THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no: 232/2003
REPORTABLE
MARIÉ ADRIAANA FOURIE First appellant
CECELIA JOHANNA BONTHUYS Second appellant
and
MINISTER OF HOME AFFAIRS First Respondent
DIRECTOR-GENERAL OF HOME AFFAIRS
Second Respondent
and
LESBIAN AND GAY EQUALITY PROJECT Amicus Curiae
Before: Farlam JA, Cameron JA, Mthiyane JA, van
Heerden JA and Ponnan AJA
Appeal: Monday 23 August 2004
Judgment: Tuesday 30 November 2004
Constitution – Bill of Rights – Right to equality – Sexual orientation
– Right to marry – Development of common law – Definition of
marriage developed to includ e same-sex partners – Order
developing common law not to be suspended – ORDER IN PARA
49
JUDGMENT
_____________________________________________________
2
CAMERON JA:
[1] I am indebted to my colleague Farlam JA for the benefit of
reading his judgment. On the ma in question, the development
of the common law, we agree. We differ in our approach to
one aspect of the Marriage Act 25 of 1961, an d on whether the
order should be suspended. In view of this and other
differences I propose briefly to set out my r easons for allowing
the appeal, without the order of suspension Farlam JA
proposes.
[2] The appellants are two adult persons who on the undisputed
evidence love each other. They feel and have deliberately
expressed an exclusive commitment to each other for life. The
question is whethe r the common law of this country allows
them to marry. That question is controversial because they are
of the same sex. Until now, ma rriage as a social and legal
institution has been understood to be reserved for couples of
opposite sexes. Joined by the Lesbian and Gay Equality
Project as amicus, the appellants – two women who more than
ten years ago dedicated themselves to a life together – ask the
court to issue a declaration that thi s is not so. They wish to be
married, they testify, ‘for the very reason that the bond between
3
us is so genuin e and serious’,1 and because not being able to
marry presents a host of practi cal and legal im pediments to
their shared life.
[3] They raise no statutory cha llenge. Instead, their founding
affidavit asks the court to gran t them relief by invoking its
jurisdiction to deve lop the common law in accordance with the
Constitution. In the Pretoria High Court Roux J dismissed their
application on the ground that the relief they sought was
incompatible with the Marriage Act 25 of 1961. He ordered
them and the amicus to pay the co sts of the resp ondents (the
Minister and Director-General o f H o m e A f f a i r s ) . ( T h e
respondents later abandoned the costs order against the
amicus.)
[4] The Constitution grants inhere nt power to the Constitutional
Court, the Supreme Court of Appeal and the High Courts ‘to
develop the common law, taking into account the interests of
justice’ (s 173). The Bill of Rights (s 8( 3)) provides that when
applying a provision of the Bill of Rights to a natural or juristic
person a court, in order to give ef fect to a right in the Bill, ‘must
apply, or if necessary develop, the common law to the extent
1 Founding affidavit para 16: ‘Juis ook omdat die verbintenis tussen ons so eg en ernstig is,
voel ons om in die eg verbind te word.’
4
that legislation does not give effec t to that right’ (though it may
develop the rules of the commo n law to limit the right in
accordance with the lim itations provision in s 36(1)). It also
provides that when dev eloping the common law, a court ‘must
promote the spirit, purport and ob jects of the Bill of Rights’ (s
39(2)).
[5] Taken togeth er, these provisions create an imperative
normative setting that obliges courts to develop the common
law in accordance with the spirit , purport and objects of the Bill
of Rights. Doing so is not a ch oice. Where the common law is
deficient, the courts are under a general obligation to develop it
appropriately.2
[6] This provides the background to our task in the appeal. At its
centre is the fact that our Cons titution expres sly enshrines
equality on the ground of sexual orientation. 3 When this took
effect at the birt h of our democracy on 27 April 1994, 4 it was
2 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies intervening)
2001 (4) SA 938 (CC) paras 34 and 39, per Ackermann and Goldstone JJ on behalf of the
Court.
3 Bill of Rights s 9(3): ‘The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.’ Section 9(4): ‘No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair discrimination.’ Section 9(5):
‘Discrimination on one or more grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair.’
4 Interim Constitution, Act 200 of 1993, s 8(2): ‘No person shall be unfairly discriminated
against, directly or indirectly, and, without derogating from the generality of this provision, on
one or more of the following grounds in particular: race, gender, sex, ethnic or social origin,
5
unique: at the time no othe r country’s found ing document
outlawed unfair discrimination on the expre ss ground of sexual
orientation. Its inclusion in the list of condit ions specially
protected against unfair discr imination was both novel and
bold. 5 This is important to em phasise, not because our
decision requires boldness, bu t because the reasons for
including sexual orientation in the Constitution illuminate our
path.
[7] Through more than 300 years, the primar y criterion for civic
and social subordination in So uth Africa was race. On the
basis of their skin colour , black women and men were
subjected to a host of systematic indigniti es and exclusions.
These included denial of voting ri ghts and citizenship. What
was unique about apar theid was not that it involved racial
humiliation and disadvantage – for recent European history has
afforded more obliterati ng realisations of ra cism – but the fact
that its iniquities were enshrin ed in law. More than anywhere
else, apartheid enacted racism th rough minute el aboration in
systematised legal regulation. As a consequence, the dogma
colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.’
5 The inclusion of sexual orientation in our Constitution is recounted in LM du Plessis and HM
Corder Understanding South Africa’s Transitional Bill of Rights (Juta, 1994) ch 5 pages 139-
144; Carl F Stychin A Nation by Rights (Temple University Press, 1998) ch 3 pages 52-88;
Richard Spitz and Matthew Chaskalson The Politics of Transition – a hidden history of South
Africa’s negotiated settlement (Witwatersrand University Press, 2000) ch 15 pages 301-312.
6
of race infected not onl y our national life but the practice of law
and our courts’ jurisprudence at every level.
[8] Yet despite this rank history, th e negotiating founders
determined that our aspirations as a nation and the structures
for their realisation should be embodied in a constitution that
would regulate contesting claims through law. This decision
embodied a paradox. Though ap artheid used le gal means to
exclude the majority of this co untry’s people from civic and
material justice, the law – em bodied in a d etailed founding
document – would now form the basis for ou r national
aspirations. This paradox lie s at the core of our national
project – that we came from opp ression by law, but resolved to
seek our future, free from oppression, in regulation by law. Our
constitutional history thus involves –
‘a transition from a society based on division, injustice and exclusion from
the democratic process to one which respects the dignity of all citizens,
and includes all in the process of governance’.
6
[9] In expressing this vision of our future, the foun ders committed
themselves to a conception of our nationhood that was both
very wide and very inclusive. In this lay a further paradox: for
the very extent of past lega l exclusion and denigration now
6 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty)
Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) para 21, per
Langa DP.
7
determined the gene rosity of the pr otection that the
Constitution offered. It was because the majority of South
Africans had experienced th e humiliating legal effect of
repressive colonial conceptions of race and gender that they
determined that henceforth the role of the law would be
different for all South Afri cans. Having themselves
experienced the indignity and pain of legally regulated
subordination, and the injustice of exclusion and humiliation
through law, the majority committed this countr y to particularly
generous constitutional protections for all South Africans.
[10] These paradoxes illum inate the significance of the
Constitution’s promise of freedom from unfair discrimination on
the ground of sexual orientation. For though oppression on the
ground of sexual or ientation was not par amount in the scheme
of historical injustic e, it formed part of it, and the negotiating
founders deliberately committed our nation to a course that
disavowed all forms of legalis ed oppression and injustice. 7
Instead of selective remediati on of the badges of repression
and dishonour, all criteria of unfair discrimination were
7 Compare the position regarding gender discrimination as set out in Brink v Kitshoff NO 1996
(4) SA 197 (CC) para 44, per O’Regan J for the Court: ‘Although in our society discrimination
on grounds of sex has not been as visible, nor as widely condemned, as discrimination on
grounds of race, it has nevertheless resulted in deep patterns of disadvantage. These
patterns of disadvantage are particularly acute in the case of black women, as race and
gender discrimination overlap. That all such discrimination needs to be eradicated from our
society is a key message of the Constitution.’
8
renounced in favour of an ample comm itment to equality under
law. The national project of liberation woul d not be mean-
spirited and narrow but would encompass all bases of unjust
denigration. Non-discrimin ation on the ground of sexual
orientation was to be a part – pe rhaps a relatively small part,
but an integral part – of the greater project of racial
reconciliation and gender and so cial justice through law to
which the Constitution committed us.
[11] The fact that ho mosexuality was in 1994 and still is a
controversial issue in Africa, as elsewher e in the world, did not
deflect from this commitment. The equality clause went further
than elsewhere in Africa: but this was because the legal
subordination imposed by colo nialism and ap artheid went
further than anywhere else in Africa. It lasted longer, was more
calculated, more intrusive, more pervasive and more injurious.
In response the negotiating founders offered the humane vision
of nationhood on the basis of expansive legal protections.
[12] This setting ex plains the ‘strides’ 8 that our equality
jurisprudence has taken in resp ect of gays and lesbians in the
last ten years. Consensual sex ual conduct betwe en adults in
private has been freed from cr iminal restriction, not only
8 Daniels v Campbell NO 2004 (5) SA 331 (CC) para 103, per Moseneke J.
9
because sexual orientation is spec ifically listed in the Bill of
Rights, but on wider grounds of dignity and privacy.9 Same-sex
partners have been held to be e ntitled to access to statutory
health insurance schemes.10 The right of permanent same-sex
partners to equal spou sal benefits provided in legislation has
been asserted. 11 The protection and nurturance same-sex
partners can jointly offer childr en in need of ad option has been
put on equal footing with heterosexual couples.12 The right of a
same-sex partner not giving birth to a child conceived by
artificial insemination to become the legitimate parent of the
child has been confirmed. 13 The equal right of same-sex
partners to beneficial immigr ant status has been established. 14
And this Court has developed the common law by extending
the spouse’s action for loss of support to partners in permanent
same-sex life relationships.15
[13] The importance of these case s lies not merely in what they
decided, but in the far-reaching doctrines of dign ity, equality
9 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)
paras 28-32, per Ackermann J for the Court; paras 108-129, per Sachs J (with whose
sentiments Ackermann J associated himself – para 78).
10 Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T), per Roux J.
11 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC), per Madala J for
the Court.
12 Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC), per
Skweyiya AJ for the Court.
13 J v Director General: Department of Home Affairs 2003 (5) SA 621 (CC), per Goldstone J
for the Court.
14 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC), per Ackermann J for the Court.
15 Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA), per Cloete JA for the Court.
10
and inclusive moral citizenship16 they articulate. They establish
the following:
(a) Gays and lesbians are a pe rmanent minority in society
who in the past have su ffered from patterns of
disadvantage. Because they are a minority unable on
their own to use political po wer to secure legislative
advantages, they are exclusiv ely reliant on the Bill of
Rights for their protection.17
(b) The impact of discrimination on them has been severe,
affecting their dignity, pe rsonhood and identity at many
levels.18
(c) ‘The sting of pas t and continuing discrimination against
both gays and lesbians’ lies in the message it conveys,
namely that, viewed as indivi duals or in their same-sex
relationships, they ‘do not have the inherent dignity and
are not worthy of the human respec t possessed by and
accorded to heteros exuals and their rel ationships’. This
‘denies to gays and lesbians that which is foundational to
our Constitution and the concepts of equality and dignity’,
16 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)
paras 107 and 127, per Sachs J.
17 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)
para 25.
18 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)
para 26(a).
11
namely that ‘all persons have the sa me inherent worth
and dignity’, whatever their other differences may be.19
(d) Continuing discrimination agai nst gays and lesbians must
be assessed on the basis that marriage and the family are
vital social institutions. The legal obligations arising from
them perform important social functions. 20 They provide
for security, support an d companionship between
members of our society and pl ay a pivotal role in the
rearing of children.21
(e) Family life as contemplat ed by the Cons titution can be
constituted in different ways and legal conceptions of the
family and what constitutes family life should change as
social practices and traditions change.22
(f) Permanent same-sex life partners are entitled to found
their relationships in a mann er that accords with their
sexual orientation: such rela tionships should not be
subject to unfair discrimination.23
19 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) para 42, per Ackermann J.
20 Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 31, per O’Regan J for the
Court, applied in Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC)
para 13.
21 Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) para 19.
22 Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) para 19.
23 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 15. See too
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
para 82.
12
(g) Gays and lesbians in same -sex life partnerships are ‘as
capable as heterosexual sp ouses of expressing and
sharing love in its manifold fo rms’. They are likewise ‘as
capable of forming inti mate, permanent, committed,
monogamous, loyal and endur ing relationships; of
furnishing emoti onal and spiritua l support; and of
providing physical ca re, financial supp ort and assistance
in running the common household’. They ‘are individually
able to adopt children and in the case of lesbians to bear
them’. They have in short ‘the same ability to establish a
consortium omnis vitae ’. Finally, they are ‘capable of
constituting a family, whether nuclear or extended, and of
establishing, enjoying and benefiting from family life’ in a
way that is ‘not distinguishabl e in any significant respect
from that of heterosexual spouses’.24
(h) The decisions of the courts regarding gays and lesbians
should be seen as part of the growing acceptance of
difference in an increasingl y open and pluralistic South
Africa that is vital to the society the Constitution
contemplates.25
24 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) para 53(iv)-(viii), per Ackermann J.
25 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)
13
(i) Same-sex marriage is not unknown to certain African
traditional societies.26
[14] These propositions point our way. At issue is access to an
institution that all agree is vital to society and central to social
life and human relationships. More than this , marriage and the
capacity to get marri ed remain centra l to our self-definition as
humans. As Madala J has poi nted out, not everyone may
choose to get married: but heterosexual couples have the
choice.27 The capacity to choose to get married enhances the
liberty, the autonomy and the dignity of a couple committed for
life to each other. It offers them the op tion of entering an
honourable and profound estate that is ador ned with legal and
social recognition, rewarded with many privileges and secured
by many automatic obligations. 28 It offers a so cial and legal
shrine for love and for commitment and for a future shared with
another human being to the exclusion of all others.
[15] The current common law definition of marriage deprives
committed same-sex couples of this choice. In this our
para 138 and para 107, per Sachs J.
26 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 12, per
Madala J.
27 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 16.
28 See Harksen v Lane NO 1998 (1) SA 300 (CC) para 93, per O’Regan J (Madala and
Mokgoro JJ concurring) (‘marital status is a matter of significant importance to all individuals,
closely related to human dignity and liberty’) and compare Dawood v Minister of Home Affairs
2000 (3) SA 936 (CC) para 30, per O’Regan J for the Court (‘such relationships have more
than personal significance, at least in part because human beings are social beings whose
humanity is expressed through their relationships with others’).
14
common law denies gays and lesb ians who wish to solemnise
their union a host of benefits, protec tions and duties.
Legislation has ameliorated, 29 but not eliminated, 30 the
disadvantage same-s ex couples suffer. 31 More deeply, the
exclusionary definition of marr iage injures gays and lesbians
because it implies a judgment on them. It suggests not only
that their relationship s and commitments an d loving bonds are
inferior, but that they themselves can never be fully part of the
community of moral equals that the Constitution promises to
create for all.
[16] The vivid message of the decisions of th e last ten years is
that this exclusion cannot accord with the meaning of the
Constitution, and that it ‘undermines the values which underlie
an open and democratic soci ety based on freedom and
equality’.32 In the absence of just ification, it cannot but
constitute unfair discrimination that violates the equality and
other guarantees in the Bill of Rights.
29 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) para 37 (‘A notable and significant development in our statute law in recent years has
been the extent of express and implied recognition the Legislature has accorded same-sex
partnerships’).
30 J v Director General: Department of Home Affairs 2003 (5) SA 621 (CC) para 23
(‘Comprehensive legislation regularising relationships between gay and lesbian persons is
necessary’).
31 Compare Halpern v Attorney-General of Canada 225 DLR 529 (Ontario Court of Appeal)
para 104 (piecemeal legislation extending benefits to same-sex couples may impose pre-
conditions while ‘married couples have instant access to all benefits and obligations’).
32 Tshepo L Mosikatsana ‘The Definitional Exclusion of Gays and Lesbians from Family
Status’ (1996) 12 SAJHR 549 566.
