The Namibian government's refusal to recognise same-sex marriages is heading for a test before a full bench of judges of the High Court.
High Court judge president Petrus Damaseb has directed that a full bench of three judges should be designated to hear all pending cases in which same-sex marriages are an issue, according to an order issued in one of those cases in the Windhoek High Court yesterday.
As a result of the judge president's plan to have the matters heard simultaneously, a case in a which a Namibian-born lawyer, Anita Grobler, and her South African spouse, Susan Jacobs, are suing the government in an attempt to have their marriage recognised in Namibia and to obtain residence rights in Namibia for Jacobs, was yesterday postponed to Wednesday next week.
Jacobs and Grobler are suing the government, the minister of home affairs and immigration, Namibia's immigration authorities, the attorney general and the ombudsman in what could turn out to be a groundbreaking case on the status of same-sex marriages in Namibia.
They are asking the High Court to declare that the government and the other respondents in the case recognise their marriage, that Jacobs is Grobler's spouse, that they are a family as envisaged in the Constitution's article protecting the right to marry and found a family, and that they are domiciled in Namibia.
The government, the home affairs minister and the immigration authorities are opposing Jacobs and Grobler's court application.
Whereas Jacobs and Grobler are arguing that their marriage should be recognised under Namibian law, the government has adopted a more conservative stance, arguing that same-sex marriages are not recognised in terms of current Namibian law, and that the Supreme Court has also ruled in 2001 that the Constitution did not provide protection to same-sex relationships or families founded by same-sex partners.
According to Jacobs and Grobler, they have been partners in a relationship since 1993 and were married in South Africa, in terms of that country's Civil Union Act, in October 2009.
In June 2016, they decided that they wanted to move to Namibia, where Grobler was born and of which she is a citizen by birth. Since then, they have bought a property at Swakopmund, and in June last year, Jacobs moved to the coastal town. Grobler stayed behind in South Africa at that stage to continue working as a lawyer while awaiting her admission as a legal practitioner in Namibia, Jacobs recounts in an affidavit filed at the court.
Jacobs says she entered Namibia on a visitor's entry permit, but when she applied to have the permit extended in September last year, her application was turned down.
She and Grobler then filed an urgent application against the government, of which the case postponed yesterday is a part. The urgent application was partly settled in September last year, when the government agreed to issue a new visitor's entry permit to Jacobs for a period of 12 months, pending the outcome of the remainder of her and Grobler's case.
Jacobs states in her affidavit: "[W]e strongly feel we deserve the extension, based on the fact I am legally married to a Namibian citizen."
She also alleges that an immigration agent who handled her application to have her permit extended received an indication from a home affairs official that her application was to be rejected "since our 'gay marriage' was not recognised by the Namibian government".
Jacobs states in her affidavit: "I am domiciled in Namibia. Anita is a Namibian citizen. Furthermore, I am aggrieved by the bias, unreasonable and unfair conduct meted out against us by home affairs, which infringes not only my, but also my family's dignity."
She also claims the home affairs ministry's view that her marriage to Grobler is not recognised by Namibian law is not correct.
"I say the respondents discriminate against me based on our sexual orientation [... ]," Jacobs says.
She further argues that she and Grobler have equal rights to marriage and that they are a family, as envisaged under the Constitution.
Jacobs states: "[T]here is nothing in any Namibian law or statute which formally recognises the marriage of a husband and wife who got married in another country. Those marriages are simply recognised. The same should be the case with our marriage. It is a formal, authorised and lawful marriage which was entered into in accordance with the laws of South Africa."
In an answering affidavit, Patrick Nandago, former permanent secretary in the Ministry of Home Affairs and Immigration, says that according to a past Supreme Court decision, "marriage in terms of Namibian law is between a man and a woman".
According to Nandago, the Immigration Control Act's section stating that someone married to a Namibian citizen and living in Namibia has domicile in the country does not apply to Jacobs, as she is not a spouse as defined in that law, "in that her marriage is not a natural and fundamental group unit of society entitled to the protection by society and the state".
Same-sex marriages have been recognised under South African law since 2006. It is also recognised in nearly 30 other countries, including the United States, Canada, the United Kingdom, Germany, France, Brazil, Argentina and Taiwan.