Recognition of same-sex unions in Namibia

In December 2017, Namibian citizen Johann Potgieter and his South African husband Daniel Digashu filed a lawsuit to have their marriage conducted in 2015 in South Africa recognised in Namibia. Digashu is not recognised by the state as Potgieter's spouse, causing several legal and bureaucratic problems as he cannot receive permanent residency or citizenship, as is given to married opposite-sex partners. The couple filed their case with the High Court of Namibia.[21][20] In January 2018, officials granted the couple's application to allow Digashu and their son to enter Namibia, as the High Court continued to review their case.[19]

In 2018, a second case was brought to the High Court by lawyer Anita Grobler from Otjiwarongo and her South African spouse Susan Jacobs, together for over 25 years, in an attempt to have their 2009 South African marriage recognized in Namibia and to obtain residency rights for Jacobs.[19] The lawsuit named the Minister of Home Affairs and Immigration as defendant.[15] The Immigration Selection Board decided on 25 July 2019 to approve Jacobs' application for a permanent residence permit. She made the required payment of N$18,000 for the permit, but as of October 2019 it had still not been issued to her.[22] The couple agreed to consider a settlement agreement and the withdrawal of their lawsuit once the residence permit was issued.[23]

A third case was filed in 2018 by Anette Seiler-Liles and her German wife Anita Seiler-Lilles, who have been together since 1998. The couple seeks to have their 2017 German marriage recognized in Namibia.[23] In June 2019, Judge President Petrus Damaseb directed that a full bench of three judges should be designated to hear all pending cases.[19] In September 2019, Potgieter and Digashu agreed to consolidate their court case with Seiler-Lilles.[23][2] Judges Hannelie Prinsloo, Orben Sibeya and Esi Schimming-Chase of the High Court of Namibia heard oral arguments in the combined court case on 20 May 2021. The couples asked the court to recognise their marriages performed outside of Namibia. Senior counsel Raymond Heathcote, representing the plaintiffs, argued that the case does not seek to legalise same-sex marriage in Namibia but seeks to recognise marriages performed elsewhere. He argued that the Constitution gives men and women the right to marry without limitation due to their social status. Heathcote argued that sexual orientation is included under the concepts of sex and social status, two grounds on which the Constitution forbids all discrimination. A judgment was issued on 20 January 2022.[24] The judges agreed in principle with the plaintiffs, but ruled that they were bound by the 2001 Supreme Court decision and as a result could not rule in favour of same-sex marriage. The judges encouraged the couples to appeal to the Supreme Court to have its previous ruling overturned. Judge Prinsloo said, "Only the Supreme Court can correct itself", adding that "it [is] high time the constitution reflect[s] social reality".[25] The couples said they were "disappointed" with the decision but would now consider an appeal to the Supreme Court. Lawyer Carli Schlickerling, representing the plaintiffs, said "The court said to us this morning, 'look, we want to help you, we believe that you should be succeeding on the constitutional issues'. It seems that the court is setting out to the Supreme Court why we should succeed on appeal."[26]