## Facts

- Kathleen Margaret Satchwell was a judge of the High Court and had been in a committed, exclusive, permanent same-sex relationship with Lesley (Lesley Louise) Carnelley since about 1986.
- Satchwell and Carnelley lived together for many years, were treated by family and friends as a couple akin to a married couple, and arranged their financial affairs on a shared-life basis, including designating each other as beneficiaries on insurance and investment policies.
- The Judges’ Remuneration and Conditions of Employment Act 88 of 1989 (the Judges’ Remuneration Act) and related regulations provided certain financial benefits to a judge’s “spouse,” including benefits payable to a surviving spouse.
- At the time, South African law did not permit same-sex couples to marry. Under prevailing interpretations, “spouse” in the Act and regulations was understood to refer to parties to a legally recognized (heterosexual) marriage.
- As a result, if Satchwell died, Carnelley would not qualify as a “spouse” and would be excluded from benefits provided to surviving spouses of judges.
- Satchwell challenged the exclusion as inconsistent with the equality guarantee in section 9 of the South African Constitution, alleging unfair discrimination, including discrimination based on sexual orientation and marital status.
- The High Court (Transvaal Provincial Division) declared unconstitutional the omission of language extending the relevant benefits to same-sex life partners and ordered a reading-in to include a judge’s partner in a permanent same-sex life partnership.
- Because the case concerned constitutional invalidity of an Act of Parliament and conduct of the President, the matter came to the Constitutional Court for confirmation of the High Court’s order.

## Issues

1. Whether limiting benefits under sections 8 and 9 of the Judges’ Remuneration Act and the relevant regulations to a judge’s “spouse,” as confined to legally married heterosexual spouses, constitutes unfair discrimination contrary to section 9 of the Constitution by excluding permanent same-sex life partners.
2. If the provisions are unconstitutional, what remedy is appropriate—specifically, whether a reading-in is justified and what qualification should govern eligibility (including whether a reciprocal duty of support must exist).

## Decision

- The Constitutional Court held that the impugned provisions were inconsistent with the Constitution to the extent that they conferred benefits on a judge’s “spouse” while excluding a judge’s partner in a permanent same-sex life partnership.
- The Court confirmed the High Court’s declaration of invalidity but modified the remedial order.
- The Court ordered a reading-in so that, after the word “spouse” in the relevant provisions, the legislation would be read to include “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support.”
- The Court made the reading-in effective from the date of its judgment.

## Legal Principles

- Excluding permanent same-sex life partners from statutory benefits granted to spouses can violate constitutional equality by constituting unfair discrimination on a listed ground, including sexual orientation.
- Where the law does not allow same-sex couples to marry, restricting benefit schemes to “spouses” in the narrow, marriage-only sense can operate as discrimination based on both sexual orientation and marital status.
- A permanent life partnership may be treated as comparable to marriage for benefit purposes when it is a committed relationship marked by mutual responsibility, including reciprocal duties of support.
- Reading-in is an available constitutional remedy to cure a discriminatory statutory omission when it is consistent with the legislative purpose and is a measured way to extend protection rather than withdraw benefits.
- Courts may tailor a reading-in remedy to set an objective threshold for entitlement, such as requiring proof of a permanent partnership with reciprocal support obligations.

## Conclusion

The Constitutional Court confirmed that the Judges’ Remuneration Act and related regulations were unconstitutional insofar as they provided benefits to judges’ spouses while excluding permanent same-sex life partners, and it cured the defect by reading in language extending benefits to a judge’s partner in a permanent same-sex life partnership where the partners have undertaken reciprocal duties of support, effective from the date of judgment.


Satchwell v. President of the Republic of South Africa and Another, 13 B.H.R.C. 108 (2002)