Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: Langa ACJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Yacoob J and Van Der Westhuizen J
• Judgment Date: 01 December 2005
• Citation: 2006 (1) SA 524 (CC)
• Docket Number: CCT 60/04 and CCT 10/05
• Hearing Date: 17 May 2005
• Counsel: M T K Moerane SC (with S Nthai) for the applicants. P Oosthuizen (with T Kathri) for the respondents. J J Smyth QC for the first and second Amici Curiae. G C Pretorius SC (with D M Achtzehn, P G Seleka and J R Bauer) for the third Amicus Curiae. D I Berger SC (with F Kathree) for the applicants. M Donen SC for the respondents.
• Court: Constitutional Court

Sachs J:

Intoduction I

[1] Finding themselves strongly attracted to each other, two people went out regularly and eventually decided to set up home together. After being acknowledged by their friends as a couple for more than a decade, they decided that the time had come to get public recognition and registration of their relationship, and formally to embrace the rights and responsibilities J

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they felt should flow from and attach to it. Like many persons in their situation, they wanted to get married. A There was one impediment. They are both women.

[2] Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys are the applicants in the first of two cases [1] that were set down for hearing on the same day in this Court. Their complaint has been that the law excludes them from publicly celebrating B their love and commitment to each other in marriage. Far from enabling them to regularise their union, it shuts them out, unfairly and unconstitutionally, they claim.

[3] They contend that the exclusion comes from the common-law definition which states that marriage in South Africa is 'a union of one man with one woman, to the exclusion, while it lasts, of all C others'. [2] The common law is not self-enforcing, and in order for such a union to be formalised and have legal effect, the provisions of the Marriage Act [3] have to be invoked. This, as contended for in the second case, [4] is where the further level of exclusion operates. The Marriage Act provides that a minister of D religion who is designated as a marriage officer may follow the marriage formula usually observed by the religion concerned. [5] In terms of s 30(1) other marriage officers must put to each of the parties the following question:

"'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, E 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 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."' F

(My emphasis.) The reference to wife (or husband) is said to exclude same-sex couples. It was not disputed by any of the parties that neither the common law nor statute provide for any legal mechanism in terms of which Ms Fourie and Ms Bonthuys and other same-sex couples could marry. G

[4] In the pre-democratic era same-sex unions were not only denied any form of legal protection, they were regarded as immoral and their

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consummation by men could attract imprisonment. [6] Since the interim Constitution A came into force in 1994, however, the Bill of Rights has dramatically altered the situation. Section 9(1) of the Constitution now reads:

'Everyone is equal before the law and has the right to equal protection and benefit of the law.' B

Section 9(3) of the Constitution expressly prohibits unfair discrimination on the grounds of sexual orientation. It reads:

'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, C belief, culture, language and birth.'

(My emphasis.)

[5] The matter before us accordingly raises the question: does the fact that no provision is made for the applicants, and all those in like situation, to marry each other, amount to denial of equal protection of the law and unfair discrimination by the State against D them because of their sexual orientation? And if it does, what is the appropriate remedy that this Court should order?

History of the litigation

The first challenge: the common-law definition of marriage (the Fourie case) E

[6] Pursuant to their desire to marry and thereby acquire the status, benefits and responsibilities which traditionally flow from marriage between heterosexual couples, the applicants went to the Pretoria High Court. They asked for an order declaring that the law recognises their right to marry, and a mandamus ordering the Minister of Home Affairs and the Director-General to register their F marriage in terms of the Marriage Act. [7] It will be noted that they did not mount a challenge either to the common-law definition of marriage or to the constitutionality of s 30(1) of the Marriage Act.

[7] Roux J in the High Court [8] attempted to 'wring out' of the parties a clear description of the G constitutional issue in the matter. The applicants articulated the issue 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 25 of 1961 provided that such marriages comply with the formality requisites set out in the H Act.'

Roux J concluded that the marriage formula in s 30(1) of the Marriage Act, which contemplates marriage between a male and a female and no

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other, is peremptory. Consequently the applicants could not be married as required by the law. To compel the Minister of Home Affairs A to register the 'marriage' between the applicants, he added, would constitute a request to do what is unlawful. An omission to challenge the constitutionality of the provisions of the Marriage Act accordingly constituted an obstacle to granting the relief sought. On this basis he dismissed the application. B

[8] The applicants then applied to the Pretoria High Court for leave to appeal to this Court, alternatively, to the Supreme Court of Appeal (SCA) against his judgment. Roux J having in the interim retired, the application was heard by Mynhardt J, who refused to grant a positive certificate, but [9] did grant them C leave to appeal to the SCA. The applicants then approached the Constitutional Court for leave to appeal directly to it against the judgment and order of the High Court.

[9] This Court refused the application on the ground that the interests of justice required that the appeal first be heard by the SCA. Moseneke J [10] said that in their papers the D applicants did not seek a declaration that any of the provisions of the legislation dealing with solemnising or recording of marriages was inconsistent with the Constitution, or if any was, what the appropriate relief would be in that regard. The applicants also omitted to address all the consequences that would flow from the recognition of such a union or how it should be dissolved. The appeal was likely to raise E 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. Moseneke J pointed out that

'(m)arriage and its legal consequences sit at the heart of the common law of persons, family and succession and of the statutory F scheme of the Marriage Act. Moreover marriage touches on many other aspects of law, including labour law, insurance and tax. These issues are of importance not only to the applicants and the gay and lesbian community but also to society at large'. [11]

[10] Although considerations of saving costs and of an early and G definitive decision of the disputed issues were 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 judgment emphasised that the views of the SCA on the matters that arose were of considerable importance. The nature of the dispute raised by the appeal was, as the High Court had correctly held in issuing a negative Rule H 18(2) certificate, pre-eminently suited to be considered first by the SCA. The application for leave to appeal directly to this Court was accordingly refused.

Sachs J

[11] The result was that the applicants pursued their appeal in the SCA. [12] They did so on the same basis on A which they had litigated in the Pretoria High Court, namely, that the common law needed to be developed, without linking this to a challenge to the Marriage Act.

[12] The SCA upheld the appeal in part. Two separate judgments were delivered. All five Judges held that the exclusion of same-sex couples from the common-law definition of marriage constituted unfair B discrimination against them. The reasons for coming to this conclusion diverged in certain significant respects, however, resulting in different approaches being taken as to the order to be made.

[13] Writing for the majority, Cameron JA [13] held that the Constitution grants powers C to the Constitutional Court, the SCA and the High Courts to develop the common law, taking into account the interests of justice. [14] The Bill of Rights provides [15] that when applying a provision of 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 D 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 s 36(1). It also provides that when developing the common law the Court must promote the spirit, purport and objects of the Bill of Rights. [16] Taken together, these provisions E 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 choice. Where the common law is deficient, the courts are under a general obligation to develop it appropriately. This provided the background to the task in the appeal. F

[14] Cameron JA went on to state that...