held to be unfair.[1] Vulnerability in turn depended to a very significant extent on past patterns of disadvantage, stereotyping and the like.[2]
[51]The issue in the Home Affairs case was the discriminatory impact of a provision of immigration law that gave special protection to foreigners married to South Africans, while ignoring same-sex life partners. The case accordingly has very direct relevance to the present one. The pertinent question was the impact on same-sex life partners of being excluded from the relevant provisions. The judgment pointed out that under South African common law a marriage creates a physical, moral and spiritual community of life, a consortium omnis vitae described as
“… an abstraction comprising the totality of a number of rights, duties and advantages accruing to spouses of a marriage. … These embrace intangibles, such as loyalty and sympathetic care and affection, concern … as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or in a support-generating business. …”[3]
[52]It was important to emphasise, the Court continued, that over the past decades an accelerating process of transformation had taken place in family relationships, as well as in societal and legal concepts regarding the family and what it comprises. The Court cited Sinclair and Heaton for the proposition that
- ↑ Id at para 44.
- ↑ Id
- ↑ Id at para 46, where Ackermann J quoted Erasmus J in Peter v Minister of Law and Order 1990 (4) SA 6 (E) at 9G.