15
[17] The justification respondents ’ counsel suggested in this case
was in essence that the procreative purpose that is usually and
rightly associated with marriage re quires that the institution be
restricted to heterosexual couples only. But this does not pass.
The suggestion that gays and le sbians cannot procreate has
already been authoritativel y rejected as a mistaken
stereotype.33 In any event the Consti tutional Court has held
that ‘from a legal and constitutional point of view procreative
potential is not a defining characte ristic of conjugal
relationships’.34
[18] The appellants moreover do not seek to limit procreative
heterosexual marriage in any way. They wish to be admitted to
its advantages, notwithstanding the same-sex nature of their
relationship. Their wish is not to deprive others of any rights. It
is to gain access for themselves without limiting that enjoyed by
others. Denying them this, to quote Marshall CJ in the
Massachusetts Supreme Court of Judicature, ‘works a deep
and scarring hardship on a very real segment of the community
for no rational reason.’ 35 Marshall CJ elaborated thus:
33 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) para 50.
34 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) para 51, per Ackermann J for the Court.
35 Goodridge v Department of Public Health 440 Mass 309, 798 NE 2d 941 para 63; and see
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
16
‘Here, the plaintiffs seek only to be married, not to undermine the
institution of civil marriage. They do not want marriage abolished. They
do not attack the binary nature of marriage, the consanguinity provisions,
or any of the other gate-keeping provisions of the marriage licensing law.
Recognizing the right of an individual to marry a person of the same sex
will not diminish the validity or dignity of opposite-sex marriage, any more
than recognizing the right of an individual to marry a person of a different
race devalues the marriage of a person who marries someone of her own
race. If anything, extending civil marriage to same-sex couples reinforces
the importance of marriage to individuals and communities. That same-
sex couples are willing to embrace marriage’s solemn obligations of
exclusivity, mutual support, and commitment to one another is a
testament to the enduring place of marriage in our laws and in the human
spirit.’ (para 57)
[19] It is for this reason that the question of extending marriage to
same-sex couples involves such intense and pure questions of
principle. As Sachs J has ob served in a diff erent setting,
‘because neither power nor specif ic resource a llocation are at
issue, sexual orientation be comes a moral focus in our
constitutional order’. 36 The focus in this case falls on the
intrinsic nature of marriage, and the question is whether any
aspect of same-sex relationshi ps justifies excluding gays and
lesbians from it. What the Consti tution asks in such a case is
that we look beyond the unavoida ble specificities of our
condition – such as race, gender and sexual orientation – and
consider our intrinsic human c apacities and what they render
possible for all of us. In this case, the question is whether the
para 56 (‘there is no rational connection between the exclusion of same-sex life partners …
and the government interest sought to be achieved thereby, namely the protection of families
and the family life of heterosexual spouses’).
36 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)
para 128.
17
capacity for commitment, and the ability to love and nurture
and honour and sustain, tran scends the incidental fact of
sexual orientation. The answer suggested by th e Constitution
itself and by ten years of development under it is Yes.
[20] The remaining ju stification sought to be advanced – impliedly
if not expressly – invokes th e acknowledged fact that most
South Africans still think of marriage as a heterosexual
institution, and that many may view its extensi on to gays and
lesbians with apprehe nsion and disfavour. Six years ago, the
Constitutional Court acknowledged that revoking the criminal
prohibitions on private consensu al homosexual acts touched
‘deep convictions’ and evoked ‘strong emotions’, and that
contrary views were not c onfined to ‘crude bigots only’.37 We
must do the same. Our task is to develop the common law in
accordance with the spirit, pur port and objects of the Bill of
Rights. In this our sole duty lie s to the Consti tution: but those
we engage with most deeply in explaining what that duty
entails is the nati on, whose understandin g of and commitment
to constitutional valu es is essential if the larger project of
securing justice and equality under law for all is to succeed.
37 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)
para 38.
18
[21] In interpreting and applying the Constitution we therefore
move with care and respec t, and with appreciation that a
diverse and plural society is diverse and plural precisely
because not everyone agrees on what the Co nstitution entails.
Respect for difference requires respect also for divergent views
about constitutional values and outcomes.
[22] It is also necess ary to be mindful, as the Constitutional Court
reminds us, ‘of the fact that the major engine for law reform
should be the Legisla ture and not the Judiciary’.38 In the same
breath in which it issued this cautionary, how ever, the Court
drew attention to the imperative need for the common law to be
consonant with ‘a completely new and differen t set of legal
norms’. It therefore urged that co urts ‘remain vigilant’ and not
‘hesitate to ensure that the common law is de veloped to reflect
the spirit, purport and objects of the Bill of Rights’.39
[23] In moving forward we also b ear in mind that the meaning of
our constitutional promises and guarantees did not transpire
instantaneously. Establishing their import involves a process of
evolving insight and application.40 Developing the common law
38 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies intervening)
2001 (4) SA 938 (CC) para 36.
39 Carmichele para 36.
40 See Van Rooyen and others v The State and others (General Council of the Bar of South
Africa intervening) 2002 (5) SA 246 (CC) para 75 (judicial independence is ‘an evolving
concept’) and para 249 (practical reasons ‘at this stage of the evolving process of judicial
19
involves a simultaneously creati ve and declarato ry function in
which the court puts the final touch on a process of incremental
legal development that the Constituti on has already ordained.
This requires a dee pening understanding of ourselves and our
commitment to each other as South Africans across the lines of
race, gender, religion and sexual orientation. As Ngcobo J has
stated:
‘Our Constitution contemplates that there will be a coherent system of law
built on the foundations of the Bill of Rights, in which common law and
indigenous law should be developed and legislation should be interpreted
so as to be consistent with the Bill of Rights and with our obligations
under international law. In this sense the Constitution demands a change
in the legal norms and the values of our society.’
41
[24] This process also requires faith in the capacity of all to adapt
and to accept new entrants to the moral parity and equal
dignity of constitutionalism. Judges are thus entitled to put faith
in the sound choices the foundi ng negotiators made on behalf
of all South Africans in writing the Constitution. And they are
entitled also to trust that South Africans ar e prepared to accept
the evolving implications that those choices entail.
[25] The task of applying the valu es in the Bill of Rights to the
common law thus requires us to put faith in both the values
themselves and in the peopl e whose duly elected
independence’ may justify constitutionally undesirable temporary appointments).
41 Daniels v Campbell NO 2004 (5) SA 331 (CC) para 56.
20
representatives created a visionary and inclusive constitutional
structure that offered acceptance and justice across diversity to
all. The South African public and their elected representatives
have for the greater part acc epted the sometimes far-reaching
decisions taken in r egard to sexual or ientation and other
constitutional rights over the past ten years. It is not
presumptuous to believe that they will accept also the further
incremental development of the common law that the
Constitution requires in this case.
Relief the appellants seek: the Marriage Act 25 of 1961
[26] In their founding affidavit the appellants ask the Court to
develop the common law to rec ognise same-sex marriages.
Their notice of motion seeks to cast this relief by way of a
declarator that their (proposed) marriage be recognised as a
valid marriage in terms of the Marriage Act 25 of 1961, and that
the Minister and Dire ctor-General of Home Affairs be directed
to register their marr iage in terms of the Marriage Act and the
Identification Act 68 of 1997. In the High Court, Roux J
concluded that the provisions of the Marriage Act were
‘peremptory’ and that they constituted an obstacle to granting
the appellants any relief. This is not correct.
21
[27] The Marriage Act co ntains no definition of marriage. It was
enacted on the assum ption – unquestioned at the time – that
the common law definition of marriage applied only to opposite-
sex marriages. That definitio n underlies the statute. This
Court has now developed it to encompass same-sex
marriages. The impediment the statute presents to the broader
relief the appellants seek is only partial. This lie s in the fact
that s 30(1) prescribes a default – but not exclusive – marriage
formula. That formula must be used by (a) marriage officers
who are not ministers of religi on or persons holding a
‘responsible position’ in a religious denomination or
organisation; and (b) marriage officers who are ministers of
religion or who do hold such a position, but whose marriage
formulae have not receiv ed ministerial approval. 42 The statute
requires that such marriage off icers ‘shall put ’ the default
formula to the couple, and it re quires each to answer the
question whether they accept the other ‘as your lawful wife (or
42 Marriage Act 25 of 1961, s 30(1): ‘In solemnizing any marriage any marriage officer
designated under section 3 may follow the marriage formula usually observed by his religious
denomination or organisation if such marriage formula has been approved by the Minister [of
Home Affairs], but if such marriage formula has not been approved by the Minister, or in the
case of any other marriage officer, the marriage officer concerned shall put the following
questions to each of the parties separately, each of whom shall reply thereto in the
affirmative:
“Do you, A.B., declare that as far as you know there is no lawful impediment to your
proposed marriage with C.D. here present, and that you call all here present to
witness that you take C.D. as your lawful wife (or husband)?”,
and thereupon the parties shall each give each other the right hand and the marriage officer
concerned shall declare the marriage solemnized in the following words:
“I declare that A.B. and C.D. here present have been lawfully married.”.’
22
husband)’. The statute empo wers the Minister however to
approve religious formulae that differ from the default formula.
[28] Farlam JA su ggests that we can change even the default
formula by a proce ss of innovative and ‘updating’ statutory
interpretation by reading ‘wife (or husband)’ in this provision as
‘spouse’. I cannot ag ree. There are two principal reasons.
The first is that I th ink this would go ra dically further than the
process of statuto ry interpretation can appropriately
countenance. The second is that in my view the particular
words, because of their nature an d the role the statute assigns
to them, are not susceptible to the suggested interpretative
process.
[29] First, as Ackerm ann J explained in the Home Affairs case,
there is ‘a clear di stinction’ between interpreting legislation in
conformity with the Constitution and its values, and granting the
constitutional remedies of reading in or se verance. The two
processes are ‘fundamentally different’:
‘The first process, being an interpretative one, is limited to what the text is
reasonably capable of meaning. The latter can only take place after the
statutory provision in question, notwithstanding the application of all
legitimate interpretative aids, is found to be constitutionally invalid.’
43
43 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) para 24.
23
[30] That it is not always easy to determine ‘what the text is
reasonably capable of m eaning’ emerges from Daniels v
Campbell.44 In a split decision, the Constitutional Court held
that the word ‘spouse’ in the Intestate Su ccession Act 81 of
1987 can be read to include th e surviving partner to a
monogamous Muslim marriage. The majority came to this
conclusion after distinguishi ng the position of same-sex
partners, who, that Cour t had previously held, 45 could not be
read as being included in statutory references to ‘spouse’. The
majority held, per Sachs J, that central to the C ourt’s previous
decisions to this effect ‘was a legal finding that it would place
an unacceptable degr ee of strain on the word “spouse” to
include within its ambit parties to a same-sex life partnership’.46
The majority also concluded, per Ngcobo J, that the previous
decisions ‘must be understood to hold that the word “spouse”
cannot be construed to include persons who are not married.’47
Moseneke J agreed with the re sult but considered that the
44 2004 (5) SA 331 (CC).
45 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) para 25; Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para
9.
46 Daniels v Campbell NO 2004 (5) SA 331 (CC) para 33.
47 Daniels para 62.
24
provision should be declared un constitutionally narrow and the
remedial process of ‘reading in’ adopted.48
[31] The majority in Daniels assigned a broad m eaning to a word
whose purport was not certain. It applied the co nstitutionally
interpretative approach. This involved attributing a wide
meaning to a word, without changing the word. The approach
suggested by Farlam JA goes radically further. It does not
assign a broad meanin g to a contested word or phrase, but
substitutes a phrase with an entirely different word. In the
circumstances of this case I do not consider that this is
permissible. Radicall y innovative statutory interpretations of
this kind were devised, as the authority Farlam JA quotes
shows, for jurisdictions which do not, or at the time did not,
have the ample remedies of co nstitutionalism. Under our
Constitution, the proper interpr etative approach is plain. 49 If
statutory wording cannot reason ably bear the meaning that
constitutional validity requires, then it must be declared invalid
and the ‘reading in’ remedy adopted.
48 Daniels paras 64-111.
49 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC) para 24; Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545
(CC) paras 21-26.
25
[32] Second. Most statutory provisions create norms that guide
state officials and others who ex ercise power. When their
interpretation is at issue, the qu estion is how broadly or
narrowly they apply. Section 30 (1) does not crea te a norm for
the application of state power. It descri bes an action. It
prescribes a verbal formula that must be uttered if the legal
consequences of lawful marri age are to foll ow. What it
requires is action that must be performed if the parties’
personal status is to be changed in relation to each other and
the world. The action consis ts in the utterance of specified
words. But it is action no le ss. The statutory formula in other
words encodes a ‘per formative utterance’50 which the statute
requires as a precondition to the happening of the marriage
and its legal consequences.
[33] In my view where the legislatu re prescribes a formula of this
kind its words can not be su bstituted by ‘updating’
interpretation. If the Court, and not the legislature, is to make a
50 John L Austin, How to Do Things with Words, ed. J. O. Urmson and Marina Sbisá (Harvard
University Press, 1962) pages 5-5, accessed at
http://www.stanford.edu/class/ihum54/Austin_on_speech_acts.htm:
‘Utterances can be found… such that:
A. They do not ‘describe’ or ‘report’ or constate anything at all, are not ‘true or false,’ and
B. The uttering of the sentence is, or is a part of, the doing of an action, which again would
not normally be described as, or as ‘just,’ saying something.’
Austin’s classic example is the marriage formula. He also instances ‘I hereby name this ship
…’ and ‘I give you sixpence’. ‘In these examples it seems clear that to utter the sentence (in,
of course, the appropriate circumstances) is not to describe my doing of what I should be said
in so uttering to be doing or to state that I am doing it: it is to do it.’
26
constitutionally necessary change to such a formula, that must
be done not by inte rpretation but by the constitutional remedy
of ‘reading in’. That remedy is appropriate because it changes
in a permissible manner the nature of the action the statute
requires, without purporting merely to interpret its words.
[34] The appellants’ legal advisors appa rently overlooked the
question of the marriage formula entirely. As Moseneke J
pointed out in refusing leav e to appeal directly to the
Constitutional Court, their papers do not seek ‘a declaration
that any of the provisi ons of the legislation dealing with the
solemnising or recording of ma rriages is inconsistent with the
Constitution’.51
[35] This does not however in my view constitute an obstacle to
granting the appellants some porti on of the relief they seek, as
Roux J considered. As Farlam JA points out (para 91), the Act
permits the Minister to approve variant marriage formulae for
ministers of religion an d others holding a ‘responsible position’
within religious denominations. There are many religious
societies that currently approv e gay and lesbian marriage,
including places of worship s pecifically dedi cated to gay and
lesbian congregations. Even without amendment to the
51 Fourie v Minister of Home Affairs 2003 (5) SA 301 (CC) para 11.
27
statute, the Minister is now at liberty to approve religious
formulae that encompass same-sex marriages.
[36] It is important to emphasise that neither our decision, nor the
ministerial grant of su ch a formula, in an y way impinges on
religious freedom. The extens ion of the common law definition
of marriage does not compel an y religious denomination or
minister of religion to approve or perform sa me-sex marriages.
The Marriage Act specifically provides that:
‘Nothing in this Act contained shall be construed so as to compel a
marriage officer who is a minister of religion or a person holding a
responsible position in a religious denomination or organisation to
solemnize a marriage which would not conform to the rites, formularies,
tenets, doctrines or discipline of his religious denomination or
organisation’ (s 31).
[37] When the Minister approves appropriate religious formulae
(though subject to the poss ibility of further appeal
proceedings), the dev elopment of the common law in this
appeal will take practical effect . Religious orders for whose
use such formulae are approved will at their option be able to
perform gay and lesbian marr iages. But gay and lesbian
couples seeking to have a purel y secular marriage will have to
await the outcome of proceedi ngs which, we were informed
from the Bar, were launched in the Johannesburg High Court in
July 2004, designed to secure comprehensive relief by
28
challenging the provisions of the Marriage Act and other
statutes.
Should our order be suspended?
[38] Having concluded that the common la w should be
developed, Farlam JA proposes to suspend the order for two
years. I cannot agree. The suggested suspension is in my
respectful view neither appr opriate nor in keeping with
principle, the justice of this case, or the ro le the Constitution
assigns to courts in developing the common law. It is in my
view also not logical to hold that developing the common law
does not stray into the legislative domain, as Farlam JA rightly
holds, but then to suspend the order as though it did.
