- May 16, 2023
- |Concise Law Reports (CLR), Constitutional Law, Immigration Law, Legislation
The appeal raises several key questions: (1) whether the Full Bench of the High Court was indeed bound by the majority’s views in Frank, or if those statements were merely obiter dicta (stated by the way) and thus not binding; (2) whether the majority’s approach in Frank should be followed; (3) the implications of the conclusions reached on these issues for the two appeals at hand; and (4) whether the respondents’ refusal to recognize lawful same-sex marriages from foreign jurisdictions (in this case South Africa and Germany) involving a Namibian and a non-citizen is compatible with the Constitution.
In his dissenting judgment, MAINGA JA held that:
- The laws of Namibia do not recognize same-sex relationships. Therefore, whether the opinion of O’Linn AJA on the words marriage, spouse, and family were obiter dicta or not, he was correct in the interpretation of the laws of Namibia, aspirations, and ethos of the Namibian society. Therefore, the court below was bound by the Frank
- The common law principle relied on by the majority is sound in law, but Namibia is under no obligation to recognise a marriage inconsistent with its policies and laws for the reason that the said marriage is warranted by the municipal law of the country in which it was contracted. The appellants’ same-sex marriages offend the policies and laws of Namibia.
- The Ministry did not have to raise public policy, although if it did, it would have strengthened its case.
- Marriage or traditional marriage as defined in common law, other statutes of the Republic and historic understanding of marriage as enshrined in the Constitution was as old as creation itself and the protection of family life in the traditional sense was in principle a weighty and legitimate reason which might justify a difference in treatment.
- To say that the Ministry relied on the unsound finding in Frank, obscured reality. Frank or no Frank, there is no statutory provision for same-sex marriages in Namibian law. The Ministry like any other Cabinet Ministry implements laws. It was not in the province of the Ministry to legislate or interpret laws. It has applied s 2(1)(c) consistent with the Act read with other statutes and the Supreme law of the country.
- Homosexuality was a complex issue that was better left in the Constitutional province of legislature. Parliament is better equipped to deliberate and evaluate the ramifications and practical repercussions of same-sex relationships or any other union.
Consequently, the minority would have determined the appeal on the review reliefs and confirmed the High Court’s orders in both appeals, but for, para 5 of the High Court order in Mr Digashu’s application. In respect of that order, the minority agreed with para [135] (b)(i)(d) of the majority order in Mr Digashu’s appeal. The minority would have made no order as to costs.
The minority discussed the applicable legal principles as follows from page 55, paragraph 136 to page 77, paragraph 186:
‘Introduction
[136] This matter in my opinion is sufficiently complex and sensitive on both sides of the aisle of the Namibian society. In as much as judges are ‘oath bound to defend the Constitution . . . [they] do well to approach this task cautiously’ (Per Chief Justice Earl Warren in Trop v Dulles 356 U. S. 86, 103-04 (1958) more so in this matter before us which is in the area of considerable social, political and religious controversy (Wilkinson v Kitzinger & others [2006] EWHC 2022 (Fam)).
The learned Judge referred to newspaper articles on the matter in paragraphs 137 – 140, and proceeded that:
‘[141] The AG is the chief advisor of government, what he stated in his answering affidavit to the sodomy matter currently pending before the High Court (that ‘As the applicants accept, for many Namibians, homosexual conduct is immoral and unacceptable. I deny that the mere existence of the sodomy law promotes the stigmatization of gay men. If these men suffer any stigma, it is in consequence of their choice to engage in sexual conduct considered to be morally taboo in our society’) should be considered to be the instructions he received from the government reflecting the government’s standpoint on the issue of sodomy.
[142] Against this background, I turn to the matter before us. I have read the majority judgment. I agree with the judgment’s summary of the facts, the issue to be determined, the litigation history of Frank, and para (d) of the order in Matsobane Daniel Digashu & another. My dissent is on (1) my brothers’ decision to resolve the disputes in these matters on the amended/alternative Constitutional reliefs sought by the appellants; (2) the consequent orders made and (3) the finding that the court below was not bound by the majority opinion in Frank.
[143] Was the court below bound by the majority opinion in Frank?
[144] In my opinion, it was.
