbeki, signed it into law on 29 November, and it became law the following day, one day before the Constitutional Court's order would otherwise have come into force. Minister of Home Affairs Nosiviwe Mapisa-Nqakula said the law was only a temporary measure, noting that a fuller marriage law would be formulated to harmonise the several pieces of marriage legislation now in force.

+ 14 November 2006 vote in the National Assembly Party Voted for Voted against Abstained Absent (Did not vote) African National Congress – Democratic Alliance Inkatha Freedom Party – – Independent Democrats – United Democratic Movement – – African Christian Democratic Party – – Freedom Front Plus – – – National Democratic Convention – – – Pan Africanist Congress of Azania – – United Christian Democratic Party – – Minority Front – – – United Independent Front – – – Azanian People's Organisation – – – Federation of Democrats – – – Progressive Independent Movement – – – United Party of South Africa – – –Total412128

+28 November 2006 vote in the National Council of Provinces Party Voted for Voted against Abstained Absent (Did not vote) African National Congress – Democratic Alliance – Inkatha Freedom Party – – Freedom Front Plus – – – Independent Democrats – – – United Christian Democratic Party – – – United Democratic Movement – – – United Independent Front – – –Total1116

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". Islamic leader Sheikh Sharif Ahmed called the bill a "foreign action imposed on Africa". The law made South Africa the fifth country in the world to legalise same-sex marriage after the Netherlands, Belgium, Spain and Canada. The first couple to wed, Vernon Gibbs and Tony Halls, did so in George, the following day, 1 December 2006. They encountered no problems, and a second couple married later that day in the same location. In 2013, South Africa's first traditional same-sex wedding was held for Tshepo Cameron Modisane and Thoba Calvin Sithole in KwaDukuza.