[39] First the Constitut ion. As suggested ea rlier, development of
the common law entails a simultaneously creative and
declaratory function in which the court perfects a process of
incremental legal development that the Constitution has
already ordained. Once the co urt concludes that the Bill of
Rights requires that the common law be developed, it is not
engaging in a legislative process. Nor in fulfilli ng that function
does the court intrude on the legislative domain.
29
[40] It is precisely this role that the Bill of Rights envisages must
be fulfilled, and which it entrusts to the judiciar y. As set out
earlier (para 3 above), s 8(3) of pr ovides that in order to give
effect to a right in the Bill of Rights a court must – subject to
limitation – ‘apply, or if necessary develop, the common law to
the extent that legislation d oes not give effect to that right ’.
Section 8(3) envisages just the situation this appeal presents –
that legislation to give effect to a fundamental right is absent.
In this circumstance, the Consti tution deliberately assigns an
imperative role to the court. Subject to limitation, it is obliged to
develop the common law appropriately. And this role is
particularly suited to the judiciary, since the common law and
the need for its incr emental development are matters with
which lawyers and judges are concerned daily.
[41] In this case the equality and dignity provisions of the Bill of
Rights require us to develop the common law. This is because
legislation ‘does not give effec t’ to the rights of same-sex
couples discussed above. In su ch a situation the incremental
development that the Bi ll of Rights envisa ges is entrusted to
the courts. It will be rarely, if ever, that an order pursuant to
such incremental development c an or should be subjected to
suspension.
30
[42] This approach is borne out by the Co nstitutional Court’s
approach in J v Director General, Department of Home
Affairs.52 There the Court declared a statutory provision to be
inconsistent with the Co nstitution and afforded a remedy that
‘read in’ appropriate expansionary words. The Home Affairs
department – also a respondent in this appeal – asked the
Court to suspend the declaration of invalidity, as it asks us to
suspend the order developing the common law here. The
basis on which it sought suspension ther e was identical to that
it advances here, namely the prospe ct of legislation following a
pending South African Law Reform Commission investigation.53
[43] In that case the Constitutional Co urt refused to suspend. It
held that ‘Where the appropriate remedy is reading in words in
order to cure the constitutional invalidity of a statutory
provision, it is difficult to thin k of an occasion when it would be
appropriate to suspend such an order’:
‘This is so because the effect of reading in is to cure a constitutional
deficiency in the impugned legislation. If reading in words does not cure
the unconstitutionality, it will ordinarily not be an appropriate remedy.
Where the unconstitutionality is cured, there would usually be no reason
to deprive the applicants or any other persons of the benefit of such an
order by suspending it.’54
52 2003 (5) SA 621 (CC) paras 21 and 22.
53 South African Law Reform Commission Discussion Paper 104, Project 118.
54 2003 (5) SA 621 (CC) para 22.
31
The reasoning in J seems to me to apply with even greater
force where the court’s order does not touch on legislation at
all, but develops the common law. Legislation is the province
of Parliament. If granting the reme dy of ‘reading in’ does not
intrude on the legislative domain, then dev elopment of the
common law in accordance with the Constitution – the
particular responsibility of the judiciary – does so even less.
[44] The reference in the judgment of Farla m JA to the recent
decision of the Consti tutional Court in Zondi v Member of the
Executive Council for Traditional and Local Government Affairs
(15 October 2004) do es not, with respec t, take the matter any
further. Zondi re-emphasises three clear strands of the
remedial jurisprudence of the C onstitutional Court. The first is
that the court ‘should be slow to make those choices which are
primarily choices suit able for the Legislature’.55 The second is
that, for this reason, the court frequently su spends an order of
statutory invalidity – as it did in Zondi – in order to give the
legislature the opportunit y to fulfil its partic ular function of
matching legislation with constitutional obligation.
[45] What my colleague’s allusion to Zondi leaves out of account
is that the case itself illustrates a third, equally vital, strand of
55 Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 64; Zondi para 123.
32
Constitutional Court remedial jurisprudence. This is the
‘important principle of consti tutional adj udication that
successful litigants shou ld be awarded relief’. 56 In Dawood,
that had the consequence that (a) the provisions of the statute
at issue were declared invalid; (b) the order of invalidity was
suspended to enable Par liament to do what was
constitutionally necessary; but (c ) an extensive order was also
granted, requiring Home Affairs offic ials in the interim to act in
accordance with the principl es of the judgment, pending the
legislative modifications. 57 In Zondi, too, an order of invalidity
was issued and suspended, but ex tensive remedial assistance
was granted.58
[46] In my respectful view the appe llants in this case are entitled
to no less. Our order developi ng the common law trenches on
no statutory provision. Deferen ce to the particular functions
and responsibilities of the legislature does not therefore require
that we suspend it. Instead, the appellant s are entitled to
appropriate relief. They should be awarded the benefit of a
declaration regarding the co mmon law of marriage that takes
effect immediately.
56 S v Bhulwana, S v Gwadiso 1996 (1) SA 388 (CC) para 32; Dawood v Minister of Home
Affairs 2000 (3) SA 936 (CC) para 66, Zondi paras 124-135.
57 See 2000 (3) SA 936 (CC) para 70.
58 See Zondi para 135.
33
[47] In conclusion I would add t hat the Constitutional Court called
in J for ‘comprehensive legislati on’ regularising same-sex
partnerships.59 That has not been fort hcoming. This may be
for many reasons, doubtless including the imperative
requirements of other legislat ive priorities. It is not
inconceivable, however, that the legislature may be content, or
even prefer, that this process of fulfilling the sexual orientation
guarantee in the Cons titution should proc eed incrementally by
leaving development of the common law to the courts. 60 If this
is not so, our unsuspended decision will not preclude later
constitutionally sound legislation.
61
[48] In all these circumstances I conclude that the appellants are
entitled to immediate decl aratory relief regarding the
development of the common law, and to a declaration that their
intended marriage is capable of recognition as lawfully valid
subject to compliance with statutory formalities.
ORDER
[49] The followi ng order is made:
59 2003 (5) SA 621 (CC) para 23.
60 Compare the analogous (though not identical) situation regarding the death penalty: S v
Makwanyane 1995 (3) SA 391 (CC) para 25, per Chaskalson P.
61 As Ngcobo J points out in Xolisile Zondi v Member of the Executive Council for Traditional
and Local Government Affairs (Constitutional Court, 15 October 2004): ‘… it must be borne in
mind that whatever remedy a court chooses, it is always open to the legislature, without
constitutional limits, to amend the remedy granted by the court’.
34
1. The appeal succeeds with costs.
2. The order of the court below is set aside. In its place is
substituted:
‘(1) It is declared that:
(a) In terms of sections 8( 3), 39(2) and 173 of the
Constitution, the common law co ncept of marriage is
developed to embrace same-sex partners as follows:
‘Marriage is the union of two persons to the exclusion
of all others for life.’
(b) The intended marriage be tween the appellants is
capable of lawful recognit ion as a legally valid
marriage, provided the formalities in the Marriage Act
25 of 1961 are complied with.
(2) The respondents are order ed to pay the applicants’
costs.’
E CAMERON
J U D G E O F A P P E A L
CONCUR
:
MTHIYANE JA
VAN HEERDEN JA
PONNAN AJA
35
FARLAM JA:
INTRODUCTION
[50] This is an appeal against a judgment of Ro ux J, sitting in the
Pretoria High Court, who dism issed with cost s an application
brought by the appella nts against the respondents , the Minister of
Home Affairs and the Di rector General: Home Affairs, for orders
(a) declaring that the marriage bet ween them be recognized as a
legally valid marriage in terms of the Marriage Act 25 of 1961,
provided that it complied with the formalities set out in the Act; and
(b) directing the respon dents to register their marriage in terms of
the provisions of the Marriage Act and the Identification Act 68 of
1997.
EVIDENCE FOR APPELLANTS
[51] The appellants are tw o adult females who have been living
together in a permanent same-sex relationship since June 1994.
The first appellant stated in her founding affidavit, which was
confirmed in a supporti ng affidavit by the se cond appellant, that
the purpose of the application wa s to obtain a declaratory order
that the intended marriage between the appellants be recognised
as legally valid. She stated fu rther that she and the second
appellant had approached a magistrate at one stage and asked
36
her if she would be prepared to solemnize a marriage between
them. The magistrate’s reply was that she wa s prepared to
perform such a marriage ceremony for them but that it would not
be legally valid and that she would not be able to reco rd it in the
marriage register. The first appel lant also stated that she and the
second appellant had lear nt that the Department of Home Affairs
would not be prepared to register their intended marriage in terms
of the provisions of the Marriage Act.
[52] According to the first appel lant, no bank was prepared to
allow her and the second appellant to open a joint bank account
and that they also could not ob tain a joint mo rtgage bond.
Moreover, it would be much easier for them to become members
of a medical aid fund, to adopt a child or to have a child placed in
their care as foster parents if they were married to each other.
[53] The first appellant stated that she had been advised that it
was what she called a ‘common law impediment’ that persons of
the same sex could not marry each other. She submitted,
however, that the common law had in the meanwhile so developed
that a marriage between herself and the second appellant could
now be recognised as legally valid.
[54] She had been advised further that, in terms of the
Constitution, she a nd the second appe llant could not be
37
discriminated against on the grou nd of their sexual preferences
and that their human dignity could not be infringed. She contended
that the failure by the law to recognise a marriage between her and
the second appellant discriminated against them and infringed
their dignity. In the concluding paragraph of this part of her affidavit
the first appellant stated that she had been advised that in terms of
the Constitution the common law had to be developed to promote
the spirit, purport a nd objects of the Bill of Rights. She submitted
that the common law (by which she clearly meant the common law
of marriage in terms of which it was not possible for two persons of
the same sex to marry one another) had now to be so developed.
RULE 16A NOTICE
[55] Before the respondents’ opposi ng affidavits were filed the
appellants caused a no tice to be given to the registrar of the
Pretoria High Court in terms of Rule 16A in which they indicated
that they would raise in their application a c onstitutional point,
which they formulated as follows:
‘Whether the common law has so developed that it can be amended so as to
recognise marriages of persons of the same sex as legally valid marriages in
terms of the Marriage Act, provided that such marriages comply with the
formality requisites set out in the Act.’
38
The purpose of the Rule is to enable part ies interested in a
constitutional issue to s eek to be admitted as amici curiae in the
case in which the issue is ra ised so that th ey can advance
submissions in regard thereto. As a result of th e appellants’ notice
to the registrar in terms of Rule 16A a voluntary association known
as The Lesbian and Ga y Equality Project was allowed to intervene
as amicus curiae in the case and submi ssions were made on its
behalf at the heari ng in the court a quo. Being of the opinion that
the conduct of the amicus went well beyond what was regarded as
proper in the Constituti onal Court decision In re certain amicus
curiae applications: Minister of Health and Others v The Treatment
Action Campaign and Others, 62 Roux J ordered the amicus to pay
the respondents’ costs jointly and severally with the appellants.
The respondents subsequently abandoned this part of the order of
the court a quo.
[56] After the matter had bee n set down for hear ing in this Court
the Lesbian and Gay Equality Pr oject once again sought to be
admitted as amicus curiae in the matter. Neither the appellants nor
the respondents oppo sed the application and it was granted. The
amicus submitted written arguments before the case was argued
62 2002 (5) SA 713 (CC).
39
and Mr Berger and Ms Kathree appeared at the hearing and made
oral submissions.
EVIDENCE FOR RESPONDENTS
[57] The respondents caus ed an affidavit to be filed on their
behalf in which they asked that the application be dismissed with
costs. In this affidavit it was averred that the magistrate who told
the appellants that a ‘marriage’ between them would not be legally
valid was correctly stating the la w as it stands. It was also
conceded that the Department of Home Affai rs is not prepared to
register the proposed ma rriage between the appe llants. (It is clear
that the Department’s attitude in this regard is based on its
contention regarding the validity of the intended marriage between
the appellants. There is no reason to think that this attitude will be
persisted in if the Department’s contention on this point is not
upheld.) The respon dents did not deny th e first appellant’s
statements regarding the practica l difficulties the appellants
experience in consequence of the fact that they are not married
but contented themselves with pu tting the appellants to the proof
thereof.
[58] The respondents ‘admitted’ that the comm on law prohibits
members of the same sex from entering into a valid marriage
relationship. They deni ed that the common la w has developed to
40
the extent that permanent same-sex life partnerships can be
recognised as marriages and submitted that the appellants had not
laid any factual basis for this contention. After admitting that under
the Constitution the appellants ma y not be discriminated against
on the basis of their sexual orientation and that their human dignity
may not be infringed and th at they are, as it was put, ‘living in
some sort of consortium with ea ch other’, the respondents denied
that the appellants are being discriminated against or that they are,
as it was put, ‘suffering indignity because thei r intended marriage
will not be recognised’. The resp ondents also contended that the
appellants had not provided any factual basis for the allegation that
they were being discriminated agains t. In this regard it was said
that it was ‘revealing’ that the appellants had ‘not as yet
approached the Department of Home Affairs for the registration of
their relationship’.
JUDGMENT OF COURT A QUO
[59] In his judgment dismissing th e application Ro ux J, after
pointing out that the a ppellants commenced living together in June
1994 and that their relationship appeared to be a ‘sincere and
abiding’ one, said that they claimed to be married. He emphasized
that no attempt had been made to amend the prayers and added:
41
‘This despite airing my view on how appropriate this relief could be in the light
of the facts and the Statute to which I will refer later.’
He held that the appellants were seeking a declaratory order. Such
an order, he said, is catered for by s 19 (1) (a) (iii) of the Supreme
Court Act 59 of 1959, which vests the court with a discretion, at the
instance of any inte rested person, ‘to enquire into and determine
any existing, future or cont ingent right or obligation,
notwithstanding that such per son cannot claim any relief
consequential upon the determination’.
[60] He continued:
‘The “right” in question must be the [appellants’] assumption that they are
married …. In Roman law marriage is the full legal union of man and woman
for the purpose of lifelong mutual companionship. I refer for example to Sohm
Institutes of Roman Law, 3rd edition at p 452. Nothing I am aware of has
changed since. Indeed the Marriage Act 25 of 1961 mirrors the age old
concept of what a marriage is. I refer to the peremptory provisions of section
30(1) of the Act:
“1. In solemnising any marriage any marriage officer designated under
section 3 may follow the marriage formula usually observed by his religious
denomination or organization if such marriage formula has been approved by
the Minister, but if such marriage formula has not been approved by the
Minister, or in the case of any other marriage officer, the marriage officer
concerned shall put the following questions to each of the parties separately,
each of whom shall reply thereto in the affirmative:
42
“Do you, A.B., declare that as far as you know there is no lawful
impediment to your proposed marriage with C.D. here present, and that
you call all here present to witness that you take C.D. as your lawful
wife (or husband)?”
This section …, as I have already pointed out, is peremptory. It contemplates
a marriage between a male and a female and no other.
Section 11(1) of the same Act provides as follows:
“11(1) A marriage may be solemnised by a marriage officer only.”
It must follow that the Applicants are not married as required by the law. I am
not prepared to exercise the discretion vested in me by section 19 of Act 59 of
1959 to enquire into a non-existing right.
Prayer 3 of the notice of motion [the prayer asking for an order directing the
respondents to register the marriage in terms of the Marriage Act and the
Identification Act] requires me to compel the Respondents to do what is
unlawful. Obviously I will not make such an order.
There is no attack on the provisions of Act 25 of 1961 on the basis that they
offend the Constitution. No more need therefore be said. This application is
obviously still-born.’
LEAVE TO APPEAL
[61] The applicants applied to the Pretoria High Court for leave to
appeal against this judgment. As Ro ux J had in the interim retired,
the application came befo re Mynhardt J, who refused to grant the
appellants a positive certifica te in terms of Rule 18 of the
43
Constitutional Court Ru les but did grant them leave to appeal to
this Court.
