Fourie and Another v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Citation: 2005 (3) SA 429 (SCA)

Fourie and Another v Minister of Home Affairs and Others
2005 (3) SA 429 (SCA)

2005 (3) SA p429

Citation	2005 (3) SA 429 (SCA)
Case No	232/2003
Court	Supreme Court of Appeal
Judge	Farlam JA, Cameron JA, Mthiyane JA, Van Heerden JA and Ponnan AJA
Heard	August 23, 2004
Judgment	November 30, 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.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to equality — Right to equality before law and not to be unfairly discriminated against — Right not to be discriminated against on grounds of sexual orientation — Whether common-law concept of marriage to be developed to embrace same-sex life C partnerships — Common-law definition of marriage depriving committed same-sex couples of choice of getting married — Such exclusion unconstitutional — Common-law concept of marriage developed to embrace same-sex partners by defining 'marriage' as 'the union of two persons to the exclusion of all others for life' — Constitution, ss 8(3), 9(3), 39(2) and D 173 — Not appropriate to suspend order — Intended marriage between two persons of same sex capable of recognition, provided formalities in Marriage Act 25 of 1967 complied with.

Husband and wife — Marriage — Definition of — Marriage between persons of same sex — Common-law definition of marriage depriving committed same-sex couples of choice of getting married — Such exclusion unconstitutional — Common-law concept of marriage E developed to embrace same-sex partners by defining 'marriage' as 'the union of two persons to the exclusion of all others for life' — Constitution, ss 8(3), 9(3), 39(2) and 173 — Intended marriage between two persons of same sex capable of recognition, provided formalities in Marriage Act 25 of 1967 complied with. F

Constitutional law — Common law — Development of — Duty of Courts to develop common law in accordance with 'spirit, purport and objects of the Bill of Rights' as intended in s 39(2) of Constitution — Suspension of order developing common law — Order pursuant to such incremental development of common law should rarely, if ever, be subject to suspension — Order developing common-law concept of G marriage to embrace same-sex partners by defining 'marriage' as 'the union of two persons to the exclusion of all others for life' not suspended.

Headnote : Kopnota

The instant appeal dealt with the question whether two adults of the same sex who loved each other and who had deliberately expressed an H exclusive commitment to one another for life ought to be allowed to marry. The appellants, both women, joined by the Lesbian and Gay Equality Project as amicus curiae, had approached a Division of the High Court for orders (a) declaring that their marriage be recognised as a legally valid marriage under the Marriage Act 25 of 1961, provided that it complied with the formalities set out I in the Act; and (b) directing the respondents to register their marriage in terms of the provisions of the Marriage Act and the Identification Act 68 of 1997. They wished to be married, not only because of the special bond between them, but also because their inability to marry presented a host of practical and legal impediments to their shared life. They raised no statutory challenge, but instead asked the Court to develop J

2005 (3) SA p430

the common law in accordance with the Constitution of the Republic of South Africa Act 108 of 1996. The A Minister and Director-General of Home Affairs opposed the application, which was dismissed by the High Court on the ground that the relief sought was incompatible with the Marriage Act. In an appeal to the Supreme Court of Appeal,

Held, that ss 8(3), 36(1), 39(2) and 173 of the Constitution obliged the Courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Doing so B was not a choice: where the common law was deficient, the Courts were under a general obligation to develop it appropriately. (Paragraphs [4] and [5] at 435F/G - 436A.)

Held, further, that the constitutional prohibition of discrimination on the ground of sexual orientation was both novel and bold. (Paragraph [6] at 436A/B - C.) Oppression on the ground of C sexual orientation formed part of the scheme of historical injustice, and the negotiating founders had deliberately committed South Africa to a course that disavowed all forms of legalised oppression and injustice. All criteria of unfair discrimination had to be renounced in favour of an ample commitment to equality under the law. The national project of liberation had to encompass all bases of unjust denigration, D and non-discrimination on the ground of sexual orientation was a part of the greater project of racial reconciliation and gender and social justice through law to which South Africans were committed by the Constitution. (Paragraph [10] at 437F - H.)

