- January 20, 2022
- |Concise Law Reports (CLR), Legislation
LEGISLATION – IMMIGRATION CONTROL ACT 1993 – APPLICATION FOR PERMANENT RESIDENCE – APLLICANTS IN SAME SEX RELATIONSHIPS
The parties were married in South Africa and Germany respectively, to Namibian citizens. Applications for a work permit (in terms of s 27(2)(b) of the Immigration Control Act, Act 7 of 1993 and a permanent residence permit in terms of s 26(3)(d)) were made by the foreign parties to the Immigration Selection Board. The applications were refused.
The applicants thereafter applied to this court for an order that their civil marriages be recognised by the Board, and that they be recognised as spouses in terms of s 2(1)(c) of the Act. In the event that the court finds that the word ‘spouse’ as used in the Act does not include same-sex spouses, the parties sought to have the section declared unconstitutional and rectified by reading into the sections the words ‘including persons lawfully married in another country and an order that the applicants (and the minor child, in the Digashu application) are declared to be a family as envisaged in article 14 of the Namibian Constitution. As regards the minor child, an additional order was sought in relation to the third applicant minor child, that the applicants are the joint primary caregivers and joint guardians of the minor child and are permitted to relocate him to Namibia, and that the child is their dependent. A court order from the Gauteng High Court making such declaration was produced.
In the event that this relief was not granted in the Digashu application, an order was sought reviewing and setting aside the decision of the Immigration Selection Board to refuse Mr Digashu’s application for an employment permit. This relief was conceded, and it was submitted that the application should be referred for reconsideration. In the Seiler-Lilles application, Ms Seiler-Lilles sought an order setting aside the decision to refuse her application for a permanent residence permit.
The respondents’ opposition was based on the decision of the Supreme Court in Chairperson of the Immigration Selection Board v Frank 2001 NR 107, inter alia to the effect that same sex relationships are not legal in Namibia, and that the right to family entrenched in article 14 of the Constitution also did not include same- sex relationships.
A full bench of the High court (PRINSLOO J, SIBEYA J ET SCHIMMING-CHASE J) considered the matter and held that:
- In terms of article 81 of the Constitution, a Supreme Court decision must be followed by the High Court, even if that decision is wrong, unless the findings were obiter, which they were not.
- Should the High Court hold the view that the decision, or findings, or even the reasoning of the Supreme Court is wrong, or outdated, and that it should be changed, it is at liberty to formulate those reasons and urge the court of higher authority to effect the change, with the necessary courtesy and respect.
- The interpretation by the Supreme Court of articles 8, 10 and 14 was narrow, outdated and couched in tabulated legalism.
- Homosexual relationships are without doubt, globally recognised, and increasingly more countries have changed their laws to recognise one’s right not to be discriminated against on the basis of one’s sexual orientation. It is time to recognise that homosexuality is part and parcel of the fabric of our society and that persons in homosexual relationships are worthy of being afforded the same rights as other citizens.
- The Supreme Court’s interpretation of the international law was wrong. International conventions ratified by Namibia are binding on it. There is a general consensus that international law is now a crucial source for the protection of lesbian, gay, bisexual, and transgender (LGBT) persons. The UN Human Rights Committee in 1994 recognised that the word “sex” in article 2 (1) of the ICCPR, should be read to include “sexual orientation” – Accordingly article 10 should be interpreted to include sexual orientation, given that article 10(2) specifically provides that no persons may be discriminated against on the grounds of social status, which would include sexual orientation.
- In a functioning democracy, founded on a history such as our own, coming from a system of unreasonable and irrational discrimination, to obtain freedom and independence, and then to continue to take away human rights of another segment irrationally and unjustifiably of Namibian citizenry, simply because of their orientation – amounted to cherry-picking of human rights, and deciding whose rights are more “human”, and to be protected, more than others. This is not what our democracy was founded upon.
- The Constitution must, because it is a moving, living, evolving document, stand evolution and the test of time, be broadly interpreted so as to avoid the austerities of tabulated legalism.
- Section 26(3)(g) does not apply to any of the applicants in this matter, nor to the applicants in the Frank S 26(3) (g) applies when one applies for permanent residence as a spouse of a permanent resident. The Immigration Control Act does not require a spouse of a Namibian citizen to apply for permanent residence because that spouse is automatically domiciled in Namibia by virtue of s 22 of the Immigration Act and becomes a citizen in terms of article 4. The other obvious factor is that the spouses in these cases are Namibian citizens and not permanent residents.
In the result, the review applications had to be determined:
- With respect to the Digashu application, the decision to refuse his work permit was set aside, as conceded by the respondents, and referred back for reconsideration.
- With regard to the Seiler-Lilles application, the prescribed portion of her application for permanent residence was in terms of s 26(3)(g) of the Immigration control Act, which was not applicable to her circumstances. As s 26(1)(a) provided that an application for permanent residence should be made on a prescribed form, there was no proper application to consider in terms of s 26(3)(d), and therefore the relief could not be granted.
Digashu v GRN & Seiler-Lilles v GRN NAHCMD 20 January 2022