APPLICATION TO CONSTITUTIONAL COURT
[62] The appellants then approached the Constitutional Court for
leave to appeal directly to it aga inst the judgment and order of
Roux J. This application was refused on the ground that the
interests of justice re quired that the appeal be heard first by this
Court. The judgment of the C onstitutional Court, which was
delivered by Moseneke J, has been reported: see Fourie and
Another v Minister of Home Affairs and Another63.
RELEVANT STATUTORY PROVISIONS
[63] Before the issues arising for de cision in this case and the
contentions of the parties in regard thereto are considered it will be
appropriate to set out the relevant provisions of the Constitution as
well as ss 3, 29A, 30 and 31 of the Marriage Act (as far as they are
relevant) and ss 3, 5(1) and 8(e) of the Iden tification Act 68 of
1997.
(a) THE CONSTITUTION
[64] The following provisions of the Constitution are relevant in
this matter: s 7, s 8 (1), (2) and (3), s 9 (1), (2), (3) and (5), s 10, s
63 2003 (5) SA 301 (CC).
44
31(1)(a) and (2), s 36, s 38 (the general part of the section and
paragraph (a)), s 39(1) and (2) and s 172(1).
They provide as follows:
‘7. (1) This Bill is a cornerstone of democracy in South Africa. It
enshrines the rights of all people in our country and affirms the
democratic values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfill the rights in
the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations
contained or referred to in section 36, or elsewhere in the Bill.’
‘8. (1) The Bill of Rights applies to al l law, and binds the legislature, the
executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if,
and to the extent that, it is applicable, taking into account the nature of
the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (2), a court-
(a) in order to give effect to a right in the Bill, must apply, or if
necessary develop, the common law to the extent that
legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right,
provided that the limitation is in accordance with section 36(1).’
‘9. (1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
45
(2) Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture,
language and birth.
(5) Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination is fair.’
‘10. Everyone has inherent dignity and the right to have their dignity
respected and protected.’
‘31. (1) Persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other members of that community-
(a) to enjoy their culture, practise their religion and
use their language; and
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.
(2) National legislation must be enacted to give effect to this right, and
may provide for reasonable measures to alleviate the administrative and
financial burden on the state.’
‘36. (1) The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
46
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in the Bill of Rights.’
‘38. Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief, including a declaration
of rights. The persons who may approach a court are-
(a) anyone acting in their own interest;
…’
‘39. (1) When interpreting the Bill of Rights, a court, tribunal or forum-
(a) must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must promote
the spirit, purport and objects of the Bill of Rights.’
‘172. (1) When deciding a constitutional matter within its power, a court-
47
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration
of invalidity; and
(ii) an order suspending the declaration of invalidity for any
period and on any conditions, to allow the competent
authority to correct the defect.’
(b) THE MARRIAGE ACT
[65] As far as they are relevant ss 2, 3, 11(2 ) and 3, 29A, 30(2)
and (3) and 31 of the Marriage Act read as follows:
‘2. (1) Every magistrate, every special justice of the peace and every
Commissioner shall by virtue of his office and so long as he holds such office,
be a marriage officer for the district or other area in respect of which he holds
office.
(2) The Minister and any officer in the public service authorized thereto
by him may designate any officer or employee in the public service or the
diplomatic or consular service of the Republic to be, by virtue of his office and
so long as he holds such office, a marriage officer, either generally or for any
specified class of persons or country or area.’
‘3. (1) The Minister and any officer in the public service authorized thereto
by him may designate any minister of religion of, or any person holding a
responsible position in, any religious denomination or organization to be, so
long as he is such a minister or occupies such position, a marriage officer for
48
the purpose of solemnizing marriages according to Christian, Jewish or
Mohammedan rites or the rites of any Indian religion.’
‘11. (2) Any marriage officer who purports to solemnize a marriage which
he is not authorized under this Act to solemnize or which to his knowledge is
legally prohibited, and any person not being a marriage officer who purports to
solemnize a marriage, shall be guilty of an offence and liable on conviction to
a fine not exceeding four hundred rand or, in default of payment, to
imprisonment for a period not exceeding twelve months, or to both such fine
and such imprisonment.
(3) Nothing in subsection (2) contained shall apply to any marriage
ceremony solemnized in accordance with the rites or formularies of any
religion, if such ceremony does not purport to effect a valid marriage.’
‘29A. (1) The marriage officer solemnizing any marriage, the parties thereto
and two competent witnesses shall sign the marriage register concerned
immediately after such marriage has been solemnized.
(2) The marriage officer shall forthwith transmit the marriage register
and records concerned, as the case may be, to a regional or district
representative designated as such under section 21(1) of the Identification
Act, 1986 (Act 72 of 1986).’
‘30. (2) Subject to the provisions of subsection (1), a marriage officer, if he
is a minister of religion or a person holding a responsible position in a
religious denomination or organization, may in solemnizing a marriage follow
the rites usually observed by his religious denomination or organization.
(3) If the provisions of this section or any former law relating to the
questions to be put to each of the parties separately or to the declaration
49
whereby the marriage shall be declared to be solemnized or to the
requirement that the parties shall give each other the right hand, have not
been strictly complied with owing to-
(a) an error, omission or oversight committed in good faith by
the marriage officer; or
(b) an error, omission or oversight committed in good faith by
the parties or owing to the physical disability of one or
both of the parties,
but such marriage has in every other respect been solemnized in accordance
with the provisions of this Act or, as the case may be, a former law, that
marriage shall, provided there was no other lawful impediment thereto and
provided further that such marriage, if it was solemnized before the
commencement of the Marriage Amendment Act, 1970 (Act 51 of 1970), has
not been dissolved or declared invalid by a competent court and neither of the
parties to such marriage has after such marriage and during the life of the
other, already lawfully married another, be as valid and binding as it would
have been if the said provisions had been strictly complied with.’
‘31. Nothing in this Act contained shall be construed so as to compel a
marriage officer who is a minister of religion or a person holding a responsible
position in a religious denomination or organization to solemnize a marriage
which would not conform to the rites, formularies, tenets, doctrines or
discipline of his religious denomination or organization.’
(The text of ss 11(1) and 30(1), which are also relevant, were
quoted by Roux J in th e extracts from his ju dgment set out in para
[60].)
50
(c) THE IDENTIFICATION ACT
[66] Sections 3, 8(e) and 13 of the Identificati on Act 68 of 1997
read as follows:
‘3. This Act shall apply to all persons who are South African citizens and
persons who are lawfully and permanently resident in the Republic.’
‘8. There shall in respect of any person referred to in section 3, be
included in
the population register the following relevant particulars available to the
Director-General, namely-
…
(e) the particulars of his or her marriage contained in the
relevant marriage register or other documents relating to
the contracting of his or her marriage, and such other
particulars concerning his or her marital status as may be
furnished to the Director-General …’
‘13 (1) The Director-General shall as soon as practicable after the receipt
by him or her of an application, issue a birth, marriage or death certificate in
the prescribed form after the particulars of such birth, marriage or death were
included in the register in terms of section 8 of this Act.
(2) Any certificate issued in terms of subsection (1), shall in all courts of
law be prima facie evidence of the particulars set forth therein.’
ISSUES ARISING FOR DECISION
[67] In the course of the argument it became clear that the
following issues arise for decision in this case:
51
(1) Does the common law definiti on of marriage which precludes
two persons of the same sex from marrying one another
discriminate against the appellants?
(2) If so, is such di scrimination unfair?
(3) Does it infringe their human dignity?
(4) If there is unfair discriminati on, and/or an infr ingement of
human dignity, shou ld this court give the appellants the
remedy they seek, namely a development of the common
law definition of marriag e so as to allow same sex
marriages?
To answer that question it wi ll be necessary to consider:
(5) whether such deve lopment would constitute an incremental
change required to promote the sp irit, purport and objects of
the Bill of Rights or would it, on the other hand, require a
fundamental change to the common law, of such a nature
that it should rather be undertaken by Parliament?
(6) That in turn will necessita te consideration of the question:
what is the essence of the co ncept of marriage as it has
developed down the centuries and especially since 1994 in
this country?
If all these questions are answered in favour of the appellants it will
be necessary to ask:
52
(7) Can the appellants be grante d the relief they seek in the
absence of a prayer for declarati ons that the Marria ge Act and the
Identification Act are inconsistent with the Constitution? And
(8) Can and should any or der the Court may make be
suspended to enable Parliament to consider the matter?
HISTORY OF INSTITUTION OF MARRIAGE IN OUR LAW
[68] Before I proceed to consider these issues it is in my view
desirable to say som ething about the history of the institution of
marriage in our law.
[69] It is convenient for our purposes to begi n with the marriage
law of the Romans duri ng the period of the classical Roman law
(the first two and a half centuries of the Christian era).
As Professor Max Kaser says:
64
‘[T]he Roman marriage (matrimonium) was not a legal relationship at all, but a
social fact, the legal effects of which were merely a reflection of that fact ….
Marriage was a “realised union for life” … between man and woman,
supported by affectio maritalis, the spouses’ consciousness of their union
being marriage.’
The act which brought the marriage into ex istence was a purely
private one. No State official was involved. The ma rriage did not
have to be registered: indeed no public reco rd of any kind was
required. No reli gious or ecclesiastical rite was essential, even
64 Roman Private Law 3 ed (1980) translated by Professor Rolf Dannenbring, p 284.
53
after Christianity became the offi cial religion of the Roman Empire
in 313 AD. In fact no prescribed form was required. All that was
necessary was the reciprocally ex pressed consent of the parties,
even cohabitation was not required. Ulpian expressed the rule as
follows (D 35.1.15; D 50.17.30):
‘Nuptias non concubitus, sed consensus facit.’ (Consent not cohabitation
makes a marriage.)
[70] Even when marriage began to be controll ed by the Church
after the disintegratio n of the Roman Empire in the West, what
Bryce calls ‘the fundamental c onception of marriage as a tie
formed solely by consent, and need ing the intervention neither of
State nor of Church’65 remained the legal posit ion until the middle
of the sixteenth centur y. The Church’s control over marriage was
manifested in the fact that, fr om the tenth century, the Church’s
tribunals had exclusive jurisdiction in regard to questions relating
to marriage. As a result ther e was a uniform law of marriage
applied in Western Europe. Marria ge, which the Church regarded
as a sacrament, was indissoluble, except by decree of the Pope.
The Church encouraged the parties to declare their consent before
a priest and to receive a blessi ng; what was referred to as the
benedictio ecclesiae (the blessing of the church). In some areas
65 James Bryce, ‘Marriage and Divorce under Roman and English Law’ in Studies in History
and Jurisprudence Volume II 782 at 811.
54
the publication of banns before the church ceremony was insisted
on and this was made the general law of the Church by the Fourth
Lateran Council of 1215. Only marriage s which took place ‘in the
face of the Church’ were regarded as ‘regular’ marriages.
[71] But marriages resting on the consent of the parties alone, so-
called ‘irregular’ marriages, were nevertheless valid although the
parties thereto were subject to ecclesiastical and secular penalties.
Secret or clandestine marriages, wh ich often gave rise to great
scandal, were thus va lid. Eventually the need for reform became
irresistible and at its Twenty Fourth Session in 1563 the Council of
Trent passed a decree, the famous Decretum Tametsi, which, after
reciting that clandestine marri ages had been held valid, though
blameworthy, declared that for th e future all should be deemed
invalid unless banns we re published and the parties declared their
consent before a priest and at l east two witnesses. The decrees of
the Council of Trent did not become law in the Northern
Netherlands but the prin ciples of the Decretum Tametsi were
adopted in the various provinces thereof. Th e Political Ordinance
of 1 April 1580, whic h was enacted by the States of Holland,
provided in section 3 for ba nns to be publis hed, on three
successive Sundays or market-days, in church or in the council
chamber of the city or town where the intending spouses resided,
55
and for their marriage to be sole mnised by the magistrate or
minister of religion ‘according to the forms in use in the churches
or which shall have be en prescribed to the ma gistrates for that
purpose by the States’.66 ‘Marriages’ not solemnised in accordance
with section 3 were invalid. Sim ilar legislation was enacted in the
other provinces of the Northern Netherlands.67
[72] The provisions of the Political Ordinance on the point were
received as law at the Cape wh en it was colonise d by the Dutch
East India Company. 68 Despite the recepti on of the Political
Ordinance at the Cape it appea rs that from 1665, when the first
resident clergyman was appointed, marriages were solemnised by
a minister of the Church. Before that date they were solemnised by
the Secretary of the Council of Policy.69
[73] As far as I have been able to discover, Holland was the first
European jurisdiction to permit ci vil marriages. In pr actice persons
who chose to be married by magi strates were those who were not
66 Maasdorp’s translation Institutes of Cape Law Book 1 2 ed p 289.
67 For details see J Voorda Dictata ad Ius Hodiernum Ad D 23.2, transcribed, edited and
translated by Professor M Hewett, as yet unpublished. I am grateful to Professor Hewett for
making available to me the relevant extract from this work.
68 See Visagie, Regspleging en Reg aan die Kaap van 1652 tot 1806 p 38 and De Wet and
Swanepoel, Strafreg 4 ed (1985) p 42, fn 101.
69 HR Hahlo The South African Law of Husband and Wife 5 ed (1985) p 15.
56
of the Reformed religion 70 or, ‘who, being estranged from the
orthodox church, hated ecclesiastical benediction’.71
[74] Marriage law was secularised at the advent of the
Reformation as the Protestant r eformers did not regard marriage
as a sacrament. Brissaud refers to what he calls ‘this remarkable
evolution’ by which marriage was completely secularized. 72 The
point of departure for this, he sa ys, ‘was in a theo logical, legal
theory of which Sain t Thomas Aquinas was perhaps the first to
give the formula. According to that writer, marri age could be
regarded at one and the same tim e: 1st. As a contract of natural
law (a borrowing fr om the Roman writings , which understood by
this the law which is given to ma n and to animals). 2d. The civil
contract, that is to sa y, one governed by the Roman law as it was
organized, so long as the Church did not have the monopoly
concerning questions relating to marriage. 3d. A sacrament, of
which the contract was the el ement and which could not exist
without the latter. The civil marriag e and the religious marriage are
separated in this analysis , whereas in former times they were not
distinguished. These speculati ons, which had no very great
bearing so long as they remained shut up within the Schools, were
70 See S van Leeuwen Censura Forensis 1.1.14.1.
71 Voorda loc cit.
72 Jean Brissand A History of French Private Law, translated by R Howell, p 90 et seq.
57
propagated during the si xteenth century by vi rtue of the favour
shown them by the Renaissance and the Reformation; they were
presented before the Council of Trent by more than twenty
prelates and theologians, and, a more serious thing, the jurists
took possession of them in orde r to make of them a weapon
against the Church. Fr om this they came to the conclusion that
marriage ought to be subj ected to the Chur ch in so far as it was a
sacrament, to the State in so far as it was a civil contract.’
This development culmi nated, as far as Franc e was concerned, in
the adoption in the constitution of 1791 of the principle that ‘the law
only considered marria ge as a civil contract; the Church was free
to set up the sacrament in establishing the forms and conditions
which might please it, the faithful were at li berty to respect its
doctrines, but the State had no powe r to bind itself to impose them
upon all citizens without affecting their liberty of conscience. The
decree of September 20, 179 2, organized the certificates of civil
status and marriage; the latter mu st thenceforth be executed
before a municipal official in order to be recognized by the State.’73
[75] The principle that marriages had to be solemnis ed by a civil
official was adopted in some of the provinces of the Northern
Netherlands after 1795 and became the legal position in the whole
73 Brissaud op cit pp 109 – 110.
58
of what was now called the Kingdom of Holland in 1809 when the
Code Napoleon, with ad aptations, was given the force of law by
King Louis Napoleon.
[76] During the period between the tw o British occupations of the
Cape, when the Cape wa s under the control of the Batavian
Republic, Commissioner General De Mist intr oduced the secular
marriage before landdrost and heem raden in the co untry districts
and before the Court for Matrimonial and Civil Affairs in Cape
Town. This change was, however, repealed at the beginning of the
Second British Occupation by a proclamation issued on 26 April
1806 by Sir Davi d Baird prohibiting civil marriages and providing
that all marriages were ‘to be performed … by an ordained
clergyman or minister of the Gospel, belonging to the settlement’.
74
[77] The law relating to the solemnisation of marriages in the
Cape was altered by Order in Council dated 7 September 1838.