[145] The majority judgment holds that the court below was not bound by the majority opinion in Frank, firstly for the reason that the issue of the respondents’ lesbian relationship and the alleged breach of their fundamental rights was in no way determinative of the outcome of that case and therefore constituted obiter dicta. Secondly is that the facts in the two appeals are distinguishable from the facts in Frank, in that in the present appeals the parties concluded lawful marriages in jurisdictions recognizing such marriages, while in Frank, the parties were same-sex partners in a committed long-term relationship.
[146] What this finding failed to consider is that the laws of Namibia (including the Constitution of the Republic) do not recognize same-sex relationships and marriages. There is a legion of indicators to that effect. The crime of sodomy on our statutes is one; pieces of legislation enacted by Parliament, namely, Combating of Domestic Violence Act 4 of 2003, s 3 defines domestic relationship excluding same-sex relationships, s 3(1)(b) and (f) particularly provides, ‘they being of different sexes . . .’. (See also Mr Luhl’s letter on domestic violence), Children’s Status Act 6 of 2006, defines marriage excluding same-sex, including any marriage in terms of the law of any country other than Namibia, which marriage is recognized as a marriage by the laws of Namibia; Child Care Protection Act 3 of 2015, s 1 thereof replicates the definition of marriage as in the Children’s Status Act; the Married Persons Equality Act 1 of 1996, which among other things, its purpose is to abolish marital power, amend the matrimonial property law of marriages in community of property and provide for domicile of married women and the Recognition of Certain Marriages Act 18 of 1991. The Schedule to this Act, which is the SWAPO Family Act, spells out any doubts to the meaning of the words, spouse, marriage, and family. Article 1 provides for family relations of Namibians, to wit, marriage, and matrimonial relations. Article 2 provides that marriage and family shall be the fundamental cells of our society. In Art 3, equality of men and women is one of the fundamental principles governing marriage and family. Article 5 thereof further provides that, marriage shall be the community of lives of a man and woman regulated by statute and Art 8 provides that the marriage shall be valid when two parties of different sex state their agreement to marry . . . and public opinions from some founders of the Constitution. The list goes on.
[147] In fact, the partners of Mr. Digashu and Ms. Seiler-Lilles are Namibians. They chose to marry elsewhere because the laws of Namibia do not recognize same-sex relationships or marriages. The above laws including the Immigration Control Act 7 of 1993 (the Act) were promulgated after the Constitution was long adopted. There can be no doubt that their provisions inclusive of s 2(1)(c) of the Act are consistent with the Constitution.
[148] Therefore whether the opinion of O’Linn AJA on the words marriage, spouse and family were obiter dicta, or not he was correct in the interpretation of the words as that opinion is consistent with the laws of Namibia, aspirations, and ethos of the Namibian Society.
[149] For this reason alone, the court below was bound by the Frank decision.
[150] One of the values of stare decisis is to ‘restrain judicial hubris, a reminder to respect the judgment of those who have grappled with the important questions in the past (Dobbs v Jackson Women’s Health Organization No. 19-1392, 597 US (2022). To leave it open to the lower courts to make choices about whether a decision of a Superior Court is binding or not is to invite legal chaos.
[151] I now turn to the main finding of the majority judgment.
[152] That finding has its basis in a well-established general principle of common law, that if a marriage is duly concluded in accordance with the statutory requirements for a valid marriage in a foreign jurisdiction, it falls to be recognized in Namibia and that, that principle finds application to these matters. The judgment relies on the ordinary meaning of spouse since s 2(1)(c) does not define the word. The judgment goes on to say that the Ministry did not raise any reason relating to public policy as to why the appellants’ marriages should not be recognized in accordance with the general principle of common law; neither did the Ministry question the validity of the appellants’ marriages. Further to that, on the basis of the common law principle, appellants’ marriages should have been recognized for the purposes of s 2(1)(c), and Mr. Digashu and Ms. Siller-Lilles are to be regarded as spouses and thus exempt from Part V of the Act. The majority relies on the South African cases of AS v CS and Seedat’s Executors for the finding.
[153] A careful reading of AS v CS reveals that even South Africa whose Constitution on Fundamental Rights prohibits discrimination on the ground of sexual orientation, had to pass the Civil Union Act 17 of 2006 to accommodate same-sex partnerships/marriages. The Preamble to the Civil Union Act, in paras 1, 2, 3, and 4 refers respectively to ss 9(1), 9(3), 10, and 15 of the Constitution, and in para 6 it notes:
‘AND NOTING that the family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex couples.’
