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Fourie and Another v Minister of Home Affairs and Another (CCT25/03) [2003] ZACC 11; 2003 (5) SA 301 (CC); 2003 (10) BCLR 1092 (CC) (31 July 2003)

80 Reportability
Constitutional Law
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Brief Summary

Constitutional Law — Same-sex marriage — Application for leave to appeal — Applicants, in a permanent same-sex relationship, sought a declaratory order for recognition of their marriage under the Marriage Act — High Court dismissed the application, holding that marriage is a legal union between a man and a woman — Applicants contended that the dismissal raised constitutional issues regarding dignity and equality — Court held that the matter should first be considered by the Supreme Court of Appeal, as it involved the development of common law and statutory rules of marriage — Application for direct appeal to the Constitutional Court refused.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned an application for leave to appeal directly to the Constitutional Court in terms of Rule 18 of the Constitutional Court Rules, arising from litigation about the legal recognition of a same-sex relationship as a “marriage” under South African law.


The applicants were Marie Adriaana Fourie and Cecelia Johanna Bonthuys, two women in a permanent same-sex partnership. The respondents were the Minister of Home Affairs and the Director-General: Home Affairs, cited in their capacities responsible for the administration and registration of marriages and identity-related records.


The procedural history was central to the Constitutional Court’s determination. The applicants had approached the Pretoria High Court for declaratory and mandatory relief under the Marriage Act 25 of 1961 and related registration mechanisms. Roux J dismissed that application on 18 October 2002, and made an adverse costs order (including the costs of two counsel) against the applicants and the amicus curiae (the Lesbian and Gay Equality Project), though it was later recorded that the respondents had abandoned the costs order against the amicus.


Following that dismissal, the applicants sought a positive certificate under Rule 18(2) from the High Court to facilitate a direct appeal to the Constitutional Court. The High Court refused to certify the matter for direct appeal, but granted leave to appeal to the Supreme Court of Appeal (SCA). Despite that, the applicants then approached the Constitutional Court under Rule 18(7) for leave to appeal directly to it.


The general subject-matter underpinning the litigation was the applicants’ attempt to obtain legal recognition and registration of their relationship as a marriage, framed as implicating constitutional rights, but the immediate proceedings before the Constitutional Court were confined to whether a direct appeal should be entertained at that stage.


2. Material Facts


The material facts accepted and relied upon by the Constitutional Court were largely procedural and undisputed.


The applicants were both female and had lived together as partners in a permanent same-sex relationship since June 1994. In the High Court, they sought, first, a declaratory order that a “marriage” between them would be legally binding in terms of the Marriage Act 25 of 1961, provided that the formalities in the Act were complied with. Second, they sought an order directing the respondents to register their relationship as a marriage in terms of the Marriage Act and the Identification Act 68 of 1997. The respondents opposed this relief.


In the High Court, the applicants’ case proceeded on the premise that the legal rule excluding same-sex marriage had, since the advent of the Constitution, either already developed or ought to be developed to be consistent with the spirit, purport and objects of the Bill of Rights, and that the exclusion infringed their constitutional rights to equality and dignity, including the right to be free from unfair discrimination.


The High Court dismissed the application, holding that the declaratory relief sought under section 19(1)(a)(iii) of the Supreme Court Act 59 of 1959 was directed at an assumed right with no validity in law. The High Court held that under the common law marriage was the union of a man and a woman for a lifelong mutual relationship and that the Marriage Act contemplated marriage between a male and a female to the exclusion of others. It followed, in the High Court’s view, that an order compelling registration would require the respondents to do what was unlawful.


After the High Court refused to issue a positive Rule 18(2) certificate but granted leave to appeal to the SCA, the applicants pursued leave in the Constitutional Court for a direct appeal, contending that this would provide speedier and more cost-effective vindication of constitutional rights, and arguing that the SCA’s involvement was unnecessary given the Constitutional Court’s existing jurisprudence on same-sex partnerships.


