Ruling on same-sex marriages next January
Two couples are asking the High Court to declare that the term ‘spouse’ in the Immigration Control Act must include same-sex spouses.
JANA-MARI SMITH
WINDHOEK
The landmark decision of three Namibian High Court judges tasked to decide whether Namibia’s constitution recognises same-sex marriages solemnised abroad between Namibians and their foreign spouses will be handed down in eight months, on 20 January 2022.
The day-long hearing on Thursday took place before a packed public gallery that included home affairs minister Albert Kawana during the entire span of the hearing.
High Court justices Esi Shimming-Chase, Hannelie Prinsloo and Orben Sibeya heard arguments by senior council Heathcote Raymond on behalf of two same-sex couples that it was time to set aside the “prejudices of judges in the past”.
The applicants are German national Anita Elfriede Seiler-Lilles, her Namibian wife Anette Seiler-Lilles, South African Matsobane Daniel Digashu and his Namibian husband, Johann Hendrik Potgieter, and their young son.
Before the start of the hearing, Anette Seiler-Lilles said she hoped for a positive outcome so that “we can live as a married couple, free, in Namibia.”
New world
Heathcote argued that the constitution “not only tolerates but celebrates our diversity”, urging the court to rule in favour of the applicants to be granted the same treatment under law as heterosexual married couples in which one spouse is foreign and the other Namibian.
Heathcote argued that the 20-year-old judgment in the Immigration versus Frank case, often referred to as the legal standard for Namibia where it was decided under Namibian constitutional and immigration law the term “spouse” could only apply to a partner in a heterosexual marriage, “was prejudiced” and does not fit the country’s current mores.
“It is repugnant of our constitution,” he said, adding that that the Frank judgment interpreted the constitution’s definition of family and marriage in line with “past prejudices.”
He urged the court to rid the country of those “intolerant ideas” and be part of the “turn of the tide.”
He argued said the current case must be “viewed through the prism of the constitution. We are in a new world where we tolerate diversity.”
The couples are asking the court to declare that the term “spouse” in the immigration control act be declared inclusive of same-sex spouses, or, that it be declared unconstitutional if the immigration act does not recognise same-sex marriages concluded abroad.
In both cases an order is sought that the same-sex spouses and families are declared to be a family as envisaged in Article 14 of the Constitution, and that the they are declared domiciled in Namibia.
Overreach
The State’s case primarily focused on the Frank ruling, and argued that it would be judicial overreach for the court to interfere on a matter that should be the mandate of parliament alone.
“Frank didn’t concern married people, it concerned a lesbian couple,” Heathcote however underlined at one stage.
South African senior council Griffits Madonsela, appointed by the government to defend their case, argued that the courts cannot change Namibian legislation.
“Parliament has the last say in this matter,” he said, saying the court would be guilty of “overreach” should they make the orders asked for by the applicants.
He argued that “even if you find the times have changed and parliament should review their stance, that task and responsibility rests in the heartland of parliament.” He asked that the court dismiss the constitutional relief sought.
Madonsela was responding to a question posed by Judge Hannelie Prinsloo, who pointed out that the Frank case took place twenty years ago and times have changed since then.
“The values and the norms have changed substantially in the past 21 years. Should all the findings and the remarks made then by the court, should the court rely on that?”
Judge Orben Sibeya during the hearing pointed out that Madonsela hails from a country where same-sex marriages are recognised and is arguing in Namibia against that same recognition.
Madonsela however said the “proper” channels would for parliament to decide.
He argued further that Namibia’s laws reflect the countries current values and stance on same-sex relationships. He pointed to the protection against domestic violence act which specifies that domestic relationships are defined as between persons of opposite genders.
WINDHOEK
The landmark decision of three Namibian High Court judges tasked to decide whether Namibia’s constitution recognises same-sex marriages solemnised abroad between Namibians and their foreign spouses will be handed down in eight months, on 20 January 2022.
The day-long hearing on Thursday took place before a packed public gallery that included home affairs minister Albert Kawana during the entire span of the hearing.
High Court justices Esi Shimming-Chase, Hannelie Prinsloo and Orben Sibeya heard arguments by senior council Heathcote Raymond on behalf of two same-sex couples that it was time to set aside the “prejudices of judges in the past”.
The applicants are German national Anita Elfriede Seiler-Lilles, her Namibian wife Anette Seiler-Lilles, South African Matsobane Daniel Digashu and his Namibian husband, Johann Hendrik Potgieter, and their young son.
Before the start of the hearing, Anette Seiler-Lilles said she hoped for a positive outcome so that “we can live as a married couple, free, in Namibia.”
New world
Heathcote argued that the constitution “not only tolerates but celebrates our diversity”, urging the court to rule in favour of the applicants to be granted the same treatment under law as heterosexual married couples in which one spouse is foreign and the other Namibian.
Heathcote argued that the 20-year-old judgment in the Immigration versus Frank case, often referred to as the legal standard for Namibia where it was decided under Namibian constitutional and immigration law the term “spouse” could only apply to a partner in a heterosexual marriage, “was prejudiced” and does not fit the country’s current mores.
“It is repugnant of our constitution,” he said, adding that that the Frank judgment interpreted the constitution’s definition of family and marriage in line with “past prejudices.”
He urged the court to rid the country of those “intolerant ideas” and be part of the “turn of the tide.”
He argued said the current case must be “viewed through the prism of the constitution. We are in a new world where we tolerate diversity.”
The couples are asking the court to declare that the term “spouse” in the immigration control act be declared inclusive of same-sex spouses, or, that it be declared unconstitutional if the immigration act does not recognise same-sex marriages concluded abroad.
In both cases an order is sought that the same-sex spouses and families are declared to be a family as envisaged in Article 14 of the Constitution, and that the they are declared domiciled in Namibia.
Overreach
The State’s case primarily focused on the Frank ruling, and argued that it would be judicial overreach for the court to interfere on a matter that should be the mandate of parliament alone.
“Frank didn’t concern married people, it concerned a lesbian couple,” Heathcote however underlined at one stage.
South African senior council Griffits Madonsela, appointed by the government to defend their case, argued that the courts cannot change Namibian legislation.
“Parliament has the last say in this matter,” he said, saying the court would be guilty of “overreach” should they make the orders asked for by the applicants.
He argued that “even if you find the times have changed and parliament should review their stance, that task and responsibility rests in the heartland of parliament.” He asked that the court dismiss the constitutional relief sought.
Madonsela was responding to a question posed by Judge Hannelie Prinsloo, who pointed out that the Frank case took place twenty years ago and times have changed since then.
“The values and the norms have changed substantially in the past 21 years. Should all the findings and the remarks made then by the court, should the court rely on that?”
Judge Orben Sibeya during the hearing pointed out that Madonsela hails from a country where same-sex marriages are recognised and is arguing in Namibia against that same recognition.
Madonsela however said the “proper” channels would for parliament to decide.
He argued further that Namibia’s laws reflect the countries current values and stance on same-sex relationships. He pointed to the protection against domestic violence act which specifies that domestic relationships are defined as between persons of opposite genders.
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