This order made detailed provision for the publication of banns, the
issuing of special licences, the establis hment of a marriage
register and the appointm ent of civil marriage officers where there
was ‘not a sufficie nt number of … ministers [of the Christian
religion] to afford convenient fac ilities for marriage’. By the
74 Sir David Baird’s Proclamation is printed in Harding (ed) The Cape of Good Hope
Government Proclamations from 1806 to 1825 … and the Ordinances Passed in Council from
1825 to 1838 Vol 1 p 13. It gives references to De Mist’s shortlived legislation.
59
Marriage Act 16 of 1860 the resi dent magistrates were made
marriage officers and the Gove rnor was empowered to appoint
marriage officers for Jews and Muslims. Similar legislation was
passed in the other colonies whic h eventually made up the Union
of South Africa.
[78] The Marriage Act 25 of 1961 consolidated the laws
governing the formalities of ma rriage and the appointment of
marriage officers and repealed some 47 Union and pre-Union
statutes from the Marriage Orde r in Council of 7 September 1838
onwards. It is clear from a study of the prov isions of the Marriage
Act that it builds on the foundations laid by the Council of Trent in
1563 and by the S tates of Holland in 1580. It is so lely concerned
with marriage as a secular institution. Al though it does not go as
far as the French di d in 1791 and 1792 a nd the Dutch legislature
thereafter in requiring all marri ages to be solemnized by a civil
official and not allowing cleri cs to solemnize them, it clearly
constitutes clerics who are marriage officers State officials for the
purpose of bringing into being a ma rriage relationship between the
intending spouses which is recognised by the State.
[79] Indeed it is instructive to n ote that this way of seeing the
matter is set forth by Henricus Brouwer (1625 – 1683), a leading
Roman Dutch writer, in his work De Jure Connubiorium, which was
60
first published in 1665. In book 2, chapter 27, paragraph 20 we find
the following:
‘It is possible for someone indeed to call one marriage a political marriage and
the other a church marriage inasmuch as one is contracted in the face of the
church and the other before a court. But if this distinction were to be approved
it proceeds from the incidentals of the marriage and is of no force if one has
regard to the bond of the marriage itself, honourableness, the legitimate
status of the children who are born therefrom and all the rights which the
spouses obtain. Because the same legal position applies in both cases, the
same dignity, the same honourableness, the same bond. Indeed a marriage
contracted in church can be called a political marriage in so far as it is
solemnized in the church by the authority of a magistrate through a delegated
person, namely a minister of God.’
This analysis is clearly correct and as applicable today as it was in
1665 when it was first published.
[80] I have dealt in some detail wi th the history of the law of
marriage because it throws lig ht on a point of ca rdinal importance
in the present case, namely that the law is only concerned with
marriage as a secular institution. It is true that it is seen by many to
have a religious dimension also but that is something with which
the law is not concer ned. Even though cl erics are appointed
marriage officers, when they solemn ise marriages they do so in a
twofold capacity: first as clerics, giving the benedictio ecclesiae to
61
the couple and affording them the opportunity to take their vows at
a religious service; and secondly as State marriage officers,
bringing into existence a secula r legal bond reco gnised by the
State.
[81] But as s 31 of the Marriage Ac t makes clear, clerics who are
marriage officers are not obliged to marry couples if to do so would
be against the tenets of their re ligion. Thus, to take an obvious
example, a Roman Catholic priest who is a marriage officer is not
obliged to marry a couple one of whom is divorced and whose
former spouse is still alive. The Marriage Act contains a provision
(s 28) which renders it lawful for a person to marry certain relatives
of his of her deceased or divo rced spouse. This provision repeals
the common law rules which dealt with prohibited degrees of
relationship in so far as collaterals by affinity are concerned. These
rules were based on the canon law and, to the extent that they are
still upheld by certain denominati ons, clerics be longing to such
denominations would be unwilling to solemnise marriages between
such persons. Section 31 makes it clear that they are free to
refuse to do so. These examples also help to make clear the
distinction between the secular inst itution of marriage which the
law regulates and the religious institutio n of marriage which is
recognised in the Act.
62
[82] As I have said, we are concerned in this case only with the
secular institution. Nothing that we say is inte nded to deal with the
religious institution. Indeed it wo uld be inappropriate and improper
for judges in a secular state to do otherwise.
DOES THE COMMON LAW DE FINITION DISCRIMINATE
AGAINST HOMOSEXUAL PERSONS?
[83]Against that background I turn to the question whether the
common law definition of marriage discriminate s unfairly against
homosexual persons.
What may be called the common la w definition of marriage was
stated as follows by Innes CJ in Mashia Ebrahim v Mahomed
Essop:
75
‘With us marriage is a union of one man with one woman, to the exclusion,
while it lasts, of all others’.
He approved this statement in Seedat’s Executors v The Master
(Natal).76
[84] As to what is meant by ‘a union’ in th at definition it is
necessary to have regard to the definition of ma rriage attributed to
the Roman jurist Modestin us, who flourished in the first half of the
751905 TS 59 at 61.
76 1917 AD 302 at 309. See further the authorities collected in Sinclair The Law of Marriage
Vol 1 p 305, fn 1.
63
third century, and the definit ion given in Justinian’s Institutes.
Modestinus’s definition reads as follows (D 23.2.1):
‘nuptiae sunt coniunctio maris et feminae et consortium omnis vitae divini et
humani iuris communicatio’ (marriage is a joining of man and woman, a
partnership in the whole of life, a sharing of rights both sacred and secular’.77
Justinian’s definition reads as follows (Inst. 1.9.1):
‘Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam
vitae consuetudinem continens’ (‘wedlock or marriage is a union of male and
female involving an undivided habit of life’).78
These definitions have been quoted over and over again down the
centuries. Indeed O’Regan J, in Dawood, Shalabi and Thomas v
Minister of Home Affairs79 used the expression consortium omnis
vitae in referring to the ‘physical, moral and spiritual community of
life’ created by marriage.
A useful expanded par aphrase of the concept was given by the
great Scots jurist Viscount Stair in his Institutions, published in
1681. He said that the consent to marriage is :80
‘the consent whereby ariset h that conjugal society, which may have the
conjunction of bodies as well as of mind s, as the general end of the institution
77Translation based on that given by Bryce op cit p 798.
78 RW Lee’s translation The Elements of Roman Law 4 ed (1956) p 80.
79 2000 (3) SA 936 (CC) in fn 44 to para 33. See also per Ackermann J in National Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others, 2000 (2) SA
1 (CC) at para 46.
80 Book 1, tit 4, para 6.
64
of marriage is the solace and satisfaction of man [by which I take it he meant
humankind].’
[85] Mr Oosthuizen, who appeared for the appellants, submitted
that our law and societal practice grants many rights and privileges
to married persons because they ar e married. Mr Sithole, for the
respondents, did not dispute this. It is clear therefore that our law,
in terms of the common law defini tion to which I have referred,
permits heterosexual persons to enter a conjugal society as
described by Viscount Stair, by Modestinus and Justinian, it
recognises and protects that relationship in many ways, and grants
the parties thereto many legally enforceable rights and privileges.
[86] It will be recalled that s 9(1) of the Constitution provides that
everyone has the right to equal protection a nd benefit of the law,
while s 9(3) lists among the pros cribed grounds of discrimination
sexual orientation. Homosexual persons are not permitted in terms
of the common law defi nition to marry each ot her, however strong
their yearning to establish a conjugal society of the kind described.
As a result they are debarred fr om enjoying the protection and
benefit of the law on the ground of their sexu al orientation. This
clearly constitutes di scrimination within the meaning of s 9 of the
Constitution.
65
[87] Mr Sithole contended that this conclusi on is not correct. He
argued that the common law defin ition does n ot discriminate
against homosexuals because it does not prevent them from
marrying. Reliance was placed on a dictum by Southey J, with
whom Sirois J concurred, in Re Layland and Minister of Consumer
and Commercial Relation s; Attorney-General of Canada et al.,
Interveners.81
The dictum relied on reads as follows:
‘The law does not prohibit marriage by homosexuals, provided it takes place
between persons of the opposite sex. Some homosexuals do marry. The fact
that many homosexuals do not choose to marry, because they do not want
unions with persons of the opposite sex, is the result of their own preferences,
not a requirement of the law.’
[88] This approach to the matter was expr essly rejected by
Ackermann J in the Home Affairs case82 at para 38 where he said:
‘The respondents’ submission that gays and lesbians are free to marry in the
sense that nothing prohibits them from marrying persons of the opposite sex,
is true only as a meaningless abstraction. This submission ignores the
constitutional injunction that gays and lesbians cannot be discriminated
against on the grounds of their own sexual orientation and the constitutional
right to express their orientation in a relationship of their own choosing. ’ (The
italics are mine.)
81(1993) 104 DLR (4th) 214 (Ont. Div. Ct) at 223.
82 Home Affairs case, supra at para 38.
66
IS SUCH DISCRIMINATION FAIR?
[89] Section 9(5) provides that discrimination on a ground listed in
s 9(3) is unfair unless it is established that the discrimination is fair.
No attempt was made by the respondents to es tablish the fairness
of the discriminati on. Instead they cont ended that there was
differentiation in this ca se but not discrimination, a submission
which for the reasons given above I cannot accept.
[90] In my opinion there can be no doubt that the discrimination
flowing from the ap plication of the common law definition of
marriage is unfair. In the Home Affairs case the Constitutional
Court considered the provisions of s 25(5) of the Aliens Control Act
96 of 1991, which empowered a regional committee of the
immigrants selection board to disp ense with certain pre-conditions
in authorising the issue of an immigration permi t to the foreign
spouse of a person permanently an d legally resi dent in South
Africa upon the application of su ch spouse, and held that the
omission from the subs ection after the word ‘spouse’ of the words
‘or partner in a permanent same-sex relationship’ was inconsistent
with the Constitu tion. It held further that the subsection should be
read as though the wo rds omitted appeared ther ein after the word
‘spouse’.
67
[91] In reaching that conclusion the C onstitutional Court held that
the total exclusion of homosexual persons from th e provisions of
the subsection constituted unfai r discrimination. It also held that,
for substantially the same reasons as thos e set out in its judgment
in relation to unfai r discrimination, s 25 (5) ‘simultaneously
constitutes a severe limitation on the s 10 right to dignity enjoyed
by … gays and lesbians’ who ar e permanently re sident in the
Republic and who are in permanent same-s ex life partnerships
with foreign nationals.
[492] The reasoning leading up to th at conclusion is conveniently
set out in paras 53 to 57 of the judgment in the Home Affairs case,
which read as follows:
‘[53] The message that the total exclusion of gays and lesbians from the
provisions of the subsection conveys to gays and lesbians and the
consequent impact on them can, in my view, be conveniently expressed by
comparing (a) the facts concerning gays and lesbians and their same-sex
partnerships which must be accepted, with (b) what the subsection in effect
states:
(a) (i) Gays and lesbians have a constitutionally entrenched
right to dignity and equality;
(ii) sexual orientation is a ground expressly listed in s 9(3) of
the Constitution and under s 9(5) discrimination on it is
unfair unless the contrary is established;
68
(iii) prior criminal proscription of private and consensual
sexual expression between gays, arising from their
sexual orientation and which had been directed at gay
men, has been struck down as unconstitutional;
(iv) gays and lesbians in same-sex life partnerships are as
capable as heterosexual spouses of expressing and
sharing love in its manifold forms, including affection,
friendship, eros and charity;
(v) they are likewise as capable of forming intimate,
permanent, committed, monogamous, loyal and enduring
relationships; of furnishing emotional and spiritual
support; and of providing physical care, financial support
and assistance in running the common household;
(vi) they are individually able to adopt children and in the
case of lesbians to bear them;
(vii) in short, they have the same ability to establish a
consortium omnis vitae;
(viii) finally, and of particular importance for purposes of this
case, they are capable of constituting a family, whether
nuclear or extended, and of establishing, enjoying and
benefiting from family life which is not distinguishable in
any significant respect from that of heterosexual spouses.
(b) The subsection, in this context, in effect states that all gay and
lesbian permanent residents of the Republic who are in same-sex
relationships with foreign nationals are not entitled to the benefit
69
extended by the subsection to spouses married to foreign nationals in
order to protect their family and family life. This is so stated,
notwithstanding that the family and family life which gays and lesbians
are capable of establishing with their foreign national same-sex
partners are in all significant respects indistinguishable from those of
spouses and in human terms as important to gay and lesbian same-
sex partners as they are to spouses.
[54] The message and impact are clear. Section 10 of the Constitution
recognises and guarantees that everyone has inherent dignity and the right to
have their dignity respected and protected. The message is that gays and
lesbians lack the inherent humanity to have their families and family lives in
such same-sex relationships respected or protected. It serves in addition to
perpetuate and reinforce existing prejudices and stereotypes. The impact
constitutes a crass, blunt, cruel and serious invasion of their dignity. The
discrimination, based on sexual orientation, is severe because no concern, let
alone anything approaching equal concern, is shown for the particular sexual
orientation of gays and lesbians.
[55] We were pressed with an argument, on behalf of the Minister, that it was
of considerable public importance to protect the traditional and conventional
institution of marriage and that the government accordingly has a strong and
legitimate interest to protect the family life of such marriages and was entitled
to do so by means of s 25(5). Even if this proposition were to be accepted it
would be subject to two major reservations. In the first place, protecting the
traditional institution of marriage as recognised by law may not be done in a
70
way which unjustifiably limits the constitutional rights of partners in a
permanent same-sex life partnership.
[56] In the second place there is no rational connection between the exclusion
of same-sex life partners from the benefits under s 25(5) and the government
interest sought to be achieved thereby, namely the protection of families and
the family life of heterosexual spouses. No conceivable way was suggested,
nor can I think of any, whereby the appropriate extension of the s 25(5)
benefits to same-sex life partners could negatively effect such protection. A
similar argument has been roundly rejected by the Canadian Supreme Court,
which Court has also stressed, correctly in my view, that concern for the
protection of same-sex partnerships in no way implies a disparagement of the
traditional institution of marriage.
[57] There is nothing in the scales to counteract such conclusion. I accordingly
hold that s 25(5) constitutes unfair discrimination and a serious limitation of
the s 9(3) equality right of gays and lesbians who are permanent residents in
the Republic and who are in permanent same-sex life partnerships with
foreign nationals. I also hold, for the reasons appearing throughout this
judgment and culminating in the conclusion reached at the beginning of this
paragraph, that s 25(5) simultaneously constitutes a severe limitation of the s
10 right to dignity enjoyed by such gays and lesbians.’ (Footnotes omitted.)
[93] That reasoning clea rly applies here. The effect of the
common law prohibition of same-sex marriages is clearly unfair
because it prevents parties to sa me-sex permanent relationships,
who are as capable as heterosex ual spouses of establishing a
consortium omnis vitae, of constituting a family and of establishing,
71
enjoying and benefiting from family life, from entering into a legally
protected relationship from which substantial benefits conferred
and recognized by the law flow.
IS THE RIGHT TO HUMAN DIGNITY INFRINGED?
[94] It is clear from the reasons gi ven in the passage cited from
the House Affairs case that the common law definition of marriage
not only gives rise to an infringem ent of the appellants’
constitutional right no t to be the victims of unfair discrimination in
terms of s 9 of the Co nstitution but also to their right to human
dignity in terms of s 10.
JUSTIFIABLE LIMITATION UNDER S 36
[95] It is not suggeste d by the respondents tha t the common law
definition of marriage in so far as it prevents homosexual persons
from entering into sa me sex marriages constitutes a justifiable
limitation on the appe llants’ rights under ss 9 and 10 of the
Constitution. In my vi ew, there would be no merit in any such
suggestion.
REMEDY
[9] It is now necessary to consider what remedy, if any, should
be given to the appellants. Th e respondents contended that the
court a quo correctly dismissed the ap plication for the reasons
given in the judgment which I have summarized in paras [59] and
72
[60] above. They laid great stress on the point, which had found
favour with the court a quo, that, as the a ppellants had not
attacked the validity of those provisions of the Marriage Act which
appeared to place a legislativ e imprimatur on the common law
definition, the application could not succeed.