3. Legal Issues


The Constitutional Court was required to determine two closely connected legal questions.


The first question was whether the High Court’s dismissal of the application constituted a “decision on a constitutional matter”, which is a jurisdictional prerequisite for a direct appeal in terms of section 167(6) of the Constitution read with Rule 18. This question concerned the legal characterisation of the High Court’s decision in light of what had been pleaded and argued, rather than the substantive merits of same-sex marriage recognition.


The second question, arising once the constitutional-matter threshold was addressed, was whether it was in the interests of justice to permit a direct appeal to the Constitutional Court at that stage. This question involved a value judgment guided by established criteria developed in Constitutional Court jurisprudence, including considerations of institutional role, the development of the common law, and whether the SCA should first consider matters implicating common-law development.


The dispute before the Constitutional Court was therefore not the ultimate constitutionality of the exclusion of same-sex couples from marriage, but the procedural and jurisdictional suitability of the case for immediate determination by the Constitutional Court, as opposed to being heard first by the SCA.


4. Court’s Reasoning


The Court set out the governing framework for direct appeals. It emphasised that section 167(6) of the Constitution, read with Rule 18(6), permits a direct appeal from a court other than the SCA only with leave of the Constitutional Court, and only where it is in the interests of justice. The Court referred to Khumalo and Others v Holomisa for the proposition that the Constitution intends the interests of justice, coupled with leave, to be the determinative criterion for when appeals should be entertained directly by the Constitutional Court. It also reiterated that the impugned decision must be on a constitutional matter.


On the constitutional-matter enquiry, the Court noted that the High Court had taken the view that no constitutional matter arose, largely because there had been no constitutional challenge to the provisions of the Marriage Act and because the applicants had not established a right to marry under common law or statute. The Constitutional Court highlighted that, in the High Court, the applicants did not seek a declaration that the Marriage Act or Identification Act was inconsistent with the Constitution, nor did they seek relief that explicitly required the development of the common law to recognise same-sex marriage with appropriate consequences. The Court observed that relief of the kind the applicants required could be achieved only if both the common law and the relevant statutory infrastructure were developed or amended to permit marriage between gay and lesbian couples, but that the applicants had not advanced a challenge to the statutory infrastructure in their notice of motion, founding affidavits, or written argument before the High Court.


When assessing the interests of justice, the Court accepted that the applicants contended their prospects of success were high in light of prior Constitutional Court decisions concerning permanent same-sex partnerships, and it noted that leave to appeal had been granted to the SCA. However, the Court made clear that prospects of success are not necessarily decisive for direct access or direct appeal; other factors must be weighed as well. The Court referred in this regard to its jurisprudence, including Fraser v Naude and Others, on the interests-of-justice standard.


The Court placed significant weight on the complexity and breadth of the legal issues that would likely arise on appeal. It reasoned that the appeal would raise complex and important questions about the conformity of the common law and statutory rules of marriage with the Constitution and the Court’s jurisprudence. Marriage and its legal consequences were described as lying at the heart of the common law of persons, family, and succession, and also as embedded in a wider statutory scheme, not limited to the Marriage Act alone. The Court further pointed out that marriage touches many other areas of law, including labour law, insurance, and tax, and it noted the wide spread of statutory references to “husband” and “wife”.


Although the applicants emphasised the cost and time savings of a direct appeal, and the desirability of an early definitive determination, the Court held that these factors should not displace the need for coherent and harmonious development of the common law read with applicable statutes within the constitutional context. The Court stressed that the views of the SCA were of “considerable importance” where the constitutional issues were intertwined with the development of the common law.


In support of this institutional sequencing, the Court relied on Amod v Multilateral Motor Vehicle Accidents Fund, where it had held that when a constitutional matter involves the development of the common law, the SCA’s expertise and breadth of jurisdiction make its views particularly important, and that the Constitutional Court ought not ordinarily to exercise its common-law development jurisdiction without the matter first having been dealt with by the SCA. Applying that principle, the Court concluded that the interests of justice required the appeal to be heard first by the SCA, and it endorsed the High Court’s assessment (in refusing the Rule 18(2) certificate) that the dispute was pre-eminently suited to initial determination by the SCA.