[154] Compare the observations of the former Chief Justice of Zimbabwe, Gubbay when he said:
‘The mere fact that a given state has a justiciable declaration of rights in its constitution, no matter how well drafted, does not of itself guarantee the enjoyment of, or respect for, human rights. It is quite possible for two countries with identical declarations to have totally different experiences with the level of human rights that are actually enforced. For example, the Soviet Constitution of 1936 had a Declaration of Rights which one might wish. Yet that did not stop the Gullags, mass deportations, or other notorious human rights violations of the Stalinist era from occurring. The United States experienced a similar situation. For over two hundred years clauses of the Constitution of the United States have been substantially the same. Nonetheless, the institution of slavery was tolerated; women did not have contractual capacity or the ability to own property until 1848; women and African Americans did not have the right to vote until this century; sex and racial discrimination coexisted with the Equal Protection Clause of the Fourteenth Amendment for at least fifty years’ (Human Rights Quarterly 19 (1997) 227-254 at 228 (c) 1997 by ‘The Johns Hopkins University’).
[155] In AS v CS, the same-sex partnership was solemnised in the United Kingdom (UK) both parties being South Africans. When the partnership failed the plaintiff returned to South Africa. The defendant later followed. Plaintiff instituted divorce proceedings. The matter was unopposed in motion proceedings. The judge presiding raised the question of whether the court had jurisdiction to grant a decree of divorce in respect of a same-sex marriage (or similar union) solemnized in a foreign jurisdiction. Counsel appearing for the plaintiff did not have an immediate answer, the matter had to be postponed.
[156] When the matter came before Gamble J at a subsequent date in the motion court the learned judge granted a divorce order incorporating a settlement agreement by the parties. Gamble J undertook to file reasons for the order. At the hearing counsel for the plaintiff had provided a useful memorandum which facilitated the preparation of the judgment.
[157] Gamble J in his judgment analyzed the provisions of the Civil Union Act, which was a follow-up on the decision in Minister of Home Affairs & another v Fourie (Doctors for Life International, Amici Curiae); Lesbian & Gay Equality Project & others v Minister of Home Affairs & others 2006 (1) SA 524 (CC)) wherein the Constitutional Court had held the common law definition of marriage inconsistent with the Constitution, so were the provisions of s 30(1) of the Marriage Act 25 of 1961. When he turned to foreign same-sex partnerships he raised the question as to what is the status in South Africa of a same-sex marriage/partnership concluded outside of South Africa?
[158] For the reason of his finding in para 33 to the effect that:
‘[33] Notwithstanding the obvious shortcomings in the Act, I consider that it is correct to say that the present state of our law then is that a same-sex union concluded under the Act is fully cognizable as a marriage, whether the partners thereto choose to call it a marriage or a civil partnership, and that such union is capable of dissolution under the Divorce Act.’
He in para 34 restated the common law principle the majority is holding onto.
[159] In my opinion, this is because the same-sex partnership in terms of SA law was on the same level with the traditional marriage.
[160] What followed was an analysis of the UK Civil Partnership Act 2004 which he labelled as a formidable piece of legislation, which consists of some 490 pages, 264 sections with 30 Schedules. The Act itself and the Schedules thereto deal individually with civil partnerships concluded in England and Wales, Scotland, Northern Ireland, and abroad.
[161] After that study, he concluded in para 41:
‘English civil partnership, having been lawfully concluded in that country, should be accepted as a valid and binding civil partnership in the Republic in accordance with the lex loci celebrationis principle, provided only that it does not otherwise offend South African public policy.’
[162] The majority also relies on Seedat’s Executors v The Master (Natal) for the common law principle, but they however conveniently overlook what the court said at pages 307–309:
‘But there are exceptions to the widely accepted rule by which foreign courts recognize the validity of a marriage contracted in accordance with the local law. And one of them is based upon the principle that no country is under an obligation on grounds of international comity to recognize a legal relation which is repugnant to the moral principles of its people. . . .
In Ngqobela v Sihele (10 S.C. 346) it was held that Tembuland Courts would be justified under Proclamation 140 of 1885 in treating as valid native polygamous marriages celebrated before a certain date. But upon the wider question De Villiers, C.J., remarked that “a marriage which is founded upon polygamy would not necessarily be recognized in other countries, although it might be warranted by the municipal law of the country in which it was contracted.” In Ebrahim v Mahomed Essop (1905, T.S. 59) it was said that “if this marriage were a polygamous one it would not be recognized in this country, no matter whether it were recognized as valid in other countries or not. With us marriage is the union of one man with one woman, to the exclusion while it lasts of all others. And no union would be regarded as a marriage in this country, even though it were called and might be recognized as a marriage elsewhere, if it was allowable for the parties to legally marry a second time during its existence.”