Held, further, that South African equality jurisprudence had in the past ten years taken many strides in respect of gays and lesbians. Consensual sexual conduct between adults in private had been E freed from criminal restriction; same-sex partners had been allowed access to statutory health insurance schemes; their right to equal spousal benefits had been asserted; their right to adopt had been put on an equal footing to that of heterosexual couples; the right of a same-sex partner to become the legitimate parent of a child conceived by artificial insemination had been confirmed; the equal right of F same-sex partners to beneficial immigrant status had been established; and the spouse's action for loss of support had been extended to partners in permanent same-sex life relationships. (Paragraph [12] at 438B/C - E/F.)

Held, further, that these strides in our equality jurisprudence had to be seen as part of the growing acceptance of difference in an increasingly open and pluralistic South Africa that is G vital to the society the Constitution contemplated. (Paragraph [13] at 440C.)

Held, further, that the current common-law definition of marriage deprived committed same-sex couples of the option of getting married, thus denying gays and lesbians who wished to solemnise their union a host of benefits, protections and duties. More deeply, the exclusionary definition of marriage injured gays and lesbians because H it implied a judgment on them. It suggested not only that their relationships and commitments and loving bonds were inferior, but that they themselves could never be fully part of the community of moral equals that the Constitution promised to create for all. (Paragraph [15] at 440G - 441B/C.) I

Held, further, that it was clear from of these post-Constitution cases that this exclusion undermined the values underlying an open and democratic society based on freedom and equality that underpinned the Constitution. In the absence of justification, it constituted unfair discrimination that violated the equality and other guarantees of the Bill of Rights. (Paragraph [16] at 441C.) J

2005 (3) SA p431

Held, further, that the Constitution and ten years of development under it suggested that the capacity for commitment, and A the ability to love and nurture and honour and sustain, transcended the incidental fact of sexual orientation. (Paragraph [19] at 442F.)

Held, further, that the finding of the Court a quo that the provisions of the Marriage Act were 'peremptory' and constituted an obstacle to granting the appellants any relief was wrong. The Marriage Act had been enacted on the assumption that B the common-law definition of marriage applied only to opposite-sex marriages, and this definition underlay the statute. Since the Court had developed it to encompass same-sex marriages, the impediment the statute presented to the broader relief sought by the appellants was only partial. This was because s 30(1) of the Marriage Act prescribed a default marriage formula. (Paragraphs [26] and [27] at 444E - 445B.) C

Held, further, that the Court could not substitute or read in words to change the marriage formula to bring it in line with the common law as extended by the Court since doing so would go radically further than the process of statutory interpretation could appropriately countenance and since the words in question were not susceptible to the suggested interpretative process. (Paragraph [28] at 445B - C/D.) D

Held, further, that neither this decision nor the ministerial grant of such a formula would in any way impinge on religious freedom. The extension of the common-law definition of marriage did not compel any religious denomination or minister of religion to approve or perform same-sex marriages. The development of the common law in the present appeal would take practical effect only once the Minister had approved appropriate religious formulae. E Religious orders for whose use such formulae were approved would at their option be able to perform gay and lesbian marriages. (Paragraphs [36] and [37] at 447F - H/I.)

Held, further, as to whether the order in the present case had to be suspended, that the suggested suspension was neither appropriate nor in keeping with principle, justice, or the role of the Courts in developing the common law. (Paragraph [38] at 448B.) Such F development entailed a simultaneously creative and declaratory function in which the Court perfected a process of incremental legal development that the Constitution had already ordained. A Court that was engaged in the development of the common law was not engaging in a legislative process or intruding on the legislative domain. (Paragraphs [39] - [40] at 448C - F.) G

Held, further, that the equality and dignity provisions of the Bill of Rights required the Court to develop...