Finally, the Court addressed the applicants’ request that, if direct appeal were refused, the Constitutional Court should grant leave to appeal to the SCA. It held that such an order was neither competent nor necessary because the High Court had the power to grant leave to appeal to the SCA, and it had already done so. It also noted that, once the SCA had disposed of the matter, either party could approach the Constitutional Court for leave to appeal.


On costs, the Court considered it inappropriate to make any order as to costs in the Constitutional Court proceedings.


5. Outcome and Relief


The Constitutional Court refused the application for leave to appeal directly to it from the decision of Roux J in the Pretoria High Court.


No order as to costs was made in the Constitutional Court proceedings.


The Court indicated that leave to appeal to the SCA had already been granted by the High Court, and that after the SCA’s determination it would remain open to either party to seek leave to appeal to the Constitutional Court if so advised.


Cases Cited


Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC).


Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others [1998] ZACC 9; 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855 (CC).


Amod v Multilateral Motor Vehicle Accidents Fund [1998] ZACC 11; 1998 (4) SA 753 (CC); 1998 (10) BCLR 1207 (CC).


Islamic Unity Convention v Independent Broadcasting Authority and Others [2002] ZACC 3; 2002 (4) SA 294 (CC); 2002 (5) BCLR 433 (CC).


Carmichele v Minister of Safety and Security and Another [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC).


National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC).


National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC).


Satchwell v President of the RSA and Another [2002] ZACC 18; 2002 (6) SA 1 (CC); 2002 (9) BCLR 986 (CC).


Du Toit and Another v Minister for Welfare and Population Development and Others [2002] ZACC 20; 2003 (2) SA 198 (CC); 2002 (10) BCLR 1006 (CC).


J and Another v Director General: Department of Home Affairs and Others [2003] ZACC 3; 2003 (5) BCLR 463 (CC).


Fraser v Naude and Others 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC).


Legislation Cited


Constitution of the Republic of South Africa, 1996: sections 9, 9(3), 10, 38, 167(6), 173.


Marriage Act 25 of 1961.


Identification Act 68 of 1997.


Supreme Court Act 59 of 1959 (section 19(1)(a)(iii)).


Rules of Court Cited


Rules of the Constitutional Court: Rule 18, including Rule 18(2), Rule 18(6), and Rule 18(7).


Held


The Constitutional Court held that leave to appeal directly to it should be refused. It considered that, even assuming prospects of success, the matter was not one where the interests of justice favoured bypassing the Supreme Court of Appeal, particularly because the issues likely to arise implicated complex questions concerning the development of the common law and the interaction between common law and an extensive statutory framework regulating marriage and its consequences.


The Court further held that it was neither competent nor necessary for it to grant leave to appeal to the SCA because the High Court had already granted such leave. It made no costs order in the Constitutional Court proceedings.


LEGAL PRINCIPLES


The Constitutional Court applied the principle that a direct appeal from a court other than the Supreme Court of Appeal is permitted only with the Constitutional Court’s leave and only when it is in the interests of justice, as contemplated by section 167(6) of the Constitution and Rule 18. The interests-of-justice enquiry is case-specific and not determined solely by prospects of success.


The Court applied the additional principle that a direct appeal under Rule 18 requires a decision on a constitutional matter, and that the framing of the relief in the lower court, including whether legislation or the common law was directly challenged, is relevant to assessing whether a constitutional matter is properly raised.


Where the constitutional issues are materially connected to the development of the common law, the Court applied the principle that the SCA’s jurisdiction and expertise in the common law make it institutionally appropriate that the SCA consider the matter first, and that the Constitutional Court ought not ordinarily to exercise its common-law development jurisdiction without the SCA having dealt with the matter, as articulated in Amod v Multilateral Motor Vehicle Accidents Fund.