. . . It was a relationship recognized no doubt by the legal system under which the parties contracted but forbidden by our own and fundamentally opposed to our principles and institutions. And it is impossible for our Courts when dealing directly with the position of a party to such a union to say that she ever was a wife in the sense in which our law used that term. From which it follows that she cannot be recognized as a surviving spouse within the meaning of the statute. It is a hard result, no doubt, that a woman validly married in one part of the British Empire should not be treated as a wife in another part. But relief can only be properly sought from the Legislature, which is able to grant it subject to such conditions as the circumstances of the country may require. The difference between polygamous and monogamous unions is too vital to be eliminated by Courts of law on grounds of international comity.’
[163] In Wilkinson, the petitioner Susan Wilkinson and the first respondent Celia Clare Kitzinger contracted a form of marriage, lawful and valid by the law of British Columbia (Canada) which permits and recognizes as valid marriages between persons of the same sex. Upon their return to the United Kingdom, Wilkinson with the support of Kitzinger sought among other things a declaration that the marriage was a valid marriage under the law of England and Wales. At the time, the CPA had come into force.
[164] The alternative relief was that if the court found that the law in that jurisdiction cannot recognize the said marriage, the petitioner asked the court to declare that:
‘(a) Being contrary to Articles 8, 12, and 14 (taken together with Article 8 and/or Article 12) of the European Convention on Human Rights, the prohibition of marriage of two persons of the same sex in this jurisdiction is in breach of the petitioner’s human rights; and
(b) Sections 11 (c) of the Matrimonial Causes Act 1973 and Section 1(1) (b) and Chapter 2 of Part 5 of the Civil Partnership Act 2004 are incompatible with the obligations imposed on the United Kingdom by the European Convention on Human Rights and that court will make a Declaration of Incompatibility in respect of the aforesaid sections under section 4 of the Human Rights Act 1998.’
(Articles 8, 12, and 14 are the equivalent of Arts 13 – Privacy, 14 – Family, and 10(2) – Discrimination of the Constitution of Namibia, respectively).
[165] Counsel for the petitioner raised every conceivable argument including the common law principle relied upon in the majority judgment. Counsel even referred to the decision of Halpern et. al. v Canada (Attorney General) (2003) 169 O.A.C. 172 (CA) wherein a number of same-sex partners sought a declaration as to whether the exclusion of same-sex couples from the common law definition of marriage was a breach of the Canadian Charter of Rights and Freedoms and the Constitutional Court of South Africa’s decision in the Minister of Home Affairs v Fourie in which the court held that the absence of provision in the law for same-sex couples to marry each other amounted to denial of equal protection under the law, and was unfair discrimination by the State against them because of their sexual orientation.
[166] The court described the judgment of Sachs J in Fourie as both moving and impressive, but continued to say, ‘however, the decision of the court was reached on the basis of criteria provided for in a Constitution the provisions and requirements of which were in very different terms from those of the Convention and against a different historical ground and social history’.
[167] On the common law principle, the court said, ‘ . . . this would be an inappropriate and ineffective exercise . . . to accept Ms. Monaghan’s suggestion would run counter to public policy, as expressed in the provisions of the CPA which require that a foreign same-sex marriage such as the Petitioner’s be treated as a civil partnership’. The court continued, ‘. . . there is abundant authority that an English court will decline to recognize or apply what might otherwise be an appropriate foreign rule of law, when to do so would be against English public policy: Vervaeke v Smith [1983] AC 145 at 164C’.
[168] The petition was rejected so were the submissions on Arts 8 – the right to respect for private and family life, 12 – right to marry, 14 – prohibition of discrimination, and the argument to develop the common law so as to recognize the petitioner’s Canadian marriage as a marriage in English law.
[169] That being the case, the finding based on the common law principle is without a foundational basis and is clearly fundamentally wrong. In fact not only is it wrong, but it trashes the historical, social, and religious convictions of the Namibian people.
