Woman successfully challenges Matrimonial Property Act

The Cape High Court recently handed down a ruling in favour of a woman who challenged the constitutional validity of a section of the Matrimonial Property Act. Vanessa van der Merwe went to court after the Road Accident Fund refused to pay damages in an accident claim. Van der Merwe had claimed after her former husband ran over her twice in his car in 1999, reports Business Day. The fund disputed its liability because an injured person, married in community of property, may not sue for damages arising from an offence that a spouse has committed. Van der Merwe argued in court the section infringed her right to equality contained in the Constitution. The section applies only to people married in community of property. Acting Judge Thandazwa Ndita ruled in September that by use of the words ‘other than damages for patrimonial loss’, the section unfairly discriminated on the grounds of marital status against spouses married in community of property. Patrimonial loss covers the loss of income and income-earning capacity, and medical expenses she had to incur because of her injuries.

Constitutional Court strikes blow against spousal abuse

The Constitutional Court struck a blow against spousal abuse when it ruled on the constitutionality of the Domestic Violence Act, Act 118 of 1998, dismissing an application for leave to appeal by Ahmed Raffik Omar, whose claim that the Act infringed on his right to a fair trial had been rejected by the Natal Provincial Division of the High Court. The case stemmed from an abusive relationship between Omar and his wife, which resulted in several protection orders being issued against him. Omar’s challenge was against Section 8 of the Act, which provides that, under certain circumstances, a member of the SA Police Service could arrest Omar if the police officer had reasonable grounds to believe that his wife was in imminent danger (a suspended warrant of arrest). Omar contended this was unconstitutional, as it infringed on his right to a fair trial, which includes the right to be informed of the charge against him, the right to be presumed innocent, and the right to remain silent; as well as his right to freedom and security of the person.
Judgment (PDF file)
See also a report on the IoL site

Supplied courtesy of Legalbrief Today.

 

High Court rules Maintenance Courts have extended powers

The Cape High Court has handed down a landmark ruling in a maintenance case. The court, reports the Cape Times, has ruled that Maintenance Courts can grant any order to ensure that maintenance orders are satisfied. This includes interdicting institutions from making payments to maintenance defaulters so that the money can be made to complainants instead. Previously, complainants had to consult advocates and approach the High Court – a step which has proved too costly for many. The ruling, by Justice Deon van Zyl, was made in the case of a woman who took action against the maintenance magistrate and maintenance officer of a Wynberg Maintenance Court after battling for 10 years to obtain monthly maintenance for her son. The Maintenance Court said it was unable to assist her in granting an order to obtain funds from the maintenance defaulter’s pension. Judge Van Zyl granted an order confirming that the Maintenance Act provided the Maintenance Court with extensive jurisdiction to make any order to enforce a maintenance order which had not been satisfied.
Full Cape Times report

Court overrides family wishes on blood transfusion

The Pretoria High Court has granted doctors at the Pretoria Academic hospital an urgent court order enabling them to give a month-old baby a blood transfusion. The blood transfusion had been opposed by the baby’s family who are Jehovah's Witnesses, says a Mail & Guardian Online report. The infant is one of twins born prematurely on September 20. They were placed in an incubator, but one boy developed complications. He became anaemic and the doctors told the family he needed a blood transfusion urgently. But the family refused. On Saturday night, doctors asked the court to override the family's wishes that the child should not be given a transfusion. Before granting the order, the judge also heard from the family, who persisted in their opposition to a transfusion.
Full report on Mail & Guardian Online site

 

Supplied courtesy of Legalbrief Today.

 

California passes gay marriage Bill

California has become the first state in the US to pass legislation allowing gays to marry. The Assembly, reports The Washington Post, approved the Religious Freedom and Civil Marriage Protection Act, which would allow marriage between two people rather than only between a man and a woman. The state Senate passed the Bill last week. Opponents of the legislation, including conservative Republicans, have argued that the law must be stopped because it constitutes another assault on the sanctity of the family. Analysts say the Bill puts Governor Arnold Schwarzenegger in the hot seat. ‘I think it's a slam-dunk that he's going to have to veto the Bill and hope that the anger in the gay community doesn't spill over into other groups,’ said one.
Full report in The Washington Post