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Fourie and Another v Minister of Home Affairs and Another (CCT25/03) [2003] ZACC 11; 2003 (5) SA 301 (CC); 2003 (10) BCLR 1092 (CC) (31 July 2003)

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 25/03
MARIE ADRIAANA FOURIE First Applicant
CECELIA JOHANNA BONTHUYS Second
Applicant
versus
THE MINISTER OF HOME AFFAIRS First
Respondent
THE DIRECTOR GENERAL: HOME AFFAIRS Second
Respondent
Decided on: 31 July 2003
JUDGMENT
MOSENEKE J:
Introduction
[1]
The
applicants seek leave to appeal directly in terms of Rule 18 of the Rules of
this Court, against the judgment and order of Roux
J made on 18 October 2002 in
the Pretoria High Court. Roux J dismissed their application and ordered that
the applicants and The
Lesbian and Gay Equality Project, which intervened as
amicus curiae,
pay the respondents’ costs jointly and
severally,
[1]
such costs to include
those consequent upon the use of two counsel. The applicants are both females
who have been living together
as partners in a permanent same-sex relationship
since June 1994. In the application before the High Court, the applicants
sought,
first, a declaratory order that the “marriage” between them
was legally binding in terms of the Marriage
Act
[2]
(the Marriage Act), provided
that such marriage complied with the formalities prescribed in the Act;
secondly, an order directing
that the first and second respondents register
their relationship as a marriage in terms of the Marriage Act and the
Identification
Act.
[3]
The
respondents opposed the application.
[2]
The application appears to
be premised on the assumption that the rule of law that barred same-sex
marriages has, since the introduction
of the Constitution, been developed to
warrant the relief sought or that it should be developed to accord with the
spirit, purport
and objects of the Bill of Rights. Moreover, the
applicants’ premise is that the rule amounts to an invasion of their
constitutional
rights to dignity
[4]
and equality,
[5]
including the right
to be free from unfair
discrimination.
[6]
[3]
The High Court dismissed the
application on the ground that, to the extent that the applicants sought a
declaratory order under section
19(1)(a)(iii) of the Supreme Court
Act,
[7]
the right that they sought to
have determined was no more than an assumption that they were married and thus
had no validity in law.
The court held that, under the common law, marriage is
the legal union of a man and a woman for the purpose of a lifelong mutual
relationship and that the Marriage Act contemplates a marriage between a male
and a female, to the exclusion of all others. The
court concluded that to
require the respondents to register their relationship as a marriage would be to
compel them to do what is
unlawful.
[4]
Aggrieved by that decision,
the applicants approached the High Court for a positive certificate under Rule
18(2) for leave to appeal
directly to this Court and if refused, to the Supreme
Court of Appeal (SCA). The High Court refused to issue a positive certificate
but granted the applicants leave to appeal to the SCA. The applicants, have
nevertheless, approached this Court in terms of Rule
18(7).
[5]
The applicants contend that
it is in the interests of justice that their appeal be heard directly by this
Court. They submit that
such leave should be granted on the grounds that,
first, the High Court erred in approaching the claim for a declarator as
discretionary
relief under section 19(1)(a)(iii) of the Supreme Court Act rather
than as a prayer for effective relief in terms of section
38
[8]
read together with section
173
[9]
of the
Constitution;
[10]
secondly, a direct
appeal to this Court would save substantial legal costs and provide a speedy and
effective restoration of their
constitutional rights to equality and dignity as
well as the rights of other members of the homosexual community; thirdly, the
equality
and dignity jurisprudence of this Court has ripened to a stage where
the prospects of success of their claim are high and the skill
and experience of
the SCA in developing the common law would be neither relevant nor necessary;
and fourthly, this case raises important
constitutional issues which deserve the
attention of this Court to pronounce, in a holistic manner, on the
constitutional rights
of persons who are involved in permanent same-sex
partnerships.
[6]
