Same sex couple appeal to Supreme Court
15 March 2021 | Social Issues
A South African married to a Namibian of the same gender plans to appeal a High Court decision at the Supreme Court that denied him the right to call Namibia home.
At the beginning of March, a High Court judge dismissed an appeal brought by Guillermo Delgado Castañeda to review and set aside a Home Affairs decision denying him domicile in Namibia.
Castañeda last year sued authorities after they kicked him out of Namibia on short notice when an immigration officer discovered Castañeda was in a same-sex marriage to Namibian Phillip Lühl.
Castañeda and Lühl have lived in Namibia since 2011 and were married in South Africa in 2014. They have a young son together born to them by surrogacy.
Castañeda’s legal battle to be declared domiciled in Namibia due to his decade-long work in the country and the establishment of a family unit is another example of the country’s homophobic streak, legal experts say.
“In my view, Namibia’s shocking legal treatment of the gay and lesbian community undermines the nation’s commitment to non-discrimination,” Dianne Hubbard of the Legal Assistance Centre (LAC) said in response to the judgment.
She added that the judgment was based on the very narrow legal issue of domicile, and ignored the broader issues at play, including the constitutional protection of families and children.
Castañeda’s lawyer Uno Katjipuka of Nixon Marcus public law says the judgment was “very disappointing”.
In Namibia, foreigners married to Namibian’s of opposite genders are automatically entitled to domicile. “Firstly because my client did everything right and complied with all of Home Affair’s procedures, including applying for domicile.”
She said Castañeda and his husband played open cards with Home Affairs, despite the ministry’s argument that they hid the fact that they were of the same gender.
“Unfortunately, the court opted to adopt a clinical approach to the Immigration Control Act, thereby ignoring the practice adopted by Home Affairs in respect of this domicile certificate,” Katjipuka noted.
In court, Castañeda admitted that while the Namibian law “does not recognise same-sex marriages (yet), I submit that when it comes to the determination of whether I have established domicile in Namibia, the fact that Phillip and I have been in a stable relationship for more than ten years is a relevant factor.”
The judge swept this argument from the table, saying no arguments were made before him to “declare the country’s approach to same-sex marriages unconstitutional”.
Katjipuka added that the court’s order that Castañeda foot the bill of both his and Home Affair’s legal costs “makes no sense whatsoever and is patently unfair towards my client”.
Meanwhile, Castañeda is living in Namibia on a work permit and has applied for an extension of that visa.
Human rights lawyer Norman Tjombe said another strategy for such a case is to advance the argument of “comity of nations”.
This would mean Namibia is obliged to recognise the laws of another sovereign, including the family laws permitting same-sex marriages, so that a “spouse” in the Immigration Control Act is to include “a spouse” in terms of the laws of that sovereign country.
In South Africa, where the couple were married, same-sex marriages have long been legally recognised.
Tjombe noted that the fight for recognition of same-sex marriages in Namibia remains an uphill battle and that growing positive international legal trends would allow stronger arguments in cases such as this.
He added that another option for couple’s in the same boat is to launch “a full attack on the common law definition of a marriage (“a union between a man and a woman to the exclusion of others…”) and thus recognising same-sex marriages.”
Both Hubbard and Tjombe say they are hopeful that of the several pending cases before the court that address the discrimination against same-sex couples, may result in more different outcomes.