 

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Employers can't hide behind ignorance

Employers will no longer be able to use the excuse they did not know how to implement Employment Equity policies. This follows the publication of the new Code of Good Practice on the Integration of Employment Equity into HR Policy and Practice, Government Gazette No 27866, August 4 2005. This new code, reports The Star, spells out how the employer's EE obligations are to be integrated into its everyday human resources policies and practices. The code is comprehensive and covers numerous topics, including Implementing EE, Recruitment & Selection, Promotion and Transfer, Impact on Employment Equity and Harassment, among many others. Full report in The Star See latest changes to Employment Equity Act on IR Network site

 

Spouse, live-in lover claim same pension

The applicability of SA’s pension laws to a multi-cultural society is being tested, with Pension Funds Adjudicator Vuyani Ngalwana being called upon to intervene in a case where a spat broke out over the pension payout of a dead man who apparently had two wives, says a Business Day report. It says the importance of this case is that it focuses attention on companies that simply change their pension practices without informing the people affected. Shell was paying out the monthly pension of R3 615 to the widow of MP Mbuthu as the two were married under customary law. But in March last year, a second partner, SG Xaba, surfaced and claimed she had also been Mbuthu’s partner from 1998 until his death and that she had three children with him. Without telling anyone, including Mbuthu’s widow, Shell slashed the pension in half, awarding R1 807.50 to each woman. Although the rules allow for pensions to be split between two wives, Ngalwana said the first wife should have been informed when her payout was about to be cut.
Full Business Day report

 

Supplied courtesy of Legalbrief Today.

 

 

 

Law Society again challenges procedure over traffic fine arrests

Motorists, especially in Johannesburg, are being arrested or held illegally for outstanding traffic fines at police roadblocks, says Johan Gresse of the Law Society of the Northern Provinces in a Business Day report. ‘There has been an increase in the number of arrests for outstanding traffic fines with metro police adopting whatever method they feel fit, like throwing drivers in a bus for hours while the officer continues his work before they are driven to court,’ he said. Gresse has been involved in the past three years with a campaign launched by the Law Society of SA to make the public aware of their rights and to provide them with legal assistance. Johannesburg’s Metro police are continuing with the arrests despite civil charges being successfully laid against police who fail to follow procedure when arresting drivers at roadblocks. This is illegal, according to motor law expert Don Smart, who deals with about 1 300 complaints of this nature a year. ‘The Johannesburg Metro police blatantly ignore the law and the Constitution, they do not follow proper summons and warrant procedures,’ he is quoted as saying.
Full Business Day report  

 

Supplied courtesy of Legalbrief Today.

 

 

 

New strategy to fight rape

A national strategy aimed at fighting the scourge of r ape is to be piloted in at least three provinces by June next year, says a report on the IoL site. Advocate Thoko Majokweni, head of the National Prosecuting Authority's s exual offences and community affairs unit, says the inter-departmental strategy will develop a tri-pillar plan, focusing on prevention, responses and support interventions. ‘All of them have to respond on different packages of information. One of the key things for prevention is to determine why offenders offend and why victims are victimised. The reasons why people r ape, be they children or adults.’ Gaps in the criminal justice system also need to be identified, as well as what specific support r ape survivors need, such as anti-retrovirals, as opposed to other victims of crime. Research shows that in 2000, more than 52 000 cases of r ape and attempted r ape were reported, of which only 27% were prosecuted.
Full report on the IoL site

 

Supplied courtesy of Legalbrief Today.

 

Magistrate redefines common law on rape

An SABC News report says the Lydenberg Magistrates’ Court in Mpumalanga has made a ground-breaking judgment set to re-define SA common law on rape. Passing judgment after 44-year-old Faniel Masiya was found guilty of anal rape of a nine-year-old girl, Magistrate Andries Lamprecht said common law on s exual abuse cases was irrational and unconstitutional. According to common law, a person found guilty of anal rape can only be charged for indecent assault. Lamprecht forwarded the case to the High Court for sentencing. He hoped the judgment would put pressure on Parliament to pass the new Sexual Offences Bill, which lists forced anal penetration as rape.
Full SABC News report

 