The respondents have filed a
notice of intention to oppose the present
application.
The applicable test
[7]
Section
167(6)
[11]
of the Constitution, read
with Rule 18(6),
[12]
governs when an
appeal from a decision of any court other than the SCA may be brought directly
to this Court. Such an appeal is
subject to the leave of this Court, which must
be granted when it is in the interests of justice to do so. In
Khumalo and
Others v Holomisa
[13]
it was
accordingly held that the “Constitution intends that the interests of
justice (coupled with leave of this Court) be
the determinative criterion for
deciding when appeals should be entertained by this Court.” However, the
decision in respect
of which leave is sought must be on a constitutional
matter.
[14]
Once it is clear that
the case does raise a constitutional matter, the next question is whether it is
in the interests of justice
for an appeal to lie directly to this Court. This
Court has developed criteria for deciding whether it is in the interests of
justice
or not and has made it clear that each case has to be decided on its own
merits.
[15]
Was
the dismissal of the application a decision on a constitutional matter?
[8]
It is crucial to ascertain
first whether the dismissal of the application constitutes a decision on a
constitutional matter. The
High Court took the view that the issues before it
did not raise any constitutional matter since there was no constitutional
challenge
to the applicable provisions of the Marriage Act; the relief sought
was discretionary under section 19 of the Supreme Court Act and
the applicants
had not established, under the common law or statute, the right to
marry.
[9]
Before the High Court, the
applicants did not seek a declaration that the Marriage Act and the
Identification Act were inconsistent
with the Constitution or an order that the
common law should be developed to make provision for same-sex partnerships with
consequences
appropriate to such partnerships. Such relief, if sought, would
clearly have raised constitutional
matters.
[16]
It seems to me that
the relief they required can be achieved only if both the common law and the
relevant statutory infrastructure
is developed or amended to permit marriage
between gay and lesbian couples. However, neither in their notice of motion,
nor in their
founding affidavits, nor in their written argument before the High
Court, did the applicants advance a challenge to the statutory
infrastructure.
Interests of justice
[10]
The applicants’ claim
that their prospects of success on appeal are high in the light of prior
decisions of this Court on permanent
same-sex
partnerships.
[17]
Although their
application was unsuccessful before the High Court, leave was granted for their
appeal to lie to the SCA. Even if
I assume in the applicants’ favour that
there are prospects of success on appeal, the matter does not end there for
prospects
of success are not necessarily decisive in determining whether it is
in the interests of justice for an appeal to be entertained
directly by this
Court.
[18]
To that end, all other
relevant factors must be brought into consideration.
[11]
The applicants do not seek
a declaration that any of the provisions of the legislation dealing with the
solemnising or recording of
marriages is inconsistent with the Constitution, or
if any is, what the appropriate relief would be in that regard. Nor do they
address all the consequences that would flow from the recognition of such a
union or how it should be dissolved. Nor do they challenge
the legislation
dealing with the solemnising and recording of marriages or the legislation
dealing with the consequences and dissolution
of marriages. Nor do they claim
substantive relief directed at the need to regulate all the consequences of
same-sex relationships
and their dissolution. However, whether the claim as
formulated by the applicants is appropriate and sufficient to secure effective
relief for them if they were to succeed, is not a matter that need be decided in
this application. I am satisfied for reasons that
follow that, even if it is,
the application for leave to appeal directly to this Court should be
refused.
[12]
This appeal is likely to
raise complex and important questions of the legal conformity of our common law
and statutory rules of marriage
in the light of our Constitution and its
