A FULL High Court bench consisting of justices Hannelie Prinsloo, Esi Schimming-Chase and Orben Sibeya, yesterday dismissed an attempt by two Namibians and their foreign partners to have their marriages recognised in Namibia.
This is despite the judges expressing frustration that they, in deciding, are still constrained by a 20-year-old Supreme Court judgement that concluded homosexual relationships are not legal, thus the High Court cannot overrule the Supreme Court.
Prinsloo pointed out that the applicants’ lawyer said the cases are not about legalising same-sex marriage in Namibia but are about treating a non-Namibian spouse in a same-sex union, the same as a foreign spouse in a heterosexual marriage. The judge observed that same-sex relationships are widely accepted around the world, thus it is high time for the Namibian Constitution to reflect the fact that such connections are woven into the fabric of Namibian society.
The applicants who had brought the application before the High Court against the Ministry of Home Affairs and Immigration, are South African, Daniel Digashu, and his Namibian husband, Johann Potgieter, who tied the knot in South Africa and had their landmark case heard last May.
Whilst, Annette Seiler, a Namibian, and her German wife, Anita Seiler-Lilles, intended to migrate and retire in Namibia. They filed a lawsuit against the government when the ministry denied Seiler-Lilles’ application for permanent residency because it does not recognise their same-sex marriage in Germany.
Digashu and his Lawyer, Carli Schickerling’s reactions to the judgement was that, “in layman’s terms I think the court said to us this morning look we want to help you, we believe that you should be succeeding on the constitutional issues but we are bound, in terms of the rule of law to the previous decision by Frank in the Supreme Court and that has to be specifically dealt with by the Supreme Court.”
On the way forward the advocate said that they have not decided yet with her clients but the general feeling, especially with the reason of the judgement, is that they will appeal as the court has “basically advised them to appeal”.
“There were some things in the judgement we did not understand but it does not feel like a total loss and we are moderately satisfied,” Schickerling affirms.
The couples lawfully married in South Africa and Germany state that the ministry’s refusal to recognise their civil unions have impacted the families’ rights to be recognised as guardians of their children and to be domiciled in Namibia.