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Rape ruling develops principles of vicarious liability

Writing in the Mail & Guardian Online, Women’s Legal Centre attorney, Hayley Galgut, comments that the recent Constitutional Court decision in the matter of a woman gang-r aped by on-duty policemen has emphasised the court’s view that ‘few things can be more important to women than freedom from the threat of sexual violence’. The court made this finding while holding that the Minister of Safety and Security was vicariously liable for damages arising from a lawsuit instituted by the r ape survivor. The court held further that the principles of vicarious liability and its application needed to be developed to accord more fully with the spirit, purport and objects of the Constitution. This conclusion implies that the courts will decide whether a case before it is of the kind that in principle should render the employer liable.
Full report in Mail & Guardian Online (subscribers only)

 

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Fathers-4-Justice forms SA chapter

A SA branch of the British founded Fathers-4-Justice (F4J), a civil rights organisation campaigning for children's rights to see both parents and grandparents after a divorce, has been formed. Dr Steven Pretorius the founder of F4J in SA, said the organisation's main goal was to raise awareness of the plight of many parents – mainly fathers who had restricted or no access to their children, reports the Pretoria News. F4J has a lawyer, a former criminal advocate, a social worker and a psychologist on its team. Pretorius said one of the SA chapter of F4J's main goals would be to try to have unfair, punitive laws revisited. In 1998, the Child Care Act was reviewed by judges, who recommended some changes, including shared parenting after divorce. These recommendations have largely been ignored in the drafting of the changes to the Children's Bill, which is before Parliament. ‘We are hoping to lobby a change in the law for the benefit of our children,’ Pretorius said.
Full report in Pretoria News

Supreme Court says foetuses have rights

The Supreme Court of Appeal has handed down a landmark ruling that will allow parents for the first time to claim compensation from the Road Accident Fund for their unborn babies hurt in car accidents. The court, reports The Mercury, made this ruling late last week as Judge Ian Farlam dismissed fears it was bound to open the floodgates on litigation. The case was brought by Mxolisi Richard Mtati on behalf of his baby daughter, Zukhanye. He claimed R1.3m from the Road Accident Fund, saying that an accident on December 20 1989 caused his daughter to be born brain damaged. The Road Accident Fund refused to pay. It said a foetus did not qualify under law to be ‘a person’. In his judgment, Judge Farlam said it ‘would be intolerable if our law did not grant such an action’.
Full report in The Mercury not available online

 

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THE ONE-YEAR ANNIVERSARY OF SAME-SEX MARRIAGE IN THE UNITED STATES

THE ONE-YEAR ANNIVERSARY OF SAME-SEX MARRIAGE IN THE UNITED STATES: SOME THOUGHTS ON RECENT DEVELOPMENTS, AND ON THE FUTURE
By Joanna Grossman

Hofstra law professor Joanna Grossman provides a retrospective on the anniversary of Massachusetts' decision to begin to grant same-sex-marriage licenses. Grossman surveys developments at both the federal and state levels, and notes the issues that still remain for the future. She also explains important decisions relating to the separate issues of whether a state will grant same-sex marriage licenses, and whether it will respect other states' same-sex marriages.

http://writ.news.findlaw.com/grossman/20050517.html

Child abuse sentence 'too lenient'

Child abuse watchdog groups say a suspended sentence handed down to a 45-year-old man who pleaded guilty to having s ex with a minor was too lenient, reports The Star. In terms of a plea bargain agreement reached in the Pretoria Regional Court, the man must pay R10 000 for psychological therapy for the girl and undergo treatment himself. The psychologist must file quarterly reports on his therapy with the prosecutor. He was also sentenced to a year's correctional supervision. He was sentenced to a fine of R1 000 or six months' imprisonment on the charge of breaking a bail condition when he contacted the girl after his arrest. Child Abuse Action Group spokesperson Nanana Mathebula-Mngomezulu said the court had been too lenient with the man, who was guilty of statutory r ape. People Opposing Women Abuse director Delphine Serumaga echoed this, saying that whether the girl had consented to s ex or not, it was still r ape.
Full report in The Star

 

Supplied courtesy of Legalbrief Today.