resultant jurisprudence. Marriage and its legal consequences sit at the heart
of the common
law of persons, family and succession and of the statutory scheme
of the Marriage Act. Moreover marriage touches on many other aspects
of law,
including labour law, insurance and
tax.
[19]
These issues are of
importance not only to the applicants and the gay and lesbian community but also
to society at large. While
considerations of saving costs, and of “an
early and definitive decision of the disputed
issues”
[20]
are in themselves
weighty, they should not oust the important need for the common law, read in the
light of the applicable statutes,
to develop coherently and harmoniously within
our constitutional context. The views of the SCA on matters that arise in the
appeal
are of considerable importance. The nature of the dispute raised by the
appeal is, as the High Court correctly held in issuing a
negative rule 18(2)
certificate, pre-eminently suited to be considered first by the
SCA.
[21]
In this regard, in
Amod
v Multilateral Motor Vehicle Accidents
Fund
[22]
this Court held
that:
“When a constitutional matter is one which turns on the direct application
of the Constitution and which does not involve the
development of the common
law, considerations of costs and time may make it desirable that the appeal be
brought directly to this
Court. But when the constitutional matter involves the
development of the common law, the position is different. The Supreme Court
of
Appeal has jurisdiction to develop the common law in all matters including
constitutional matters. Because of the breadth of its
jurisdiction and its
expertise in the common law, its views as to whether the common law should or
should not be developed in a ‘constitutional
matter’ are of
particular importance. Assuming, as Mr Omar contends, that this
Court’s jurisdiction to develop the
common law in constitutional matters
is no different to that of the Supreme Court of Appeal, it is a jurisdiction
which ought not
ordinarily to be exercised without the matter having first been
dealt with by the Supreme Court of Appeal.”
In my view,
the interests of justice require that this appeal be heard first by the
SCA.
The order
[13]
The applicants have urged
that should this Court refuse leave for a direct appeal, it should grant the
applicants leave to appeal
to the SCA. Such an order would be neither competent
nor necessary. The High Court has the power to grant leave to appeal against
its judgments and orders to the SCA. As observed earlier, such leave has
already been granted. Once the matter has been disposed
of by the SCA, it is,
of course, open to either party to approach this Court, if so advised, for leave
to appeal.
[14]
In my view this is not a
matter in which it would be appropriate to make any order as to
costs.
[15]
The application for leave
to appeal directly to this Court from the decision of Roux J in the Pretoria
High Court is refused.
Chaskalson CJ,
Langa DCJ, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O’Regan J and
Yacoob J all concur in the judgment of Moseneke
J.
For the Applicant: M. Van Den Berg,
Pretoria
For the Respondent: Adams and Adams, Hatfield
[1]
The respondents have since
abandoned the costs order made in their favour against the amicus curiae.
[2]
Act 25 of 1961.
[3]
Act 68 of 1997.
[4]
Section 10 of the
Constitution.
[5]
Section 9 of the
Constitution.
[6]
Section 9(3) of the
Constitution.
[7]
Act 59 of 1959.
[8]
Section 38 of the Constitution
provides:
“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;
(b) anyone acting on behalf of another person who cannot act in their own
name;
(c) anyone acting as a member of, or in the interest of, a group or class of
persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its
members.”
[9]
Section 173 of the Constitution provides:
“The Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own
process, and to develop the
common law, taking into account the interests of
justice.”
[10]
For this proposition the applicants place reliance on the case of
Islamic
Unity Convention v Independent Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (4) SA
294
(CC);
2002 (5) BCLR 433
(CC) at para 9-10 and 12.
[11]
Section 167(6) provides:
“National legislation or the rules of the Constitutional Court must allow
a person, when it is in the interests of justice
and with leave of the
Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other
