oa Fundamina : A Journal of Legal History - A historical perspective on the recognition of same-sex unions in South Africa

Volume 19, Issue 2
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



In pre-1994 South Africa the discourse on sexuality was rigidly controlled by apartheid and a distinct bias in favour of a certain brand of Christianity. Based on the concept of marriage as defined in Christendom, any kind of recognition of same-sex unions was prohibited in South Africa, and sexual relations between persons of the same-sex were characterised as deviant and criminal behaviour. With the abolition of apartheid and the establishment of a new constitutional dispensation based on the values of equality, human dignity and freedom, discrimination against homosexuals was officially relegated to the past. The relegation is attributed to the political alliances formed between minority and marginalised members of our society. Political alliances inevitably led to the acceptance in the South African Constitution, 1996, that discrimination on the ground of sexual orientation would automatically be unfair until proven otherwise. This constitutional commitment led to various piecemeal legislative and judicial developments after 1994, when the recognition and protection of same-sex life partnerships have been at issue. The Constitutional Court declared the common-law definition of marriage to be inconsistent with the Constitution and as a result the Civil Union Act 17 of 2006 was enacted to govern same-sex marriage. This article demonstrates how same-sex couples are made to feel like outsiders due to certain legal provisions, and that the guarantee of democratic tolerance for all South Africans still remains somewhat illusory.

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