Population Development, 2003 (2) SA 198 (CC)[1]; J v Director-General, Department of Home Affairs, 2003 (5) SA 621 (CC)[2]. In Farr v Mutual and Federal Insurance Co. Ltd, 2000 (3) SA 684 (C) a same-sex partner was held to be "family" of his partner in terms of an insurance policy. In Du Plessis v Road Accident Fund, 2004 (1) SA 359 (SCA) the court recognized a claim for damages for loss of support and funeral damages of a same-sex partner as a result of the death of his partner in a third party matter. In Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs, supra the Constitutional Court held that the Marriage Act is inconsistent with the Constitution in that it discriminated against homosexuals. It suspended its order for a year to afford the Legislature an opportunity to amend the existing legislation in such a way that discriminating provisions be done away with. It is evident from all these decisions that by 30 April 2005, already, it was generally accepted that lifelong same-sex relationships deserved the same protection as hetero-sexual marriages[3]. Insofar as statutory provisions did not afford such relationships the same protection those provisions were held to be inconsistent with the Constitution.
[20] In Daniels v Campbell NO, 2004 (5) SA 331 (CC) the constitutionality of section 1 (1) of the Act was challenged. The surviving spouse of a de facto monogamous union according to Muslim rites contended that the section discriminated against her in that she was not recognized as the intestate heir. In terms of the case law Muslim unions were not recognized as valid marriages in terms of the common law definition of a marriage and in terms of the Marriage Act. Van Heerden J in the Cape Provincial Division upheld her challenge and declared that the omission from the definition section of the Act of a definition of "spouse" to include a husband or wife married in accordance with Muslim rites in a de facto monogamous union, was unconstitutional and invalid and declared further that such a definition was to be read into the Act. The court curtailed the retrospectivity of the order by ordering that its order was not to affect the validity of any
- ↑ Child Care Act allowing for adoption of children by married couples but not by same-sex couples and the Guardianship Act not allowing for joint guardianship in the case of same-sex couples.
- ↑ The Children's Status Act allowing for the registration of the husband of a woman, who has been artificially inseminated with outside gametes, as parent of the child, when born, but not for a same-sex partner to be so registered.
- ↑ See paragraph [21] infra.