court.”
[12]
Rule 18(6) provides:
“(a) If it appears to the court hearing the application . . .
that-
(i) the constitutional matter is one of substance on which a ruling by the Court
is desirable; and
(ii) the evidence in the proceedings is sufficient to enable the Court to deal
with and dispose of the matter without having to refer
the case back to the
court concerned for further evidence; and
(iii) there is a reasonable prospect that the Court will reverse or materially
alter the judgment if permission to bring the appeal
is
given,
such court shall certify on the application that in its opinion
(b) The certificate shall also indicate whether, in the opinion of the court
concerned, it is in the interests of justice for the
appeal to be brought
directly to the Constitutional
Court.”
[13]
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771(CC)
at para 8.
[14]
Rule 18 specifically limits
a direct appeal of this class to “a decision on a constitutional
matter”. Id at para 7.
[15]
Above n13 and
Member of
the Executive Council for Development Planning and Local Government, Gauteng v
Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
at para
32.
[16]
See
Carmichele v Minister
of Safety and Security and Another
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at paras 33-7.
[17]
See
National Coalition
for Gay and Lesbian Equality and Others v Minister of Justice and Others
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC);
National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000
(2) SA 1
(CC);
2000 (1) BCLR 39
(CC);
Satchwell v President of the RSA and
Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC);
Du Toit and Another v
Minister for Welfare and Population Development and Others
[2002] ZACC 20
;
2003 (2) SA 198
(CC);
2002 (10) BCLR 1006
(CC);
J and Another v Director General:
Department of Home Affairs and Others
[2003] ZACC 3
;
2003 (5) BCLR 463
(CC).
[18]
Fraser v Naude and
Others
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 7.
[19]
There are at least 44 Acts
of Parliament in which reference is made to ‘husband’ and/or
‘wife’ either in
the body of the Act or in the regulations to the
Act. These include the
South African Citizenship Act 88 of 1995
;
Prevention of
Family Violence Act 133 of 1993
; Sexual Offences Act 23 of 1957;
Insolvency Act
24 of 1936
; Child Care Act 74 of 1983; Children’s Act 33 of 1960;
Children’s Status Act 82 of 1987;
Divorce Act 70 of 1979
; Marriage Act 25
of 1961; Matrimonial Affairs Act 37 of 1953;
Matrimonial Property Act 88 of
1984
;
Recognition of Customary Marriages Act 120 of 1998
; Banks Act 94 of 1990;
Mutual Banks Act 124 of 1993
; Mental Health Act 18 of 1973; Income Tax Act 58 of
1962; Compensation for Occupational Injuries and Diseases Act 130 of 1993;
Deeds
Registries Act 47 of 1937
; Mining Titles Registration Act 16 of 1967; Civil
Proceedings Evidence Act 25 of 1965;
Criminal Procedure Act 51 of 1977
; Criminal
Law and the
Criminal Procedure Act Amendment
Act 39 of 1989;
Law of Evidence
Amendment Act 45 of 1988
; Merchant Shipping Act 57 of 1951; Friendly Societies
Act 25 of 1956; Government Employees Pension Law 1996; Railways and Harbours
Service Act 28 of 1912; Railways and Harbours Acts Amendment Act 15 of 1956;
Black Administration Act 38 of 1927; *South African
Passports and Travel
Documents Act 4 of 1994; *Companies Act 61 of 1973; *Supreme Court Act 59 of
1959; *
Administration of Estates Act 66 of 1965
; *National Parks Act 57 of 1976;
*Mediation in Certain Divorce Matters Act 24 of 1987; *Health Act 63 of 1977;
*Value-Added Tax Act
89 of 1991; *Human Tissue Act 65 of 1983; *
South African
Police Service Act 68 of 1995
; *
National Road Traffic Act 93 of 1996
; *Housing
Development Scheme for Retired Persons Act 65 of 1988; *
South African Reserve
Bank Act 90 of 1989
; *Black Communities Development Act 4 of 1984; *Mining
Titles Registration Act 16 of 1967. The Acts marked with an asterisk contain
references to ‘husband’ and/or ‘wife’ in their
regulations only.
[20]
See
Member of the
Executive Council for Development Planning and Local Government in the
Provincial Government of Gauteng v Democratic
Party and Others
[1998] ZACC 9
;
1998 (4) SA
1157
(CC);
1998 (7) BCLR 855
(CC) at para 33.
[21]
Id at para 31.
[22]
[1998] ZACC 11
;
1998 (4) SA 753
(CC);
1998(10) BCLR 1207 (CC) at para 33.

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