A Brief Overview of the Civil Union Ac

Keywords: same-sex marriages, civil union, equality, constitutional rights, constitutional protection of homosexual relationships, Civil Union Act


The adoption of the Constitution of the Republic of South Africa, 1996 (the Constitution) has provided a sound framework for the elimination of discrimination and prejudice against all members of our society. The Constitution provides for equal recognition of the right to freedom of religion and sexual orientation within the framework of the right to equality. This note aims to provide a brief overview and analysis of the general and potentially problematic features of the Civil Union Act 17 of 2006 (the Act) in the context of equality, generally and within realm of the constitutional protection afforded to everyone in South Africa. This contribution is limited to an examination of the quality of the legal protection accorded to same-sex couples as envisaged in the Act, and not to an analysis of the nature of the institution of marriage itself or the theological and social dimensions of same-sex marriages.



Andrews 2007 Washington and Lee Law Review
Andrews P "Big Love? The recognition of customary marriages in South Africa" 2007 (4) Washington and Lee Law Review 1483

Bonthuys 2008 Sexualities
Bonthuys E "Possibilities foreclosed: the Civil Union Act and lesbian and gay identity in Southern Africa" 2008 (6) Sexualities 726

Davis 2009 Vanderbilt Journal of Transnational Law
Davis K "The emperor is still naked: why the protocol on the rights of women in Africa leaves women exposed to more discrimination" 2009 Vanderbilt Journal of Transnational Law 949

Faundez 2002 SELA
Faundez S "Law, social change and lawyers in Chile: from the shrillness of the 60s to the silence of today" 2002 SELA 6.

Gertsmann Same-sex Marriages
Gertsmann E Same-sex Marriages and the Constitution (Cambridge University Press New York 2004)

Jagwanth "Expanding Equality"
Jagwanth S "Expanding Equality" in Murray C and O'Sullivan M (eds) Advancing Women's Rights (Juta Publishers Cape Town 2005)

Kakabadse 2001 Women in Management Review
Kakabadse K "Inequality discourse: problematic consumption of justice in common legal system" 2001 (3) Women in Management Review 241

Klein and Redman 2009 Connecticut Law Review
Klein B and Redman D "From separate to equal: litigating marriage equality in a civil union state" 2009 Connecticut Law Review 1383-1396 and 1394

Laycock, Picarello and Wilson (eds) Same-sex Marriage
Laycock D, Picarello AR Jr and Wilson RF (eds) Same-sex marriage and religious liberty: emerging conflicts (Beckett Fund for Religious Liberty and Rowman & Littlefield 2008)

Maithupfi and Bekker 2009 Obiter
Maithupfi IP and Bekker JC "The existence and proof of customary marriages for purposes of Road Accident Fund claims" Obiter 164-174

Mokgoro 2003 Albany Law Review
Mokgoro Y "Constitutional claims for gender equality in South Africa: a judicial response" 2003 Albany Law Review 1

Ntlama 2009 Malawi Law Journal
Ntlama N "Masiya: gender equality and the role of the common law" 2009 (1) Malawi Law Journal 117

Robinson and Swanepoel 2004 PER
Robinson JA and Swanepoel J "Same-sex marriages in South Africa: The road ahead" 2004 (1) Potchefstroom Electronic Law Journal 87-135
Strasser On same-sex Marriages
Strasser M On same-sex marriages, civil unions and the rule of law: constitutional interpretation at the crossroads (Praeger Publishers London 2002)

Wintemute Legal Recognition
Wintemute R Legal recognition of same-sex partnerships: a study of national, European and international law (Hart Publishing Oxford-Portland Oregon 2001)

Register of legislation and policy documents
Constitution of the Republic of South Africa, 1996
Civil Union Act 17 of 2006
Marriage Act 25 of 1961
Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000
Recognition of Customary Marriages Act 120 of 1998

Register of court cases
Amod v Multilateral Motor Vehicle Accident Fund 1997 12 BCLR 1726 (CC)
Azapo v President of the Republic of South Africa1996 8 BCLR 1015 (CC)
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 7 BCLR 687 (CC)
Bhe v Khayelitsha Magistrate 2005 1 BCLR 1 (CC)
Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC)
Christian Education of South Africa v Minister of Education 2000 10 BCLR 1051 (CC)
Harksen v Lane 1997 11 BCLR 1489 (CC)
MEC for Education: KwaZulu-Natal v Pillay 2008 2 BCLR 99 (CC)
Minister of Finance v Van Heerden 2004 11 BCLT 1125 (CC)
Minister of Home Affairs v Fourie 2006 1 SA 542 (CC)
Moseneke v The Master2001 2 BCLR 103 (CC)
National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 1 BCLR 1517 (CC)
Port Elizabeth Municipality v Various Occupiers 2004 1 BCLR 1268 (CC)
President of the Republic of South Africa v Hugo 1997 6 BCLR 708 (CC)
S v Makwanyane 1995 6 BCLR 335 (CC)
S v Mhlungu 1995 7 BCLR 793 (CC)

List of unpublished sources and newspaper reports
BBC News: 'Homosexuality in Africa' 28 June 2002
Olukya G 'Ugandan lawmaker refuses to withdraw the bill' Associated Press 8 January 2010
President Thabo Mbeki ANC Today 8 Aug 2002
Reddy V 'The same-sex marriage complex in South Africa: some conceptual, gendered and rights-based interpretations' presentation at a one day workshop entitled: Is same-sex marriage ethical? Unilever Ethics Centre, University of KwaZulu-Natal, Pietermaritzburg
SAPA: 'PAC in trouble over hate speech' The Sowetan 28 January 2010
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