From protecting same-sex couples' right to be recognised as parents to changing divorce law, the Constitutional Court has paved the way for a changing legal landscape in the next few years.
The Constitutional Court is the only SA court with the power to order parliament to make changes to national legislation.
These are some of the Constitutional Court’s judgments from 2023 which will affect SA’s laws in the next two years.
Unmarried parents deserve same rights as married ones
In July, the apex court ruled that providing access to the family advocate to married parents but not to unmarried ones was unconstitutional. The case was brought by the Centre for Child Law.
The Mediation of Certain Divorce Matters Act allowed married parents in disputes over children to access the family advocate, a government office that assists in family court disputes. However, the act excluded unmarried parents.
The court ruled that “the notion that the rights of parties who get married should be elevated above those of people who do not conclude marriages” holds no legal water.
Parliament has two years to amend the legislation.
Same-sex couples recognised as parents
In July, a lesbian couple had twins via in vitro fertilisation treatment. The birthing mother was recognised as a parent in terms of the Children’s Act, but her partner was not — despite being in a life partnership with the birthing mother and contributing biologically to the twins.
The apex court ruled this unconstitutional. “Same-sex couples have faced significant past patterns of disadvantage, vulnerability and stereotyping,” the court said. “The Children’s Act serves to perpetuate stereotypes.”
As a result, the court ordered that “permanent life partner” be read into the Children’s Act to accommodate such deficiencies. Parliament has two years to fix the legislation.
Divorce Act changes
In October, the apex court ruled that parliament must amend the Divorce Act to give more spouses a chance to claim a share of the assets of a former partner after a split. The remedy in the Divorce Act, known as a redistribution order, allows a divorce court to transfer some assets from one spouse to another if they were married out of community of property, meaning they kept assets separate. Marrying in community of property, on the other hand, means spouses co-own property.
The Divorce Act has always allowed a divorce court to order a “richer” spouse married out of community of property to hand over assets to the other spouse. With October’s ruling, the pool of spouses who can make such a request has widened. The act arbitrarily restricted those married out of community of property before and after November 1984.
Parliament was ordered to get rid of that distinction.
Foreign parents don't have to leave SA
In December, the court ruled that the Immigration Act must be changed as it now forces foreign parents who have split from their SA spouse to return home to renew or obtain another visa to stay with their children in SA. This infringed various rights, including dignity and children’s rights.
Government has been given two years to fix the act.
Changes to waste and environmental laws
In June, the Constitutional Court ruled that parts of the National Environmental Management Laws Amendment Act, which amends the country’s waste management rules, are invalid and unconstitutional.
Parliament had not complied with its constitutional obligation to facilitate public participation when deciding the legal scope of “waste” in various laws. ArcelorMittal, Africa’s biggest steelmaker, estimated “it is likely to incur costs of over R13,600,000” as a result of parliament’s changes. The SA Iron and Steel Institute said it was “ignored” by parliament before it could raise concerns with these legal amendments.
As a result, the court declared these new provisions invalid and of no force. Parliament must consult properly with the public if it wishes to bring such changes into environmental and waste law.
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