[59]This Court has thus in five consecutive decisions highlighted at least four unambiguous features of the context in which the prohibition against unfair discrimination on grounds of sexual orientation must be analysed. The first is that South Africa has a multitude of family formations that are evolving rapidly as our society develops, so that it is inappropriate to entrench any particular form as the only socially and legally acceptable one.[1] The second is the existence of an imperative constitutional need to acknowledge the long history in our country and abroad of marginalisation and persecution of gays and lesbians, that is, of persons who had the same general characteristics as the rest of the population, save for the fact that their sexual orientation was such that they expressed erotic desire and affinity for individuals of their own sex, and were socially defined as homosexual. The third is that although a number of breakthroughs have been made in particular areas, there is no comprehensive legal regulation of the family law rights of gays and lesbians. Finally, our Constitution represents a radical rupture with a past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. Small gestures in favour of
- ↑ See further the Introduction by myself to Eekelaar and Nhlapo (eds) The Changing Family: Family Forms and Family Law (Juta, Cape Town, 1998) at xi:
“[A]s far as family law is concerned, we in South Africa have it all. We have every kind of family: extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are [controversies, difficulties] and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history. I am not proposing to go through the few hundred thousand years ever since Lucy [the African common ancestor of all humanity], but one can say that family law in South Africa or the problems of family law are the product of the way our subcontinent was peopled, the way we were colonised, the way the colonists were subsequently colonised, the way we were separated and the way we came together again. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory.”
