Same-sex couples join forces

05 September 2019 | Justice

The stage is set for a landmark constitutional challenge following a decision by two married couples to join legal forces in a bid to have their same-sex marriages and residential rights recognised In Namibia irrespective of their gender.

Namibian citizen Johann Potgieter and his South African spouse, Daniel Digashu, this week informed High Court Judge Harald Geier they had agreed to consolidate their case with that of German national Anita Seiler-Lilles and her wife, Namibian Anette Seiler, in order to tackle Namibia's unequal marriage rights.

Potgieter and Digashu were married four years ago in South Africa, the only African country in which gay marriage is legal.

They launched their High Court case in 2017, shortly after returning to Namibia with their adoptive son, following a barrage of obstacles to securely settle down in Namibia because of government's refusal to recognise same-sex marriages.

Seiler-Lilles met her wife in 1998. In 2004, they formalised their relationship in Germany as a “life partnership”, but were able to marry each other legally in 2017 when Germany legalised same-sex marriages.

Their case was also lodged late last year following various hurdles faced, notably with immigration authorities.

Their decision to combine their cases follows a June directive by High Court Judge President Petrus Damaseb that applicants whose lawsuits raise issues on same-sex marriages should inform the court whether they would agree to have their cases heard together before a full bench.

The papers filed by the legal team for the two couples this week informed Geier they had agreed that their two cases be heard together, and that a full bench should hear the two cases in their entirety.

The parties also agreed that both cases raised the same constitutional issues.

In her founding affidavit, Seiler-Lilles wrote that “discrimination against gay and lesbian couples by Home Affairs is an ever-present problem in Namibia.”

Her affidavit lists numerous incidents in which her fundamental human rights were ignored or defied by immigration officials and others, in her attempts to settle down in the country with her wife, despite her ownership of immoveable property and strong financial position.

In a third case, South African Julia Susan Jacobs and her Namibian spouse Anita Grobler this week informed the court they were considering a possible settlement agreement and a withdrawal of their lawsuit under certain conditions.

In papers filed on Tuesday, Jacob and Grobler's legal team stated that Jacob's application for Namibian permanent residence had been approved in late July this year.

In light of this development, the couple said they were waiting for the issuing of the permanent residence certificate.

The court was informed that “in principle” the parties agreed to settle the matter on the basis that the application be withdrawn and each party bear its own costs.

A notice of withdrawal would be filed by Jacobs once the permanent residence certificate was issued, the court was informed.

The matter was postponed to 2 October for a status hearing.

The two joined cases were postponed to 18 September for a status hearing and to enable the parties to address outstanding legal matters.

Not unusual

Legal experts say it is not unusual to join cases dealing with similar issues. This option could lower the costs and make the lawsuits more effective.

Moreover, if such cases are heard separately by different judges, it could result in different conclusions on the same issues and lead to complications around the issues at stake.

Namibian Sun recently reported that in the cases where the parties named various government ministries and institutions as respondents, only the ombudsman's office declined to oppose the application.

Ombudsman John Walters told Namibian Sun: “As a human rights defender, how can I oppose the right for marriage to be recognised in this country? I have at all times defended and tried to protect and advance the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.”

Carli Schickerling represents both applicants in the case, while the State is represented by Monique Meyer.

[email protected]


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