[170] The Ministry was thus entitled to reject the appellants’ same-sex marriages, it is marriages not recognized in Namibia. The common law principle relied on by the majority is sound in law but there are exceptions to the rule and Namibia is under no obligation to recognize a marriage inconsistent with its policies and laws for the reason that the said marriage is warranted by the municipal law of the country in which it was contracted. The marriages of the appellants offend the policies and laws of Namibia. It would be wrong to understand and apply the common law principle contra the authorities and interpret s 2(1)(c) to include foreign same-sex marriages. The principle finds no application under the circumstances.
[171] Regard had to the preamble to the Civil Union Act of South Africa, the revelation by Chief Justice Gubbay, and the position in many other jurisdictions, the fact that the laws of Namibia do not make provision for same-sex relationships, is not peculiar to Namibia only, it is worldwide. In the whole of the European Union, the question whether or not to allow same-sex marriage is left to be regulated by the national laws of the States to the Union. At the time when Schalk and Kopf were decided (June 2010) only six out of forty-seven member States granted same-sex couples equal access to marriage, namely Belgium, the Netherlands, Norway, Portugal, Spain, and Sweden. Thirteen member States did not ‘grant same-sex couples access to marriage, but had passed some kind of legislation permitting same-sex couples to register their relationships, i.e. Andorra, Austria, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Slovenia, Switzerland and the United Kingdom’.95 Ireland and Liechtenstein reforms in that regard were pending or planned.96 Croatia has a law on ‘same-sex civil unions . . . for limited purposes, but does not offer them the possibility of registration’.
[172] Most of the European Union States are old democracies but never had provision for same-sex couples in their laws. Baroness Scotland introducing the second reading of the Civil Partnership Bill in the House of Lords, said that the Bill was, ‘shaped by consultation with stakeholders and the public at large’ she stated that:
‘[It] offers a secular solution to the disadvantages which same-sex couples face in the way they are treated by our laws . . . This Bill does not undermine or weaken the importance of marriage and we do not propose to open civil partnership to opposite-sex couples. Civil partnership is aimed at same-sex couples who cannot marry. However, it is important for us to be clear that we continue to support marriage and recognize that it is the surest foundation for opposite-sex couples raising children . . . .
(Hansard, HL 22 April 2004, Col 388).’
[173] In Wilkinson, Sir Mark Potter the President of the Family Division stated, while there has been a general move towards legal recognition towards same-sex relationships across Europe in recent years, only Netherlands, Belgium, and Spain have passed laws providing for same-sex marriage. Outside Europe, it appears that Canada and the US State of Massachusetts, and South Africa have given legal recognition to same-sex marriages.
[174] As I have already stated Namibia is no exception. The revulsion of the Namibian people as mirrored in its Constitution particularly Art 23 is directed at past injustices. Homosexuality would not have been one of the injustices. In late 1989 and early 1990 when the Constitution of the Republic was being drafted, and adopted, marriage was clearly understood in the traditional sense of being a union between partners of different sex. When Art 14 of the Constitution grants men and women of full age the right to marry and found a family and entitles them to equal rights as to marriage, during marriage, and at its dissolution it relates to partners of different sex. That is how the Married Persons Equality Act 1 of 1996 came into being, the policy of equal representation between men and women. The International Human Rights Conventions allows member States a wide margin of appreciation when it comes to general measures in issues like the one in question. That much is conceded by the appellants when in their heads of argument they stated, ‘ . . . under International Human Rights Laws States are not required to allow same-sex couples to marry . . .’ and referred to the CCPR in particular (CCPR/C/75/D/902/1999 and 10 IHRR 40 (2003). See also Schalk and Kopf para 97).
[175] Both Mr. Digashu and Ms. Seiler-Lilles would have known the status of same-sex couples in this country, if they did not know they were informed at the time they applied for their respective permits. In fact, Mr. Digashu in his application states that the major consideration in refusing the employment permit was because gay marriages are not recognized in Namibia. In his very first application for a work permit which was in a letter form on 15 June 2017, he stated, ‘I am well aware that our marriage as a same-sex couple is not recognized here in Namibia . . . ’. In his penultimate paragraph, he pleaded with the Ministry ‘to keep this matter as private and confidential as possible to avoid any unnecessary exposure . . . ’.