[97] The respondents did not sugges t that the appellants should
in addition have soug ht a declaration that the Identification Act 68
of 1997 is inconsistent with the Constitution (as Moseneke J
suggested may be the position 83). The attitude adopted by the
respondents in this regard was, in my view, entirely correct
because the provision in the Identi fication Act which deals with the
registration of marria ges (s 8(e)) does not depend in any way on
an acceptance of the common law definition.
[98] Later in this judgment I shall state my reasons for being of
the opinion that the statutory marri age formula set for th in s 30(1)
of the Marriage Act does not c onstitute a basis for denying the
appellants relief in this matter. This renders it unnecessary for me
to decide whether the absence of a challenge to the constitutional
validity of s 30(1) precludes the appellants from receiving any relief
at all in their application.
83 Constitutional Court judgment in this matter, supra, at para 9.
73
[99] It will be recalled that the court a quo approached the
application on the basis that the appellants claimed to be married.
After referring to their ‘assumption’ that they were married, Roux J
held that they were not married as required by the law. It is clear
that the learned judge was misled by the no tice of motion, which
spoke of the marriage of the parties. It is clear however, from the
founding affidavit, which I ha ve summarised above, that the
appellants’ true case is that they intend to enter into a marriage
with each other and they seek a declaration that such marriage,
when entered into in accordance with the formalities in the
Marriage Act, will be valid and r egistrable under the Marriage Act
and the Identification Act. The re spondents’ contention that the
prayers in the notice of moti on indicate that the appellants
regarded themselves as marrie d and considered that all they
needed from the cour t was a declaration to legalise their marriage
is accordingly not correct.
[100] In constitutional litigation, where infringements of rights
entrenched in the Bill of Rights ar e at issue, it is in any event
inappropriate to adopt an overly technical at titude to the relief
sought by an applicant. Holding, as I do, that the application of the
common law definition of marriage subjec ts the appellants to
infringements of their rights under ss 9 and 10 of the Constitution, I
74
must conclude that this is an instance where the common law
deviates from the spirit, purpor t and objects of the Bill of Rights
and it should accordingly be deve loped, if this is possible and
appropriate, so as to remove the deviation.
[101] As the Constituti onal Court held in Carmichele v Minister of
Safety and Security, 84 where the common la w is deficient as
regards the spirit, purpo rt and objects of the B ill of Rights in terms
of s 39(2) of the Co nstitution, the Courts are under a general
obligation to develop the co mmon law appropriately. The
Constitutional Court pointed out85 that ‘in exercising their powers to
develop the common law, Judges should be mindful of the fact that
the major engine for law reform s hould be the Legi slature and not
the Judiciary’. It proceeded to cite with approval a dictum by
Iacobucci J in a decision of the Canadian Supreme Court, R v
Salituro,86 which contained the following:
‘In a constitutional democracy such as ours it is the Legislature and not the
courts which has the major responsibility for law reform …. The Judiciary
should confine itself to those incremental changes which are necessary to
keep the common law in step with the dynamic and evolving fabric of our
society.’
84 2001 (4) SA 938 (CC) at 39.
85 At para 36.
86 (1991) 3 SCR 654; (1992) 8 CRR (2d) 173 (SCC).
75
[102] In Du Plessis v Road Accident Fund 87 that this Court
extended the action for loss of supp ort to partners in a same-sex
permanent life relationship similar in other respects to marriage,
who had a contractual duty to su pport one another. Cloete JA
said88 that this extension would be ‘ an incremental s tep to ensure
that the common law accords with th e dynamic and evolving fabric
of our society as refl ected in the Constituti on, recent legislation
and judicial pronouncements.’
WOULD THE EXTENSION OF THE COMMON LAW DEFINITION
OF MARRIAGE TO ALLOW PER SONS OF THE SAME SEX TO
MARRY CONSTITUTE AN INCREM ENTAL STEP OR IS THE
PROBLEM ONE MORE APPROPRI ATELY TO BE SOLVED BY
THE LEGISLATURE?
[103] Counsel for the respondents contended that the step which
the appellants ask the Court to take is not merely an incremental
one but one which would requir e a fundamental rewriting of
important aspects of what can be described as the essence of
marriage. He incorporated in his argument po rtion of the
submissions advanced by Counse l for the Attorney General of
87 2004 (1) SA 359 (SCA).
88 At para 37.
76
Canada in a matter heard in No vember 2001 in the Ontario
Superior Court of Justice, Divisional Court,89 in which the divisional
court declared the common law defi nition of marr iage recognised
in Canada (which is the same as ou rs) to be constitutionally invalid
and inoperative but suspended the effect of the declaration for 24
months to permit the Canadian Pa rliament to act. (On appeal to
the Ontario Court of Ap peal, the Court, in a judgment delivered on
10 June 2003, upheld th e declaration of invalidity but set aside the
suspension and ordered the decla ration to have immediate
effect.90)
[104] The submission incorporate d into counsel for the
respondents’ argument before this Court reads as follows:
‘This case is about our humanity … There are different aspects, but at its core
is our femaleness and maleness. The issue before this court is a legal one. It
is whether government action, embodied in common law, and statutes, meets
the charter rights that the applicants possess. … It is a unique institution, and
the court has to decide whether to change marriage forever. … The purpose
of marriage has nothing to do with excluding the applicants. That is an effect,
but the purpose of marriage, outside the law, at its roots, was to define an
institution that would bring together the two core aspects of our humanity; our
maleness and our femaleness, because at its essence this is the basis for
89 Halpern et al v Attorney General of Canada et al 215 DLR (4th) 223
90 See (2003) 225 DLR (4th) 529
77
humanity. If you take that purpose away, we have something else; the
institution has changed.’
[105] Counsel for the respondents co ntended further that the
essence of marriage in our law is a combination of factors: the
characteristics going together to make up marriage, so he
contended, were procreation, the consortium omnis vitae and what
counsel for the Attorney G eneral of Canada in the Halpern case in
the divisional court called ‘the complementarity of the two human
sexes’, ‘our femaleness and our maleness’.
[106] Counsel pointed out further that , with the exception of two
states of the United States of America (Massachusetts 91 and
Washington 92 ), three provinces and a territory in Canada
(Ontario,93 Quebec,94 British Columbia95 and the Yukon 96) and the
Netherlands and Belgium, no jurisd iction of which he was
aware has extended the definition of marriage to cover same-sex
unions, although some countries recognise what may be called a
91 See the decision of the Supreme Court of Massachusetts, Goodridge and Others v
Department of Public Health and Another 440 Mass 309; 798 NE 2nd 941 (2003), in which it
was held, by a majority of three judges to two, that barring an individual from the protections,
benefits and obligations of civil marriage solely because that person would marry a person of
the same sex violates the Massachussetts Constitution. Entry of judgment was stayed for 180
days to permit the Legislature to take such action as it might deem appropriate in the light of
the Court’s opinion.
92 Anderson and Another v King County and Others Superior Court of the State of
Washington for King County, Memorandum Opinion No 04 – 2 – 4964 4 SEA, 4 August 2004
and Celia Castle et al v State of Washington, Superior Court of Washington, Thurston County,
Memorandum Opinion on Constitutionality of RCW 26.02.010 and RCW 26.02.020, 7
September 2004.
93 The Halpern case, supra.
94 Hendricks v Quebec Procureur Général [2002] RJQ 2506 (Superior Court of Quebec).
95 Barbeau v British Columbia (Attorney-General) (2003) 225 DLR (4th) 472 (BCCA).
96 Dunbar & Edge v Yukon (Government of) & Canada (A.G.) 2004 YKSC 54, 14 July 2004.
78
parallel legal institution, which gives a separate st atus, although
the parties thereto enjoy virtually all the rig hts available to married
couples. He contended that we would be out of kilter with the rest
of the world if we were to recognise same-sex marriages.
[107] He submitted that an extensi on of the common law definition
to apply to same-sex unions would not be an incremental step but
what he called ‘a quantum leap ac ross a chasm’, the
consequences of which would be ‘a crisis of the reality of the law’.
By this he meant, he sa id, a situation where what the population is
practising is the opposite of what is in the law books. He referred in
this regard to a lecture given in 1998 by the Hon David K Malcolm,
the Chief Justice of We stern Australia, addressing the issue of the
independence of the judiciary97.
[108] At one point in his lecture Chief Justice Malcolm said:
‘In reality, a strong, independent judiciary forms the foundation of
representative democracy and observance of the Rule of Law and human
rights. [However] it is primarily the co nfidence of the community in the legal
system which encourages observance of the law … [The practice of judicial
independence] also relies on a community perception that in resolving
disputes between parties, the judiciary reflects and acts upon the basic and
enduring values to which the community subscribes ….’
97 Quoted in Advocate, Vol 17, No2, August 2004, p41.
79
‘If one accepts that the courts work through the voluntary acceptance of their
authority by the community, the relationship between the courts and public
must be reciprocal. This does not mean that the courts will decide cases by
reference to every shift in public opinion. The courts and the judiciary must
have the confidence of the community in order to maintain their authority.
Apart from acting in accordance with their ethical obligations, the judiciary
must also keep a “weather eye” on community values in order to retain the
relevance of their decisions to that community.’
[109] Counsel for the respondent submi tted that, if this Court were
to be of the opinion th at the definition of marriage should be
extended to cover same-sex unions, it should suspend whatever
relief it was minded to grant to the appellants for 24 months so as
to give the legislature time to consider the matter and pass such
legislation as it considered necessary to deal with the problem.
[110] Counsel for the appellants attached to his heads of argument
Discussion Paper 104 publ ished by the South African Law Reform
Commission in connection with its Project 118, which is devoted to
the topic of Domestic Partnerships. Discussion Paper 104 contains
proposals prepared by the Commission aimed at harmonizing
family law with the provisions of the Bill of Rights and the
constitutional values of equality and dignity. The Commission
considers ‘as unconstitutional th e fact that there is currently no
legal recognition of same-sex relationships’. It proposes that same-
80
sex relationships should be a cknowledged by the law and
identifies three alternative ways of effecting legal recognition to
such relationships, viz (a) ‘opening up the comm on-law definition
of marriage to same-sex couples by inserting a definition to that
effect in the Marriage Act’; (b) separating the civil and religious
elements of marriage, by amending the Marriage Ac t to the extent
that it will only regulate the civi l aspect of marriage, namely the
requirements and consequences pr escribed by law, and by
providing in it for the civil marriage of both same- and opposite-sex
couples; and (c) providing what is called a ‘marriage-like
alternative’, according same-sex couples (and possibly also
opposite-sex couples) t he opportunity of concluding civil unions
with the same legal consequences as marriage.
[111] As appears from what I have said above, I share the
Commission’s view that the fact that there is no legal recognition of
same-sex relationship s is contrary to the Co nstitution. It is clear,
however, that this Court is n ot able, in the exercise of its
jurisdiction to develop the common la w so as to prom ote the spirit,
purport and objects of the Bill of Rights, to grant relief based on the
incorporation into our la w of either the second or the third options
mentioned by the Law Reform Commission. Only the first option is
81
available to us and then only if it can be regarded as an
incremental step.
[112] In Bellinger v Bellinger [2003] 2 AC 467 (HL(E)) the House of
Lords upheld a decisio n dismissing a peti tion under s 55 of the
Family Law Act 1986 for a declara tion that a marriage celebrated
between a person regi stered at birth as a male who later
underwent gender re-assignment surg ery and a male partner was
valid but it granted a declaration under s 4 of the Human Rights
Act 1998 that s 11(c) of the Matrimonial Causes Act 1973 (which
provides that a marriage is void unless the parties are ‘respectively
male and female’) is incompati ble with the appel lant’s right to
respect for her private life under art 8 of the Convention for the
Protection of Human Rights and Fundamental Freedoms 1950 and
her right to marry under art 12 of the Convention. One of the points
considered was whether the pr oblem confronting Mrs Bellinger
could not be resolved by recogni sing same-sex marriages. Lord
Nicholls of Birkenhead said (at para 48):
‘[i]t hardly needs saying that this approach would involve a fundamental
change in the traditional concept of marriage’.
Lord Hope of Craighead was of the same opinion. At para 69 of his
opinion he said:
82
‘… problems of great complexity would be involved if recognition were to be
given to same-sex marriages. They must be left to Parliament.’
[113] These statements do not apply wi th the same force in this
country. With us the c oncepts of marriage and the family have to
be seen against the background of the numerous strands making
up the variegated tapestry of life in South Africa. In addition the
influence of the Constitution and it s express recognition of the
importance of the democratic values of human dignity and equality
have played a major role in trans forming attitudes in this as in
many other areas of the law. The point is well put by Professor
Joan Church in her valuable and scholarly article ‘Same-sex
unions – Different Voices’.98 Professor Church says:99
‘In South Africa until recently, however, the traditional notion of marriage was
that it was a legally recognized voluntary union for life in common of one man
and one woman, to the exclusion of all others while it lasts. In terms of this
definition the constitutive elements of the marriage is that it is a legal
institution, the coming into being and termination of which is legally
determined, it is based on the consent of the parties to it, and it is only
possible between two persons of the opposite sex. In the present multicultural
South African society and in the light of the new constitutional dispensation,
this definition no longer holds good. In the first place, in the light of the
Constitution and the Recognition of Customary Marriages Act that came into
98 (2003) 9 Fundamina 44. In writing this judgment I have derived considerable assistance
from this article.
99 Op cit 45.
83
operation on 15 November 2000, polygamous or potentially polygamous
marriage is legally recognized. In the second place, and perhaps more
importantly, discrimination on the grounds of sexual orientation is contrary to
the Bill of Rights. As Edwin Cameron points out, the fact that sexual
orientation is specifically mentioned with regard to equality and protected
conditions, is a milestone not only in the South African context but in world
constitutional history. A greater sensitivity towards and acceptance of cultural
differences as well as the libertarian jurisprudence that has emerged in the
new constitutional dispensation has shaped, and doubtless will still shape,
changing policy. This will be discussed later. Although same-sex marriage has
as yet not been legally recognised, it is clear that in less than a decade there
have been major policy changes in South Africa regarding homosexuals and
homosexual conduct. It is suggested that despite some previously dissenting
voices, the cases of S v H [1995 (1) SA 120 (C)] and [ S v Kampher 1997 (4)
SA 460 (C)] that decriminalized sodomy, were at the vanguard of changing
attitudes.’ (Footnotes omitted.)
Later in the article, under the heading ‘Same-sex marriage and
cultural patterns’,100 she refers to various same-sex relationships in
non-western societies which serve cultural or eco nomic functions,
and gives two examples from indig enous African cul ture. The first
concerns the tr aditional woman-to-woman marriages which are
reported from all over Africa. What she calls a ‘notable example’ of
these involves the Rain Queen of the Lovedu , the last of whom
100 Op cit 50.
84
had four wives. Furth er details of such marriages are given by
Oomen in her note ‘T raditional woman-to- woman marriages and
the Recognition of Customary Marriages Act.’101
[114] Since the coming into operation of the Interim Constitution on
27 April 1994 the courts have giv en a series of decisions based on
the equality and huma n dignity provisions of the Interim
Constitution and the present Consti tution affordin g to same-sex
couples benefits that were previous ly enjoyed only by married
couples.102
[115] In the Home Affairs case,103 Ackermann J emphasised that
‘over the past decades an accelerating proce ss of transformation
has taken place in family relationsh ips, as well as in societal and
legal concepts regarding the family and what it comprises.’ The
judgments which I list in fn 102 above do not recognise same-sex
marriages as such but ra ther a parallel, equiva lent institution. It
may accordingly be ar gued that they do no t afford a basis for
adopting by judicial decision the first option sugg ested by the Law
Commission, viz the opening up of the instit ution of marriage to
101 2000 (63) THR-HR 274.
102 See Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T);
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and
Others 2000 (2) SA 1 (CC); Satchwell v President of the Republic of South Africa and
Another 2002 (6) SA 1 (CC); Du Toit v Minister of Welfare and Population Development 2003
(2) SA 198 (CC); J and Another v Director General Department of Home Affairs and Others
2003 (5) SA 621 (CC) and Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA).
103 Supra, at para 47.
85
same-sex couples, but rather as paving th e way for the adoption
by the legislature of the second or third options. Such a point is
clearly not without substance but it does not detrac t from the fact
that these decisions indicate a recognition of the process of
transformation to which Acke rmann J referred in the Home Affairs
decision.