 

Domestic Violence Act provision comes under ConCourt scrutiny

Ahmed Raffik Omar found himself on the wrong side of the law when he failed to pay maintenance to his ex-wife timeously, according to a report in The Star. But his subsequent arrest for breaching the terms of the protection order she obtained against him led him to the Constitutional Court where he will appear on Thursday to challenge the mandatory provision in the Domestic Violence Act that requires an arrest warrant to be issued with a protection order. Omar claims the provision requiring that a warrant of arrest be issued breached his right to freedom and security when a protection order was granted against him in April 2003. Lisa Vetten, of the Centre for the Study of Violence and Reconciliation, told the paper the case was cause for concern. ‘The main reasons why that provision (issuing of a warrant of arrest with a protection order) is in the Act is because it recognises the immediacy and importance of violence. ‘It recognises that a woman whose life is in danger cannot go to court and wait in the queues there, and then go to the police and wait in the queues there to have a warrant of arrest issued.’ The argument that the Act was abused by some people did not mean it had to be changed, she added. Full report in The Star    Supplied courtesy of Legalbrief Today.

 

Ex sues over loss of wife

Randburg businessman Enrico Bernert is suing his former wife's boss for R1m, claiming that the man wooed her away from him. In papers before the Pretoria High Court, Bernert says Albert Kopp, a Sandton businessman, ‘enticed’ his then wife Monika into an adulterous relationship, reports The Star. She subsequently divorced Bernert and married Kopp. He stated that she failed to support him through hard times and refused to move with him to the United Arab Emirates when he obtained employment there. But Monika Kopp said in an answering affidavit that life had become impossible with her former husband and that he had spent most of their married life partying with his bachelor friends. She said Bernert was only too happy when she told him she was going to divorce him.
Full report in The Star

 

Supplied courtesy of Legalbrief Today.

 

Divorced father not liable for school fees

The Cape High Court has ruled that only the parent who was awarded custody and control of a minor child by the court in a divorce case can legally be held accountable for the child's school fees. The ruling, reports Beeld, will affect thousands of divorced couples. In the case, the governing body of Gene Louw Primary School unsuccessfully sued a father, who does not have custody of the child, for outstanding school fees. However, the judge made it clear that divorced parents who do not have custody of their minor children, but who undertook in a divorce settlement agreement or reached an agreement with the schools to pay their children's school fees, would still be liable to pay their share.
Full Beeld report

 

Supplied courtesy of Legalbrief Today.

 

Appeal against sentence in sexual abuse case allowed

The Pretoria High Court yesterday granted the State leave to appeal against the ‘lenient’ sentence imposed on a former SA Air Force colonel who sexually abused his stepdaughter. In November last year Magistrate Len Kotze sentenced the man to three years’ correctional supervision and house arrest after convicting him of three charges of indecent assault and one of incest, reports The Mercury. Yesterday, Judge Chris Botha granted the State leave to appeal against the sentence. The Deputy Director of Public Prosecutions, Retha Meintjes, said in court papers that the grounds of appeal included that the magistrate had played down the gravity of the offence and the impact it had had on the victim. The Mercury report not available online    Supplied courtesy of Legalbrief Today.

 

Women's groups seek tough stand on violent crime

In the face of government moves towards lighter sentences to alleviate prison overcrowding, the Consortium on Violence Against Women has called for continued heavy sentences for serious crimes, especially those against women. It says that even if there is proof that minimum sentences contribute to the overpopulation of SA prisons, this is no reason to impose lighter sentences for serious crimes. According to a report in Die Burger, it listed factors that should not be taken into account for mitigation when an offender was being sentenced as: the victim's sexual experience; the offender's cultural beliefs about r ape; the offender's alcohol and substance abuse; the offender's lack of education and bad background; and the victim's seeming lack of physical or emotional damage. Full report on the News24 site    Supplied courtesy of Legalbrief Today.

