SALC: On 16 May 2023, The Supreme Court of Namibia ruled that Namibia’s immigration laws must recognise same-sex marriages validly concluded outside Namibia, setting aside the High Court decision of 20 January 2022.
In August 2017, Daniel Digashu, a South African Citizen and Johann Potgieter, a Namibian citizen, approached the High Court of Namibia after the Ministry of Home Affairs and Immigration denied Digashu, a South African citizen, a work permit based on their same-sex marital status. Similarly, Namibian-born Anete Seiler and German-born Anita Seiler-Lilles approached the High Court of Namibia after Anita was denied permanent residence based on their marital status.
The High Court, comprised of three judges, dismissed their applications. The High Court held that the Constitution of Namibia prohibited discrimination based on sexual orientation; however, it could not grant the couples’ applications because of a 2001 judgement by the Supreme Court of Namibia in Immigration Selection Board v Frank, which refused to recognise the rights of same-sex partners under the Immigration Act. The High Court criticised the discrimination that was levelled at the Applicants and the earlier judgement of the Supreme Court; however, it felt bound by the Supreme Court decision.
The Appellants argued that the facts in the Frank case differed in that their relationship was not recognised in terms of the law. The applicants in the Frank case were in a long-term committed relationship, whereas in the case of Digashu and Seiller-Lilles, the Appellants’ relationships were valid regarding the law of the countries they were respectively concluded in.
Photo: flickr.com/JJ Vos