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''National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others'', () ZACC 17, is a 1999 decision of the Constitutional Court of South Africa which extended to same-sex partners the same benefits granted to spouses in the issuing of immigration permits. It was the first Constitutional Court case to deal with the recognition of same-sex partnerships, and also the first case in which a South African court adopted the remedy of "reading in" to correct an unconstitutional law. The case is of particular importance in the areas of civil procedure, immigration, and constitutional law and litigation. In the area of constitutional litigation, the court considered its powers where it has declared a law or provision to be inconsistent with the Constitution. It found that, where the constitutional invalidity resulted from an omission in the legislation, it was not possible to cure the defect by way of notional severance. The only logical equivalent of severance, the court determined, is "reading in," which can be an appropriate form of relief under section 38 of the Constitution. Whether the court reads in or strikes out words from a challenged law, the focus should be on the appropriate remedy, not on the label used to arrive at the result. ==Background== The Aliens Control Act was the primary statute governing immigration law; it required that any foreigner who wanted to permanently move to South Africa obtain an immigration permit. Section 25(5) of the act authorized the Department of Home Affairs to issue an immigration permit to the spouse of a South African citizen or permanent resident, even if that spouse would not otherwise meet the requirements for such a permit. Section 28(2), meanwhile, allowed the Minister of Home Affairs to grant exemptions from the permit requirement in special circumstances. On 27 April 1994 the Interim Constitution of South Africa, which contained a section prohibiting unfair discrimination on the basis of sexual orientation, came into force; on 4 February 1997 it was replaced by the final Constitution of South Africa, which contained an identical provision. After 1994 the National Coalition for Gay and Lesbian Equality (NGCLE) entered into negotiations with the Department of Home Affairs on various issues, including the recognition of same-sex relationships for immigration purposes. The negotiations were initially successful, and the department agreed to consider the foreign same-sex partners of South Africans for exemptions under section 28(2); at least thirteen such exemptions were granted during 1997. In January 1998, however, the department changed its policy, deciding that same-sex partners did not qualify for the "special circumstances" requirement. The NCGLE, joined by six same-sex couples and the Commission for Gender Equality, asked the Cape Provincial Division of the High Court to declare section 25(5) of the Aliens Control Act to be invalid because it discriminated on the basis of sexual orientation and therefore violated the constitutional right to equality. The three-judge panel of the High Court handed down its decision in February 1999, ruling that the section was indeed unconstitutional. So that spouses were not immediately deprived of immigration benefits, the order was suspended for twelve months to allow Parliament to correct the unconstitutionality. The court ruled that, in the interim, "special circumstances" existed and that same-sex partners were to receive section 28(2) exemptions.〔''National Coalition for Gay and Lesbian Equality v Minister of Home Affairs'' 1999 (3) SA 173, 1999 (3) BCLR 280 (12 February 1999), Cape Provincial Division.〕 The government appealed the High Court's decision to the Constitutional Court; the Constitution also requires that any court order that declares an Act of Parliament to be unconstitutional be confirmed by the Constitutional Court. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「National Coalition for Gay and Lesbian Equality v Minister of Home Affairs」の詳細全文を読む スポンサード リンク
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