 

Unmarried survivor cannot claim maintenance - ConCourt

A woman, who wanted to claim maintenance after the death of her life partner, was refused remedy by the Constitutional Court, which, in a majority decision, ruled that Ethel Robinson, who was not married to her partner Aaron Shandling when he died in 2001, did not have the legal right to financial support from Shandling's estate. A report on the IoL site says the court recognised that many women become economically dependent on men, and could be left destitute on the death of their male partners, but said these wrongs would not be put right by including unmarried partners in the Maintenance of Surviving Spouses Act. The MSS Act gives rights to survivors of a marriage, but defines a survivor as ‘the surviving spouse in a marriage dissolved by death’. Robinson, represented by the Women's Legal Centre (WLC), contended that the Act was in conflict with the Constitution, because it unfairly discriminated against domestic partners. Robinson and Shandling had been involved in a monogamous life partnership for 15 years. Justice Skweyiya, who wrote the judgment, said changing the wording of the Act would be a ‘palliative measure’. He said the vulnerability of women in domestic relationships was a widespread problem that should be addressed through the empowerment of women. The judgment also noted the need to improve the law to put more general rights and obligations on people who live in domestic relationships. Full report on the IoL site Noting that the ruling has adverse implications for women in domestic life partnerships, the WLC’s Director, Michelle O’Sullivan, says: ‘The majority decision seems to suggest that the economic and social problems faced by women in domestic partnerships are so widespread that the limited assistance available to them through claiming maintenance from their partners deceased estate is unlikely to alleviate the level of vulnerability that they experience.’ O’Sullivan adds in a statement on the Legalbrief Today site that Judge Skweyiya also suggests that it is only once relationships are recognised by legislation during the subsistence of the relationship that the court could meaningfully consider what should happen upon the death of a partner to that relationship. ’It is strange that when faced with the opportunity to diminish the vulnerability of women at the end of a domestic partnership, the Constitutional Court relies on the severity of the vulnerability of women in the group concerned in order to justify refusing an extension of benefits to women in domestic partnerships.’ However, the statement finds light in the dissenting judgments of Justice Mokgoro and O’Regan, the two women on the Court, and the dissent by Justice Sachs. They found there was a constitutional violation and would have given the legislature two years to remedy the violation. Full WLC statement on the Legalbrief Today site General: ANC attacks on judiciary ‘manipulative’ – Leon As the debate on racism in the judiciary simmers behind closed doors, DA leader Tony Leon has accused government of seeking to manipulate the debate to ensure a more docile judiciary, says a Business Day report. Government is smarting from a series of recent losses in court, including defeated proposals on new medicine pricing, its overturned decision to allow the construction of a pebble bed modular reactor, and the thwarting of its decision that the Mikro Primary School teach learners in English and Afrikaans. The report says Leon accused the ANC of seeking to ‘intimidate the judiciary’, using the debate around racism on the Bench. ‘Stung by its defeat at the Supreme Court of Appeal in the pharmaceutical pricing case late last year, and looking ahead to a number of critical judicial decisions in the next few months, the ANC has launched a well-planned series of attacks on the independence of the SA judiciary,’ he said. Full report in Business Day    Supplied courtesy of Legalbrief Today.

 

Judge slams rape discrimination

A Pretoria High Court judge has slated legislation that ‘discriminated’ between child r ape victims, with the rapists of boys facing far less severe sentences than those who r aped girls. Judge Eben Jordaan and Acting Judge E Tolmay set aside a three-year jail sentence imposed by a Pretoria magistrate on a petrol attendant who lured a six-year-old boy into his house and sodomised him. A News24 report says the man had been convicted of indecent assault and sentenced to three years imprisonment, by the magistrate. The High Court, however, set aside the sentence, and replaced it with a 15-year jail term that was even more severe than the 10-year minimum sentence presently prescribed by the Minimum Sentences Act for indecent assault. Jordaan described the discrimination between male and female child r ape victims as ‘ridiculous’ and said it could not be countenanced in a constitutional dispensation like South Africa's. He described the indecent assault on the boy as ‘male r ape’ and said there was no difference between the trauma experienced by male and female child victims of sexual assault.
Full report on the News24 site

 

Supplied courtesy of Legalbrief Today.