[116] Parliament has also over the years since 1994 enacted
numerous provisions giving rec ognition, in some cases expressly
in others impliedly, to same-sex partnerships.104 These enactments
evidence an awareness on the part of Parliament of the changing
nature of the concept of the family in our society.
[117] I am satisfied in the circum stances that the extension of the
common law definition of marriage to same-sex couples cannot be
regarded in South Africa in 2004 as involvin g a fundamental
change in the traditional concept of marriage.
[118] It seems to me that the best wa y of ascertaining whether the
proposed extension would for us be me rely an incremental step or
would involve problems of great complexity, as Lord Hope of
Craighead suggested would be the case in th e United Kingdom, is
104 Details are to be found in footnote 41 to the judgment of the Constitutional Court in the
Home Affairs case, supra, and in footnote 33 to the judgment of the Constitutional Court in the
Du Toit case, supra.
To these may be added the Immigration Act 13 of 2002, s 1 of which includes in the definition
of ‘spouse’ a person who is a party to ‘a permanent homosexual or heterosexual relationship
which calls for cohabitation and mutual financial and emotional support, and is proven by a
prescribed affidavit substantiated by a notarial contract.’
86
to consider the main rules co mprising that part of the law
traditionally regarded as part of the law of ma rriage or matrimonial
relations.
[119] But before doing so it is appr opriate to refer to the reason
given by the Roman Dutch writers who dealt with the topic for the
rule restricting the marriage relati onship to heterosexual couples.
In his commentary on the Institutes
105 Arnoldus Vinnius says in
discussing Justinian’s definition of marriage, which is set out in Inst
1.9.1 and which is quoted in para [37] above:
‘of a male and a female.
For the union of two persons of the same sex is to be detested and is
condemned by the law of God, the law of nature and the laws of all nations.’
Brouwer, after quoting the definitions of Just inian and Modestinus,
says:106
‘We say “of a male and a female” in the singular to exclude polygamy: we
express both sexes to condemn lechery contrary to nature towards the same
sex.’
Similar views were express ed by Hendrik Jan Arntzenius: 107 ‘We
say “a man and a woman” which indicates that polygamy and the
unspeakable practice of homosexualism are repugnant to the nature of
marriage.’
105 In Quatuor Libros Institutionum Imperialium Commentarius Academicus et Forensis.
106 Op cit 2.28.3.
107 Institutiones Juris Belgici de Conditione Hominum, 1.2.3.2 (Van den Heever’s translation, p
52).
87
[120] We no longer condemn sodomy. 108 It follows that a major
reason given by jurists from the Roman Dutc h era for the
heterosexual requirement in the definition has now fallen away.
[121] Until comparatively recently there were other reasons
precluding the recogniti on in our law of sa me-sex marriages.
Because the principle of legal equality between the spouses was
not enshrined in our la w there were many ru les forming part of our
law of matrimonial relations whic h put the husband in a superior
position and the wife in an infe rior one. The law could thus not
easily accommodate same-sex unions be cause, unless the
partners thereto agreed as to who was to be the ‘husband’ and
who the ‘wife’, these rules could not readily be applied to their
union.
[122] Thus it was a cons equence of a marriage in our law that the
husband had (a) power as head of the family, which meant that he
had the decisive say in all matte rs concerning t he common life of
the parties, with the result, amongs t other things that the wife
automatically acquired her husband’s domicile; (b) marital power
over the person of his wife, by which was meant in modern times
108 See S v Kampher, supra, approved by the Constitutional Court in National Coalition for
Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) in
which it was held that the criminal offence of sodomy was unconstitutional.
88
representing her in civil legal proceedings;109 and (c) marital power
over his wife’s property. Powers (b) and (c) coul d be excluded by
antenuptial contract either completely or in part. Power (a) was an
invariable consequence of the marriage an d could not be
excluded.110
[123] The Matrimonial Property Act 88 of 1984 abolished the
husband’s marital power over his wife’s person and property in
respect of marriages entered in to after the commencement of the
Act and not governed by the Black Administr ation Act 38 of 1927.
The Marriage and Matrimonial Pro perty Law Amendment Act 3 of
1988 extended the pr ovisions of the Matrimonial Property Act to
the civil marriages of Blacks (whi ch were previously governed by
the Black Administration Act). Se ctions 29 and 30 of the General
Law Fourth Amendment Act 132 of 1993 abolished the marital
power that a husband had over the person and property of his wife
in respect of all marriages to wh ich it still applied and also his
power flowing from his position as head of the family. This Act
contained a number of other provis ions repealing or amending
statutory provisions which diffe rentiated between men and women
and, in particular betw een husbands and wives. A year before this
109 See Hahlo The South African Law of Husband and Wife 4 ed (1975) p 154.
110 For full particulars of the old law as it stood at the end of 1974 see Hahlo op cit pp 106 et
seq.
89
Act was passed Parliament passed the Domicile Act 3 of 1992,
which conferred on all persons over the age of eighteen years the
capacity to acquire a domicile of choice and thereby abolished the
common law rule that a wife autom atically acquired and followed
her husband’s domicile. The Guar dianship Act 192 of 1993
repealed the common law rule that a father is the nat ural guardian
of his legitimate childre n and replaced it by the rule that parents
share guardianship in respect of their legitimate children.
[124] As far as I am aw are the only common law rule for the
application of which it is necessary to be able to identify the
husband which still forms part of our matrim onial law is the rule
which provides that the proprieta ry consequences of a marriage
are determined, where the pros pective spouses have different
domiciles, by the law of the domic ile of the husband at the time of
the marriage. (This rule was estab lished by the deci sion of this
Court in Frankel’s Estate v The Master 111). All other rules apply
equally to both spous es. Thus spouses owe each other a
reciprocal duty of s upport and either spouse can be ordered to
support the other or, wh ere a redistribution order is competent, to
transfer assets to the other on divorce.
111 1950 (1) SA 220 (A).
90
[125] With the exception of the rule in Frankel’s case no problems
will be encountered in applying t he rules governing the relations
between husbands and wives to partners in a same-sex union. I do
not believe that the impossibilit y of applying the rule in Frankel’s
case to same-sex unions would give rise to insoluble problems. 112
The existence of this problem wo uld not constitute a reason for
refusing to extend the definition in the way we hav e been asked to
do.
[126] Although counsel for the respond ent did not c ontend that an
inability on the part of parties to a same-sex un ion to procreate
with each other was a basis for refu sing to grant the extension of
the definition sought, he did say, as I indi cated earlier, that
procreation is one of the characteristics going together to make up
marriage. In one of the minority j udgments in the Massachusetts
decision to which I referred above, 113 Cordy J, with whom Spina
and Sosman JJ concurred, said:
‘The institution of marriage provides the important legal and normative link
between heterosexual intercourse and procreation on the one hand and family
responsibilities on the other. The partners in a marriage are expected to
112 For a possible solution to the problem see the article by Elsabe Schoeman entitled ‘The
South African conflict rule for proprietary consequences of marriage: learning from the
German experience’ 2004 TSAR 115.
113 Goodridge and Others v Department of Public Health and Another, supra.
91
engage in exclusive sexual relations, with children the probable result and
paternity presumed.’
The learned judge went on to say that ‘a family defined by
heterosexual marriage continues to be the mo st prevalent social
structure into which the vast majority of children are born, nurtured
and prepared for prod uctive participation in civil society’ and
continued:
‘It is difficult to imagine a State purpose more important and legitimate than
ensuring, promoting and supporting an optimal social structure within which to
bear and raise children. At the very least, the marriage statute continues to
serve this important state purpose.’
He then considered wh ether the Massachusetts statute, construed
(as he held it had to be) as lim iting marriages to couples of the
opposite sex, remains a rational way to fu rther that purpose. He
concluded that it did. In reaching that c onclusion he said, amongst
other things:
‘As long as marriage is limited to opposite sex couples who can at least
theoretically procreate, society is able to communicate a consistent message
to its citizens that marriage is a (normatively) necessary part of their
procreative endeavour; that if they are to procreate, their society has
endorsed the institution of marriage as the environment for it and for the
subsequent rearing of their children; and that benefits are available explicitly
to create a supportive and conducive atmosphere for those purposes.
92
If society proceeds similarly to re cognize marriages between same-sex
couples who cannot procreate, it could be perceived as an abandonment of
this claim, and might result in the mistak en view that civil marriage has little to
do with procreation: just as the potential of procreation would not be
necessary for a marriage to be valid, marriage would not be necessary for
optimal procreation and child rearing to occur.’
[127] In my view it is appropriate to consider what importance or
relevance is to be a ttached in the present c ontext to the fact that
the parties to a same-sex unio n are incapable of procreating
‘naturally’ with each other.
[128] As was pointed out in the Halpern case when it was before
the Ontario Court of Appeal:114
‘While it is true that, due to biological realities only opposite-sex couples can
“naturally” procreate, same-sex couples can choose to have children by other
means, such as adoption, surrogacy and donor insemination.’
This fact in itself may well c onstitute sufficient refutation of the
arguments set out in Cordy J’s judgment in the Goodridge case
which I have quoted above.
[129] It is a controversial question in our law whether sterility (an
inability to procreate) not accompanied by impotence (an inability
to have intercourse) is a sufficient ground for the annulment of a
114 Supra, at para 93.
93
marriage. Venter v Venter115 is authority for the proposition that it is
not, except where the inability was deliberatel y concealed by the
affected spouse. Van Niekerk v Van Niekerk 116 on the other hand,
is authority for the contrary pr oposition, namely that inability to
procreate, even where it was not fraudulently concealed, is a
ground of annulment. This is subject, howeve r, to the important
proviso that this is not the case w here the parties knew that
procreation was not possible. 117 In a same-sex union the parties
would be aware at the time of the marriage that what the Ontario
Court of Appeal called ‘natural’ procreation is not possible. It
follows that their un ion, if it is to be rega rded as a marriage, would
not be subject to an nulment and the factor un der consideration is
not relevant.
[130] Further authority for this view is to be found in the judgment
of Ackermann J in the Home Affairs case.118 Having referred119 to
the reinforcement of ‘harmful and hurtful ster eotypes of gays and
lesbians’, Ackermann J said:
‘[50] A second stereotype, often used to bolster the prejudice against gay
and lesbian sexuality, is constructed on the fact that a same-sex couple
cannot procreate in the same way as a heterosexual couple. Gays and
115 1949 (4) SA 123 (W).
116 1959 (4) SA 658 (GW).
117 See the judgment of Wessels J at 667F and the judgment of De Vos Hugo J at 675H.
118 Supra, at paras 50 to 52.
119 Supra, at para 49.
94
lesbians are certainly individually permitted to adopt children under the
provisions of s 17(b) of the Child Care Act 74 of 1983 and nothing prevents a
gay couple or a lesbian couple, one of whom has so adopted a child, from
treating such child in all ways, other that strictly legally, as their child. They
can certainly love, care and provide for the child as though it was their joint
child.
[51] From a legal and constitutional point of view procreative potential is not
a defining characteristic of conjugal relationships. Such a view would be
deeply demeaning to couples (whether married or not) who, for whatever
reason, are incapable of procreating when they commence such relationship
or become so at any time thereafter. It is likewise demeaning to couples who
commence such a relationship at an age when they no longer have the desire
for sexual relations. It is demeaning to adoptive parents to suggest that their
family is any less a family and any less entitled to respect and concern than a
family with procreated children. I would even hold it to be demeaning of a
couple who voluntarily decide not to have children or sexual relations with one
another; this being a decision entirely within their protected sphere of freedom
and privacy.
[52] I find support for this view in the following conclusions of L’Heureux-
Dubé J (with whom Cory J and McLachlin J concurred) in Mossop [Canada
(Attorney-General) v Mossop (1993) 100 DLR (4
th) 658]:
“The argument is that procreation is somehow necessary to the concept of
family and that same-sex couples cannot be families as they are incapable of
procreation. Though there is undeniable value in procreation, the tribunal
could not have accepted that the capacity to procreate limits the boundaries of
95
family. It this were so, childless couples and single parents would not
constitute families. Further, this logic suggests that adoptive families are not
as desirable as natural families. The flaws in this position must have been
self-evident. Though procreation is an element in many families, placing the
ability to procreate as the inalterable basis of family could result in an
impoverished rather than an enriched version.”’ (Footnotes omitted.)
[131] I have already referre d to the fact that Pa rliament has in the
years since 1994 passed a number of statutes reco gnising same-
sex partnerships. As appears from the judgment given by
Moseneke J when this case was before the Consti tutional Court
there are at least 44 Acts of Parlia ment in which reference is made
to ‘husband’ and/or ‘wife’ either in the bo dy of the Act or in
regulations to the Act. 120 The extension of the definition of
marriage would not appear materially to affect the operation of
these statutory pr ovisions and I am satisf ied that the existence of
these provisions on the sta tute book woul d not prevent the
development of the common law under discussion from being
considered to be no more than an incremental step. In fact it may
well be that Parliament would cons ider it appropriate to pass an
Act, possibly by way of an amen dment to the Interpretation Act 33
of 1957, to provide that a reference in a statue to a ‘husband’ or a
‘wife’ in terms of a marriage under the Marr iage Act would include
120 Details may be found in fn 19 of the judgment.
96
a reference to a ‘spouse’ married in terms of that Act. This is,
however, for Parliament to decid e and as I am of the view, for the
reasons that I shal l give later in this judgment, that the order to be
given in this case should be suspended for two years to allow
Parliament to consider the matter, Parliament will have the full
opportunity to consider the advisability of enacting such a provision
when it considers other aspects of the matter.
ARE THE APPELLANTS DEBARRED FROM SEEKING RELIEF
BECAUSE THEY DID NOT CHALLENGE THE
CONSTITUTIONAL VALIDITY OF s 30(1) OF THE MARRIAGE
ACT?
[132] I proceed to consider whether, as the court a quo held, this
Court is precluded from granting relief to the appellants because
they did not chal lenge the constituti onal validity of s 30(1) of the
Marriage Act, which sets out the marriage formula. This formula,
which has been quoted ab ove, is clearly based on the declaration
prescribed by the Order in Council of 7 September 1838. 121
Section 7, as amend ed by an Order in Council of 3 April 1840,
provided that in the case of marr iages other than those using the
form and ceremony or ritual of the Anglic an or Dutch Reformed
121 See para [77] above.
97
Churches, each of t he parties had to ma ke the following
declaration: ‘I do solemnly decl are that I know not of any lawful
impediment why I, A.B., may not be joined in matr imony to C.D.,
here present.’ Thereaft er each of the parties had to say to the
other: ‘I call up on these persons here pres ent to witness that I,
A.B., do take C.D to be my lawful wedded wife (or husband).’122
[133] There is no section of the Ac t that expressly approves the
common law definition of marriage and I do not think that s 30(1)
can be regarded as placing what may be ca lled a legislative
imprimatur on that definition. Clearly what has happened is that the
marriage formula contained in the Act was framed on the
assumption that the common law defi nition was the correct one,
which it was in 1838 and in 1961.
[134] The question to be considered is whether if the common law
definition were to change (as I beli eve it will have to if Parliament
does not take other action to ensu re that the appellant’s rights to
equality and human dign ity are not infringed) the Court would be
able to modify the language of the formula so as to bring it in line
with an extended definition.
122 See also s 12 of the Huwelijkswet, La w 3 of 1871 (Transvaal) and s 13 of the
Huwelijkswet, Hoofdstuk LXXXVIII of the Orange Free State Lawbook.
98
[135] It is well settled that ‘it is wi thin the powers of a court to
modify the language of a stat utory provision where this is
necessary to give effect to what was clearly the legislature’s
intention’.123 Here Parliament’s intention was to provide a formula
for the use of those capable of ma rrying each other and wishing to
do so, unless in the case of a marriage solemnized by a marriage
officer who was a minist er of religion the form ula observed by the
denomination to which the minister in question belonged had been
approved by the Minister of Home A ffairs. It is important to note
that no limitations are placed on t he Minister’s power to approve a
religious marriage formula. In oth er words, there is nothing to
prevent the Minister from, for exam ple, approving such a formula
which uses the word ‘spouse’ instead of ‘wife’ or ‘husband’ in the
statutory formula. This indicates clearly that Parliament is not to be
taken as having i ntended to approve the comm on law definition
and, as it were, to prohibit same-sex marriages by failing (or
refusing) to provide a formula for use thereat. Tha t is why I say
that Parliament’s intention was to provide a formula for the use of
those capable of marrying each other and wishing to do so.
