Fourie and Another v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: Farlam JA, Cameron JA, Mthiyane JA, Van Heerden JA and Ponnan AJA
• Judgment Date: 30 November 2004
• Citation: 2005 (3) SA 429 (SCA)
• Docket Number: 232/2003
• Hearing Date: 23 August 2004
• Counsel: P Oosthuizen SC for the appellants. M N S Sithole SC (with him M D Mohlamonyane) for the respondents. D I Berger and F Kathree for the amicus curiae.
• Court: Supreme Court of Appeal

Cameron JA:

[1] I am indebted to my Colleague Farlam JA for the benefit of reading his judgment. On the main question, the development of the common J

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law, we agree. We differ in our approach to one aspect of the Marriage Act 25 of 1961, and on whether the order should be suspended. A In view of this and other differences I propose briefly to set out my reasons for allowing the appeal, without the order of suspension Farlam JA proposes.

[2] The appellants are two adult persons who on the undisputed B evidence love each other. They feel and have deliberately expressed an exclusive commitment to each other for life. The question is whether the common law of this country allows them to marry. That question is controversial because they are of the same sex. Until now, marriage as a social and legal institution has been understood to be reserved for C 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 this is not so. They wish to be married, they testify 'for the very reason that the bond between us is so genuine and serious', [1] and because not being able to D marry presents a host of practical and legal impediments to their shared life.

[3] They raise no statutory challenge. Instead, their founding affidavit asks the Court to grant them relief by invoking its jurisdiction to develop the common law in accordance with the Constitution of the Republic of South Africa Act 108 of 1996. In the E 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 costs of the respondents (the Minister and Director-General of Home Affairs). (The respondents later abandoned the costs order against F the amicus.)

[4] The Constitution grants inherent 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 G the Bill of Rights to a natural or juristic person a court, 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' (though it may develop the rules of the common law to limit the right in accordance with the limitations provision in H s 36(1)). It also provides that when developing the common law, a court 'must promote the spirit, purport and objects of the Bill of Rights' (s 39(2)).

[5] Taken together, 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. I Doing so is not

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a choice. Where the common law is deficient, the courts are under a general obligation to develop it A appropriately. [2]

[6] This provides the background to our task in the appeal. At its centre is the fact that our Constitution expressly enshrines equality on the ground of sexual orientation. [3] When this took effect at the birth of our democracy on 27 April 1994, [4] it was unique: at the time no other B country's founding document outlawed unfair discrimination on the express ground of sexual orientation. Its inclusion in the list of conditions specially protected against unfair discrimination was both novel and bold. [5] This is important to emphasise, not because our decision requires boldness, but because the reasons for including sexual orientation in the Constitution illuminate our path. C

[7] Through more than 300 years, the primary criterion for civic and social subordination in South Africa was race. On the basis of their skin colour, black women and men were subjected to a host of systematic indignities and exclusions. These included denial of voting rights and citizenship. What was unique about apartheid was not that it D involved racial humiliation and disadvantage - for recent European history has afforded more obliterating realisations of racism - but the fact that its iniquities were enshrined in law. More than anywhere else, apartheid enacted racism through minute elaboration in systematised legal regulation. As a consequence, the dogma of race infected not only our national life but the practice E of law and our courts' jurisprudence at every level.

[8] Yet despite this rank history, the 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 F

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claims through law. This decision embodied a paradox. Though apartheid used legal means to exclude the majority of A this country's people from civic and material justice, the law - embodied in a detailed founding document - would now form the basis for our national aspirations. This paradox lies at the core of our national project - that we came from oppression by law, but resolved to seek our future, free from oppression, in regulation by law. Our constitutional history thus involves B

'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 founders committed themselves to a conception of our nationhood that was both very wide and very inclusive. In this lay a further paradox: for the C very extent of past legal exclusion and denigration now determined the generosity of the protection that the Constitution offered. It was because the majority of South Africans had experienced the humiliating legal effect of repressive colonial conceptions of race and gender that they determined that henceforth the role of the law would be different D for all South Africans. Having themselves experienced the indignity and pain of legally regulated subordination, and the injustice of exclusion and humiliation through law, the majority committed this country to particularly generous constitutional protection for all South Africans. E

[10] These paradoxes illuminate 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 orientation was not paramount in the scheme of historical injustice, it formed part of it, and the negotiating founders deliberately committed our nation to a course that disavowed all forms F of legalised oppression and injustice. [7] Instead of selective remediation of the badges of repression and dishonour, all criteria of unfair discrimination were renounced in favour of an ample commitment to equality under the law. The national project of liberation would not be mean-spirited and narrow but would encompass G all bases of unjust denigration. Non-discrimination on the ground of sexual orientation was to be a part - perhaps a relatively small part, but an integral part - of the greater project of racial reconciliation and gender and social justice through law to which the Constitution committed us. H

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[11] The fact that homosexuality was in 1994 and still is a controversial issue in Africa, as elsewhere in the world, did not A deflect from this commitment. The equality clause went further than elsewhere in Africa; but this was because the legal subordination imposed by colonialism and apartheid 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 B protections.

[12] This setting explains the 'strides' [8] that our equality jurisprudence has taken in respect of gays and lesbians in the last ten years. Consensual sexual conduct between adults in private has been freed from criminal restriction, not only because sexual orientation is specifically listed in the Bill of Rights, but on wider grounds of C dignity and privacy. [9] Same-sex partners have been held to be entitled to access to statutory health insurance schemes. [10] The right of permanent same-sex partners to equal spousal benefits provided in legislation has been asserted. [11] The protection and nurturance same-sex partners can jointly offer children in need of adoption has D 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 rights of same-sex partners to beneficial immigrant status has been established. [14] And this Court has developed the common law by extending the spouse's action for loss of support to E partners in permanent same-sex life relationships. [15]

[13] The importance of these cases lies not merely in what they decided, but in the far-reaching doctrines of dignity, equality and inclusive moral citizenship [16] they articulate. They establish the following: F

(a)

Gays and lesbians are a permanent minority in society which in the past has suffered from patterns of disadvantage. As a minority they

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are unable on their own to use political power to secure legislative advantages, and are exclusively reliant on the Bill A of Rights for their protection. [17]

(b)

The impact of discrimination on them has been severe, affecting their dignity, personhood and identity at many levels. [18]

(c)

'The sting of past and continuing discrimination against both gays and lesbians'...