 

Call for laws to protect rights of landlords

It is time the government realised that landlords also have rights and passed legislation to protect them, says Stan Brasg, a leading Johannesburg property lawyer in a report in The Star. Brasg supported his argument by citing a litany of cases of landlords who were morally in the right but lost houses and blocks of flats to what he terms agents provocateurs simply for the lack of a landlord-friendly law. Two of his clients walked away from blocks of flats they owned, because the occupiers had not paid rent for many months, and there was practically nothing they could do to evict them or force them to pay. The report cites the example of how a homeowner, despite paying R64 000 in legal fees – and spending two nights in jail for his efforts to evict a tenant – lost a R1.4m house in Sandton because the tenant was able to withhold paying rent for a year by manipulating the law.
Full report in The Star

 

Supplied courtesy of Legalbrief Today.

Jailed father fights for access to children

A former accountant and convicted murderer, Stuart James McDonald (45), is asking the Durban High Court to order his teenage sons to visit him in jail so that they can ‘bond’ with him. He also wants them to be placed in temporary foster care – away from the ‘negative influences’ of their mother and stepfather. McDonald, who is serving 10 years for the murder of his ex-wife’s former boyfriend and the shooting of her brother-in-law, has been waging a battle for better access to his children, reports The Mercury. While in prison he successfully campaigned for a law which made it a criminal offence for the custodial parent to deny the other parent access to the children. But in his latest appeal, against a Durban Children's Court ruling that the children could be adopted by their mother's new husband, the Durban High Court found that it had no jurisdiction and referred the matter to the Pietermaritzburg Family Court. In his court papers, McDonald claimed that he had opened 133 charges against the children's mother. He also demanded that the boys have access to his family and that he be given access to their school reports.
Full report in The Mercury

 

Supplied courtesy of Legalbrief Today.

Magistrates reluctant to seize weapons in domestic violence cases

Studies have shown that efforts to fight domestic violence are being hampered because magistrates do not use the powers available to them in terms of the Domestic Violence Act to seize weapons from perpetrators. Business Day reports that Dee Smythe of the Gender, Health and Justice Research Unit at the University of Cape Town, says in the latest SA Crime Quarterly that in one in five intimate femicides a woman was killed by her partner with a licensed firearm. The SA Medical Research Council found last year that magistrates had failed to seize weapons. In a study for the Institute for Security Studies conducted last year, magistrates said the implementation of the Act was cumbersome because they had heavy case loads and did not focus primarily on domestic violence cases.

 

An example of a simple will

 Interested in drawing up you own D-I-Y simple will? Here's a basic example.
 
 And here are the formalities you should observe.
 

Employer cannot unilaterally set retirement age

A recent ruling in the Labour Court has dealt with the issue of retirement age. In Rubin Sportswear v SA Clothing and Textile Workers Union and others the Labour Appeal Court had to decide whether an employer was entitled to determine a particular age to be the normal retirement age for his employees by setting it unilaterally as the retirement age. Four employees were dismissed by the appellant, who had recently bought the company, when they reached the age of 60, reports Cluver Markotter Legal Update. The respondents did not accept the dismissal and contended that they were still able and willing to perform their work beyond the age of 60 and that this dismissal was unfair discrimination based on age. The Appeal Court upheld the Labour Court ruling that the dismissal was unfair. It said the Appellant’s conduct in purporting to unilaterally fix 60 as the normal retirement age for the employees was a breach of their terms and condition of employment. The court further looked at what could be considered ‘normal’ retirement age and concluded that 60 was neither the normal nor the agreed retirement age for the respondents. Full report in Cluver Markotter Legal Update    Supplied courtesy of Legalbrief Today. To participate in a free month’s subscription to Legalbrief’s daily legal news service Click here.

 

Father gets rights to question son's 'lover'

A retired soldier has won the right to question a man, who claims he was his deceased son's life partner, about the nature of their relationship, after a ruling made in the Cape High Court on Tuesday.

James Middleton contends that his son Phillip was not involved in a life partnership with French chef Dominique Ripoll-Dausa, who has launched a legal battle for a share of Phillip Middleton's multimillion-rand estate.

Should Ripoll-Dausa succeed in his constitutional court challenge against legislation that, he says, unfairly discriminates against the rights of gays to inherit their partners' estates, he will stand to inherit a substantial portion of Middleton's estate.