123Per Schreiner JA in Durban City Council v Gray 1951 (3) SA 568 (A) at 580 (B).
99
[136] Francis Bennion,124 refers to a presumpti on that an updating
construction is to be given to statutes except those comparatively
rare statutes intended to be of un changing effect, which he calls
‘fixed-time Acts.’ All other Acts he calls ‘ongoing Acts’.
He explains the law as follows:
‘It is presumed that Parliament intends the court to apply to an ongoing Act a
construction that continuously updates its wording to allow for changes since
the Act was initially framed (an updating construction). While it remains law, it
is to be treated as always speaking. This means that in its application on any
date, the language of the Act, though necessarily embedded in its own time, is
nevertheless to be construed in accordance with the need to treat it as current
law.’
This, he says,
‘states the principle, enunciated by the Victorian draftsman Lord Thring, that
an ongoing Act is taken to be always speaking. While it remains in force, the
Act is necessarily to be treated as current law. It speaks from day to day,
though always (unless textually amended) in the words of its original drafter.
As Lord Woolf MR said of the National Assistance Act 1948 –
“That Act had replaced 350 years of the Poor Law and was a prime example
of an Act which was “always speaking”. Accordingly it should be construed by
continuously updating its wording to allow for changes since the Act was
written.”’
124 Statutory Interpretation 3 ed (1997) p 686.
100
Later on Bennion says:125
‘Each generation lives under the law it inherits. Constant formal updating is
not practicable, so an Act takes on a life of its own. What the original framers
intended sinks gradually into history. While their language may endure as law,
its current subjects are likely to find that law more and more ill-fitting. The
intention of the originators, collected from an Act’s legislative history,
necessarily becomes less relevant as time rolls by. Yet their words remain
law. Viewed like this, the ongoing Act resembles a vessel launched on some
one-way voyage from the old world to the new. The vessel is not going to
return; nor are its passengers. Having only what they set out with, they cope
as best they can. On arrival in the present, they deploy their native
endowments under conditions originally unguessed at.
In construing an ongoing Act, the interpreter is to presume that Parliament
intended the Act to be applied at any future time in such a way as to give
effect to the true original intention. Accordingly the interpreter is to make
allowances for any relevant changes that have occurred, since the Act’s
passing, in law, social conditions, te chnology, the meaning of words, and
other matters. Just as the US Constitution is regarded as “a living
Constitution”, so an ongoing British Act is regarded as “a living Act”. That
today’s construction involves the supposition that Parliament was catering
long ago for a state of affairs that did not then exist is no argument against
that construction. Parliament, in the wording of an enactment, is expected to
anticipate temporal developments. The dr after will try to foresee the future,
and allow for it in the wording.’
125 Op cit p 687.
101
[137] Among the examples he give s of the applic ation of the
working of the presumption are the following:126
‘Changes in the practices of mankind may necessitate a strained construction
if the legislator’s object is to be achieved.
Example 288.16 The Carriage by Air Act 1961 gives legislative force to the
Warsaw Convention as amended at The Hague in 1955, which is set out in
Sch 1. The Convention limits liability for loss of or damage to “registered
baggage”, but does not explain what “registered” means or what “registration”
entails. Lord Denning MR explained that originally airlines kept register books
in which all baggage was entered, but that this had been discontinued. He
added: “What then are we to do? The only solution that I can see is to strike
out the words ‘registered’ and ‘registration’ wherever they occur in the articles.
By doing this, you will find that all the articles work perfectly, except that you
have to find out what a ‘baggage check’ is.”
Example 288.16A A reference in an enactment originating in 1927 to a
business which a company “was formed to acquire” was held to cover an off
the shelf company, even though such companies were unknown in 1927.
…
Developments in technology The nature of an ongoing Act requires the court
to take account of changes in technology, and treat the statutory language as
modified accordingly when this is needed to implement the legislative
intention.
Example 288.19 Section 4 of the Foreign Enlistment Act 1870 makes it an
offence for a British subject to accept any engagement in “the military or naval
126 Op cit pp 695-7.
102
service” of a foreign state which is at war with a friendly state. The mischief at
which s 4 is aimed requires this phrase to be taken as now including air force
service. Textual updating of the 1870 Act was recommended in the Report of
the Committee of Privy Councillors appointed to inquire into the recruitment of
mercenaries, but has not been done. Even so it seems that a modern court
should treat “military or naval service” in s 4 as including any service in the
armed forces of the state in question.’
(Footnotes omitted.)
[138] If one applies this presumption to the marriage formula in s
30(1) of the Marriage Act, it is cl ear that, in order to give effect to
Parliament’s intenti on, it would not onl y be permissible but
appropriate to regard the words ‘lawful wife (o r husband)’ as
capable of including the words ‘law ful spouse’ if the common law
definition were to be extended so as to cover same-sex marriages.
It follows that s 30(1) of the Marr iage Act does not afford a basis
for denying the appellants relief in this matter.
SHOULD THE COURT’S ORDER BE SUSPENDED TO ENABLE
PARLIAMENT TO DEAL WITH THE MATTER?
[139] I am satisfied for the reasons I have given that the appellants
have established that the continued application of the common law
definition of marriage infringes th eir constitutional rights to equality
and human dignity and that it is possible for this Court to give them
an effective remedy because the extension of that definition to
103
cover same-sex unions would be an in cremental step in the
development of the law and wo uld not involve the court in
trespassing on the domain of the legislatur e by effecting extensive
amendments to the law involving problems of great complexity.
On the other hand it is also rele vant to bear in mind that the Law
Reform Commission in its Discuss ion Paper to which I have
referred127 has drawn attention to two other possible remedies to
the problem raised by the appella nts which this Court could not
consider for the reasons I mentioned.
[140] It is desirable that all three options be carefully considered by
Parliament before a final decision is taken as to which remedy
should be adopted in this countr y. I am deeply conscious of the
fact that this Court, consisting as it does of unelected judges,
should not do anything which prej udices or even possibly pre-
empts the decision Parliament ta kes on the matter . Important and
wide ranging policy issues have to be considered. Our conclusion,
limited as it is to a considerati on of but one of the available
options, is based sole ly on juridical cons iderations. The policy
issues are for Parlia ment, not for us . This is a result of the
application of the doctri ne of the separation of powers, which, as
the Constitutional Court has re cently reminded us, must be
127 See para [62] above.
104
respected by the courts. See Zondi v Member of the Executive
Council for Traditional and Local Government Affairs and Others,
an as yet unreported decision of the Constitutional Court, delivered
on 15 October 2004, in which Ngcobo J, discussing what the
appropriate remedy would be in a case where certain provisions in
the Pound Ordinance (KwaZulu-Nat al), 1947, were found to be
inconsistent with the Constitution, pointed out (at para 122) that, in
deciding whether word s should be severed fr om a provision or
read into one, ‘there are two primary consider ations to be kept in
mind: The need to afford appropriate relief to successful litigants,
on the one hand, and the need to respect s eparation of powers
and, in particular, the role of the legislature as the institution that is
entrusted with the task of enacting legi slation, on the other.’ Later
(in para 123) he said that ‘when curing a defe ct in [a] provision
would require policy decisions to be made, reading-in or severance
may not be appropriate. So too where there are a range of options
open to the legislature to cure a defect. This Court should be slow
to make choices that are primarily to be made by the legislature.’
In the present case Parliame nt may decide, after a full
consideration of all the relevant factors, that one of the other
options suggested by the Law Reform Commission should be
adopted and if th at decision survives such constitutional scrutiny
105
as that to which it may be s ubjected, that will be the answer our
country gives to the problem.
[141] I am accordingly satisfied that the appropriate way forward is
for this Court to make an orde r within its powers to grant the
appellants relief but to suspend such order for two years to enable
Parliament to deal with the matter.
[142] Counsel for the appellants argued that such suspension
would not be either competent or appropriate. I do not agree.
[143] As far as this Cour t’s powers are conc erned, the matter,
being a constitutional one, is governed by s 172(1) (b) of the
Constitution, which, it will be recalled, empowers the Court to
‘make any order that is just and equitable, including –
(i) an order limiting the retrospective effect of the declaration of invalidity;
and
(ii) an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct the defect.’
Even if one assumes that a decis ion to develop the common law -
because without the deve lopment it is not in a ccord with the spirit,
purport and objects of the Bill of Rights - does not amount to a
declaration of invalidity (a matter on which it is not necessary for
me to express an opinion), it is clear that the Cour t’s powers to
grant ‘any order that is just and equitable’ must include the power
106
to suspend an order developi ng the common law, when the
problem under consideration can al so be solved by other methods
which only Parliament can employ and where the ultimate decision
as to which method shou ld be employed dep ends to a substantial
degree on policy considerations.
[144] If this Court were to plump for the only remedy open to it, it is
likely, if this Court’s order is not suspended, that many same-sex
couples will get married. This factor w ill clearly make it difficult, if
not impossible, for Parliament to decide to adopt one of the other
options set out in the Law Reform Commission’s report.
[145] There is no case of which I am aw are where an order
developing the common law has been suspended, but in a number
of cases where statutory provis ions were decl ared invalid the
Constitutional Court has ordered that a s tatutory provision
declared invalid was to remain in force for a spec ified period to
enable Parliament to co rrect the defect in the provision. Under the
Interim Constitution such orders were made under s 98(5) thereof
which provided that the Constitutional Court might ‘in the interests
of justice and good government’ re quire Parliament or any other
competent authority, within a peri od specified by the Court, to
correct the defect in a provisio n declared to be invalid, which
provision was to remain in force pending correction or the expiry of
107
the specified period. One of the cases where this power was
exercised was Fraser v Children’s Co urt, Pretoria North, and
Others,128 in which it was said 129 that regard being had, inter alia,
to the nuanced legislative respons es which might be available in
meeting the issues raised by the case, it was a proper case to
require Parliament to correct the defects identi fied in the relevant
statutory provision by an appropriat e statutory provision. Section
98(5) of the Interim Co nstitution has been re placed by section
172(1)(b) (ii) of the Consti tution, which is se t out above and which
does not repeat the phra se ‘in the interests of justice and good
government’ although this is th e test still ap plied by the
Constitutional Court.130
[146] In the present case the matter has since April 1998 enjoyed
the attention of the Law Reform Commission. In its report to which
I referred earlier the Commission requested respondents to submit
written comments and representations by 1 December 2003. It is
clearly envisaged that after the comments and representations it
has received have been evaluated and it has finally deliberated on
the matter, a report will be submitted to the Mini ster of Justice and
Constitutional Developm ent for tabling in Parliament. For the
128 1997 (2) SA 261 (CC).
129 In para 50 at 283 I-284 B).
130 See Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC)
at 434G – H.
108
reasons I have given ea rlier I think it impor tant that Parliament be
given a free hand to consider the matter and all the policy factors
that arise without being subject to pressure of any kind flowing
from the fact that o ne of the options to be co nsidered by it has
already been implemented by judici al decision, (without the policy
implications of that option, or the other options, being evaluated).
[147] I am of course aware of the fact that the Ontario Court of
Appeal, overruling the ma jority in the Divisiona l Court of Justice,
ordered that its declaration that the common law definition was
invalid and its reformulation thereof was to have immediate effect. I
do not think that the approach set out in that judgment should be
applied here. In Canada there is, as far as I am aware, no statutory
equivalent to s 172(1) (b) of our Constitutio n. The Canadian courts
have assumed a power to give ‘temporary force and effect’ to
unconstitutional laws to a llow the Legislature time to pass
correcting legislation.
131 The leading case on the point is Schachter
v Canada,132 in which Lamer CJC said:133
‘Temporarily suspending the declaration of invalidity to give Parliament or the
provincial Legislature in question an opportunity to bring the impugned
legislation or legislative provision into line with its constitutional obligations will
131 See Hogg Constitutional Law of Canada 4 ed (looseleaf) para 37.1 (d), pp 37-4.
132 (1992) 10 CRR (2d) 1 (SCC).
133 At 27.
109
be warranted even where striking down has been deemed the most
appropriate option on the basis of one of the above criteria if:
A. striking down the legislation without enacting something in its place
would pose a danger to the public;
B. striking down the legislation without enacting something in its place
would threaten the rule of law; or,
C. the legislation was deemed unconstitutional because of under-
inclusiveness rather than overbreadth, and therefore striking down the
legislation would result in the deprivation of benefits from deserving
persons without thereby benefiting the individual whose rights have
been violated.
I should emphasize before I move on that the above propositions are intended
as guidelines to assist courts in determining what action under s. 52 is most
appropriate in a given case, not as hard and fast rules to be applied
regardless of factual context.’
Professor Hogg 134 points out that these ‘guidelines’ were not
referred to in and do not accommodate five subsequent decisions
of the Supreme Court of Canada in which te mporary validity was
given to certain laws to enable the legislature to r edraft them and
in one case 135 to allow for consultation with Aborigi nal people
before a new law was drafted.
The Ontario Court of Appeal in Halpern applied the ‘guidelines’
very strictly, without referring to Lamer CJC’s statement that they
134 Op cit at pp 37-8 to 37-9 (fn38).
135 Corbiere v Canada [1999] 2 SCR 203.
110
were not hard and fast rules or to the subs equent Supreme Court
of Canada decisions to which Professor Hogg refers. Other
Canadian courts confron ted with the problem have suspended the
coming into effect of their orders. Thus in Quebec Lamelin J
suspended for two years the order she made in Hendricks v
Quebec Procureur General, 136 as did the majority of the Divisional
Court in the Halpern case.137 The British Columbia Court of Appeal
suspended its order in EGALE Canada Inc v Canada (Attorney
General)138 until the expiry of the two y ear period imposed in the
Halpern case in the Divisional Court. After the Attor ney General of
Canada indicated that he did not intend proceeding with his appeal
against the Court of A ppeal decision in the Halpern case, the
Quebec and British Columbia suspensions were uplifted. 139 The
Supreme Court of Massachusetts s tayed entry of its judgment in
the Goodridge case for 180 days to permit the legislat ure to take
such action as it mi ght deem appropriate in the light of the Court’s
opinion.
[148] The power of a South African court to suspend the coming
into effect of an order in a cons titutional case to enable the
136 [2002] RJQ 2506 (Superior Court of Quebec).
137 Supra.
138 (2003) 225 DLR (4th) (BCCA)
139 See Catholic Civil Rights League v Hendricks [2004] QJ No 2593 and EGALE Canada Inc
v Canada (Attorney-General) 228 DLR (4th) 416 (BCCA).
111
legislature to deal with the matter is not su bject to the strict
application of ‘guidelines’ such as those set forth in the Schachter
case, with the result that this part of the Court of Appeal decision in
the Halpern case is not applicable in this country.
[149] In the circumstances I am sati sfied that this court should
suspend the order it makes for a per iod to allow Parliament to deal
with the matter in such a way as to bring an end to the unjustifiable
breach of the appellants’ rights to equality and human dignity. This
would have the result that the appe llants would be successful in
putting a stop to the breach of those righ ts, either because
Parliament will enact appropriate legi slation to deal with the matter
or, if it fails to do so (either because it enacts no legislation or
because it enacts legislation wh ich does not surviv e constitutional
scrutiny 140 ), because this Court’s order would then come into
operation.
[150] I would make an order a llowing the appeal with costs and
replacing it with an order declaring that th e intended marriage
between the appellants, provided the formaliti es set out in the
Marriage Act 25 of 1961 are comp lied with, would be capable of
being recognised as a legally va lid marriage, but suspending this
140 The constitutionality of the other options suggested by the Law Reform Commission was
not argued before us and we are not in a position to pronounce thereon, even if it were
appropriate for us to do so, which in my opinion it is not.
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declarator to enable Parliament to e nact legislation to ensure that
the appellants’ rights to equality and huma n dignity are not
unjustifiably infringed and provid ing that if such legislation is
enacted, the declarator would fall away.
I would also order the respondents to pay the ap plicants’ costs in
the court below.’
……………..
IG FARLAM
JUDGE OF APPEAL