Same-sex couples contemplate joining cases

JANA-MARI SMITH

Three couples, who are suing government separately for equal marriage rights in Namibia, have been given a chance by the court to indicate whether or not they agree to join forces before a full bench of High Court judges.

The cases all relate to Namibian citizens who tied the knot with their spouses in countries that legally recognise their marriage vows, irrespective of gender.

Each of the couples has since returned to Namibia and eventually decided to sue government, following a number of setbacks, including discrimination at the hands of immigration officials, which has created numerous obstacles to their attempts to settle in the country.

In June, it emerged that a directive had been given by Judge President Petrus Damaseb that a full bench of three judges be constituted to hear all pending cases in which same-sex marriages are an issue.

In July, the court postponed the three cases in question to 4 September for an initial case management conference hearing, to allow the parties to engage with the court on the way forward.

Each party was instructed to address the court on whether their cases should be consolidated with the two other matters relating to same-sex marriages.

They have been instructed to inform the court whether or not the constitutional issues relating to same-sex marriages, as raised in the three cases, lend themselves to be heard by a full bench of three judges.

Moreover, the court is also asking the parties to state whether or not any of the constitutional issues require a full bench of judges or whether these cases, or anyone of them, can or should rather be determined without the necessity for a full bench.

The couples are South African national Daniel Digashu and Johann Potgieter, German national Anita Seiler-Lilles and Anette Seiler and South African Julia Susan Jacobs and her spouse Anita Grobler.

Potgieter, Seiler and Grobler are all Namibian nationals.

Legal experts note that the questions asked by the court are not unusual, and simply provide an opportunity for the parties to consent as to whether their cases should be consolidated, which could lower costs as well as be more effective.

Moreover, if the cases are heard separately by different judges, this could result in different conclusions and lead to further confusion and complications around the issues at stake.

The Legal Assistance Centre (LAC) also explained that while the consolidation of the cases should be agreed to by the parties in question, the court can decide at its own discretion whether to institute a full bench or not.

Namibian Sun recently reported that in the cases where the parties named various government ministries and institutions as respondents, only the ombudsman has declined to oppose the application.

Ombudsman John Walters said: “As a human rights defender, how can I oppose the right for marriage to be recognised in this country? I have at all times defended and tried to protect and advance the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.”