Same-sex marriage in South Africa

The path to same-sex marriage in South Africa was shaped by the post-apartheid Constitution, which explicitly prohibits discrimination on grounds of sexual orientation. In 2002, the Constitutional Court in Fourie v Minister of Home Affairs (later consolidated as Minister of Home Affairs v Fourie) held that the common-law definition of marriage and the Marriage Act 25 of 1961 were unconstitutional because they excluded same-sex couples. The Court suspended the declaration of invalidity for 12 months to allow Parliament to remedy the defect, leading to the enactment of the Civil Union Act 17 of 2006.

The ruling built on earlier victories, including the 1998 decision in National Coalition for Gay and Lesbian Equality v Minister of Justice that struck down laws criminalizing consensual same-sex conduct. The Court's reasoning emphasized dignity and equality, principles that underpin the Constitution's equality clause (section 9).¹

The Civil Union Act 17 of 2006 came into force on 30 November 2006, creating a new legal institution called a 'civil union' that can be entered into by two people, regardless of sex or gender. It grants same-sex couples all the rights, responsibilities, and legal consequences of marriage under the Marriage Act, including adoption, inheritance, and spousal benefits. The Act initially allowed marriage officers to object on religious grounds, but a 2020 amendment removed this exemption, requiring all marriage officers to solemnize civil unions.²

The Act also permits opposite-sex couples to marry under it, a provision that has been used by some couples who prefer the gender-neutral terminology. However, the existence of two separate marriage systems has been criticized as creating a 'separate but equal' regime, and there have been calls for a single marriage statute.

Despite legal recognition, same-sex couples in South Africa face significant social stigma and violence. A 2016 study by the Human Sciences Research Council found that 72% of South Africans believed homosexuality was wrong, and hate crimes against LGBTQ people remain underreported. Lesbian women, in particular, have been targets of 'corrective rape' in townships, a term used to describe sexual violence intended to 'cure' their sexual orientation.

Legal protections have not translated into full equality: same-sex couples often encounter discrimination in accessing healthcare, housing, and employment. The government has taken steps, such as the 2020 amendment to the Civil Union Act and the 2021 National Strategic Plan on Gender-Based Violence, which includes LGBTQ-specific measures, but implementation remains uneven.

One lesser-known fact is that the Civil Union Act was initially drafted to apply only to same-sex couples, but the final version included opposite-sex couples after a last-minute amendment by the African Christian Democratic Party, which sought to undermine the law; ironically, this has allowed some heterosexual couples to choose civil unions. Another is that South Africa's first same-sex marriage was performed on 1 December 2006, the day after the Act took effect, by a Home Affairs official in Cape Town.

Internationally, South Africa's legalization influenced other African countries, but no other African nation has since followed suit; in fact, some have tightened restrictions. The Constitutional Court's reasoning has been cited in cases in other jurisdictions, including the United States Supreme Court's Obergefell v Hodges decision in 2015.

Civil Union Act

South African law (Act 17 of 2006) that legalized same-sex marriage and civil partnerships.

Constitutional Court

The highest court in South Africa for constitutional matters, which ruled in favor of same-sex marriage.

Corrective rape

A form of hate crime in which victims are raped because of their perceived sexual orientation, often targeting lesbians.