[176] It was stated that the Ministry did not raise any reason relating to public policy as to why the appellants’ marriages should not be recognized in accordance with the general principle of common law, and that neither did the Ministry question the validity of the appellants’ marriages. The Ministry did not have to raise reasonable public policy, although if it did, it would have strengthened its case. Marriage or traditional marriage as defined in common law, other statutes of the Republic, and the historic understanding of marriage as enshrined in the Constitution is as old as creation itself (Genesis 2:24. See also Sheffield and Horsham v The United Kingdom 22985/93; 23390/94 [1998] ECHR 69 (30 July 1998) para 46), and the protection of family in the traditional sense is in principle a weighty and legitimate reason which might justify a difference in treatment. In Wilkinson, the court went on to say, ‘. . . marriage remains an institution which is widely accepted as conferring a particular status on those who enter it to accord a same-sex relationship the title and status of marriage would be to fly in the face of the convention as well as to fail to recognize physical reality – to the extent that by reason of the distinction it discriminates against same-sex partners, such discrimination has a legitimate aim, is reasonable and proportionate, and falls within the margin of appreciation accorded to Convention States’.
[177] In S v Banana 2000 (3) SA 885 (ZS) at 933C-F the majority declined to decriminalize the crime of sodomy for the only reason that Zimbabwe is a conservative society in sexual matters. Writing for the majority McNally JA said:
‘From the point of view of constitutional interpretation, I think we must also be guided by Zimbabwe’s conservatism in sexual matters . . .
In the particular circumstances of this case, I do not believe that the “social norms and values” of Zimbabwe are pushing us to decriminalize consensual sodomy. Zimbabwe is, broadly speaking, a conservative society in matters of sexual behaviour. More conservative, say, than France or Sweden; less conservative than, say, Saudi Arabia. But, generally, more conservative than liberal.
I take that to be a relevant consideration in interpreting the Constitution in relation to matters of sexual freedom. Put differently, I do not believe that this Court, lacking the democratic credentials of a properly elected parliament, should strain to place a sexually liberal interpretation on the Constitution of a country whose social norms and values in such matters tend to be conservative.’
[178] McNally JA continued to say:
‘I do not believe that it is the function or right of this Court, undemocratically appointed as it is, to seek to modernize the social mores of the State or of society at large. As Justice White said in Bowers, Attorney-General Georgia v Hardwick et al 478 US 186 (1986) (106 SCt 2841).
“The Court is most vulnerable and comes nearest to illegitimacy when it deals with Judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”’
[179] In Schalk and Kopf the court said, ‘. . . the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society.’
[180] In Johnston & others v Ireland Johnston & others v Ireland (1986) 9 EHRR 203 para 53, the court stated:
‘It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions. However, the court cannot, by means of an evolutive interpretation, derive from these instruments a right which was not included therein at the outset.’
The learned judge concluded at pages 74 – 75, that:
[182] Viewed from the perspective I demonstrate above; the Ministry did not discriminate against the appellants. The Ministry applied the law as it is, currently in this country. To say the Ministry relied on the unsound finding in Frank, is to obscure reality. Frank or no Frank, there is no statutory provision for same-sex couples in the Namibian laws. The Ministry like any other Cabinet Ministry implements laws. It is not in the province of the Ministry to legislate or interpret laws. It has applied s 2(1)(c) consistent with the Act, read with other statutes and the Supreme law of the country. In any event, Frank is a decision of this Court, and the Ministry had no reason not to rely on it. The obiter dicta the majority distances themselves from is widely accepted as the law on the word spouse and the Ministry had every reason to rely on it. The court below accepted it that way except for the criticism that Frank was narrowly interpreted. To the extent that there is no law protecting same-sex relationships, I would readily concede that the laws of Namibia and not the Ministry discriminate against same-sex relationships, but that fight should start with the Constitution.
[184] On the distinction made by the majority between this appeal and in Frank, it would mean that this is the first case of its kind to be heard in this Court. The appeal relates to a complex area of considerable social, political and religious controversy110 where our society is widely divided. This Court should have been very cautious in making sweeping interpretations at this stage of the evolving right of same-sex relationships. The right has gained momentum of late, those that are associated with the right, against all odds, are ready or have come out in the open to declare who they are. That appropriate moment seeking to establish the right is nigh.
[185] Parliament cannot keep quiet for too long on the issue – it will have to regulate the issue in one way or another. The claim to same-sex relationships is now here and Parliament which is best placed to assess and respond to that need should arise and act in terms of its Constitutional mandate.’