 

Florida won't recognise gay marriages from other states

In a blow to g ay rights in the US, a District court in Florida has upheld a federal law protecting states from having to recognise another state's homosexual ‘marriages’. The court dismissed a lawsuit brought by two women seeking to have their Massachusetts union recognised by Florida. They had argued that the 1996 Defence of Marriage Act was unconstitutional because it discriminated on the basis of s ex and violated their fundamental rights, reports The Washington Times. But Judge James Moody disagreed, saying the law treated men and women equally and that the government met its burden of stating a legitimate interest for allowing marriages to exist only between men and women. And in a separate ruling, the Louisiana Supreme Court has unanimously reinstated the marriage amendment to the state constitution that voters overwhelmingly approved in September. The ruling reversed a state district judge's ruling in October striking down the amendment.
Full report in The Washington Times

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Same-sex marriage challenge outlined

In papers filed with the Constitutional Court challenging a recent Supreme Court of Appeal ruling that same-sex marriages be declared legal, the Ministry of Home Affairs argues that the SCA erred in developing the common law in ‘a manner inconsistent with its obligations under Section 39 (2) of the Constitution’. A Sunday Times report says Section 39 (2) states that ‘when developing the common law or customary law, every court ... must promote the spirit, purport and objects of the Bill of Rights’ enshrined in the Constitution. The ministry also argues that the SCA erred in ruling that the extension of the common law definition of marriage to include same-sex couples could not be regarded as fundamentally changing the traditional understanding of marriage. The ministry says that if the Constitutional Court upholds the SCA decision, it will ask the Constitutional Court to suspend the order. This would allow the SA Law Reform Commission to complete its research involving same-s ex unions and submit a report to Parliament, when Parliament could pass ‘appropriate legislation’.

Another victory for gay rights activists

In a majority 4-to-3 decision, the Montana Supreme Court has ruled that the state’s universities must provide their gay employees with insurance coverage for their domestic partners. The judges said the ruling had nothing to do with the rights of gay couples to marry. But a dissenting judge criticised his colleagues as ‘radically altering common law marriage in Montana’, reports The New York Times. Gay rights advocates said the decision was an important victory on the narrower point. ‘It is the first time that any state high court has ruled that a state has a constitutional obligation to provide domestic partner healthcare benefits,’ said James Esseks, the litigation director of the American Civil Liberties Union's Lesbian and G ay Rights and AIDS Projects, which represented the two lesbian couples who brought the suit challenging the state's policy.
Full report in The New York Times

 

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Supreme Court to look at gay rights to adopt

Gay rights issues will be top of the agenda at the US Supreme Court justices' first private conference of the new year today (Friday). The Florida gay adoption case, Lofton v Secretary of the Florida Department of Children and Families, is one of dozens of cases the court will discuss at its conference with an eye toward granting or denying review, reports the Legal Times. If the justices do grant review, the case will give the court its first chance to comment on the scope of its 2003 Lawrence v Texas ruling that announced due process and privacy rights for homosexuals. The 11th US Circuit Court of Appeals narrowly applied Lawrence and an earlier ruling – Romer v Evans – on January 28, 2004, when it upheld Florida's 1977 law excluding g ay people from eligibility as adoptive parents. Florida is the only state that explicitly bars homosexuals from adopting children.

 

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US court gives SA woman custody of child

A SA woman, Hayley Reyersbach, has been granted full custody of her three-year-old daughter by a US court after two years of legal battles in SA and America. The Daily News reports the first court ruling was in February 2003 when the Durban High Court ruled that Reyersbach, who had fled the US six months earlier with her 16-month-old daughter, must return Alyssa to her father, Robert Pennello, in New Jersey. Reyersbach appealed against the decision in the Pietermaritzburg High court, which ruled that Alyssa could remain with her mother until the custody hearing was finalised. Pennello, however, appealed against this decision and in July he and Reyersbach divorced, leaving her without a green card. In December 2003, the Supreme Court of Appeal in Bloemfontein ruled that Reyersbach and Alyssa must return to New Jersey. The order to return to New Jersey was granted under the provisions of The Hague Convention, which deems Reyersbach's actions in America in leaving the country with her daughter to be child abduction. Her final appeal to the Constitutional Court was refused.
Full report in the Daily News

 

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