Fourie and Another v Minister of Home Affairs and Another (Supreme Court of Appeal)/Farlam JA

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Fourie and Another v Minister of Home Affairs and Another
by Justice Ian Farlam, in the Supreme Court of Appeal of South Africa
Partially dissenting judgment of Justice Farlam

Farlam JA:


Introduction

[50] This is an appeal against a judgment of Roux J, sitting in the Pretoria High Court, who dismissed with costs an application brought by the appellants against the respondents, the Minister of Home Affairs and the Director General: Home Affairs, for orders (a) declaring that the marriage between 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 respondents 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 two 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 supporting affidavit by the second appellant, that the purpose of the application was to obtain a declaratory order that the intended marriage between the appellants be recognised as legally valid. She stated further that she and the second appellant had approached a magistrate at one stage and asked her if she would be prepared to solemnize a marriage between them. The magistrate's reply was that she was 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 record it in the marriage register. The first appellant also stated that she and the second appellant had learnt 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 appellant, no bank was prepared to allow her and the second appellant to open a joint bank account and that they also could not obtain a joint mortgage 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 and the second appellant could not be discriminated against on the ground 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 and 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' opposing affidavits were filed the appellants caused a notice 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 constitutional 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.’

The purpose of the Rule is to enable parties interested in a constitutional issue to seek to be admitted as amici curiae in the case in which the issue is raised so that they can advance submissions in regard thereto. As a result of the appellants' notice to the registrar in terms of Rule 16A a voluntary association known as The Lesbian and Gay Equality Project was allowed to intervene as amicus curiae in the case and submissions were made on its behalf at the hearing 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 Constitutional Court decision In re certain amicus curiae applications: Minister of Health and Others v The Treatment Action Campaign and Others,[1] 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 been set down for hearing in this Court the Lesbian and Gay Equality Project once again sought to be admitted as amicus curiae in the matter. Neither the appellants nor the respondents opposed the application and it was granted. The amicus submitted written arguments before the case was argued and Mr Berger and Ms Kathree appeared at the hearing and made oral submissions.


Evidence for respondents

[57] The respondents caused 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 law as it stands. It was also conceded that the Department of Home Affairs is not prepared to register the proposed marriage between the appellants. (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 respondents did not deny the first appellant's statements regarding the practical difficulties the appellants experience in consequence of the fact that they are not married but contented themselves with putting the appellants to the proof thereof.

[58] The respondents ‘admitted’ that the common law prohibits members of the same sex from entering into a valid marriage relationship. They denied that the common law has developed to 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 may not be discriminated against on the basis of their sexual orientation and that their human dignity may not be infringed and that they are, as it was put, ‘living in some sort of consortium with each other’, the respondents denied that the appellants are being discriminated against or that they are, as it was put, ‘suffering indignity because their intended marriage will not be recognised’. The respondents also contended that the appellants had not provided any factual basis for the allegation that they were being discriminated against. 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 the application Roux J, after pointing out that the appellants 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:

‘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 interested person, ‘to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person 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:

“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 Roux J had in the interim retired, the application came before Mynhardt J, who refused to grant the appellants a positive certificate in terms of Rule 18 of the Constitutional Court Rules 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 against the judgment and order of Roux J. This application was refused on the ground that the interests of justice required that the appeal be heard first by this Court. The judgment of the Constitutional Court, which was delivered by Moseneke J, has been reported: see Fourie and Another v Minister of Home Affairs and Another[2].


Relevant statutory provisions

[63] Before the issues arising for decision 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 Identification 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 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 all 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.

(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 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―

(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 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 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 the extracts from his judgment set out in para [60].)

(c) The Identification Act

[66] Sections 3, 8(e) and 13 of the Identification 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:

(1)   Does the common law definition of marriage which precludes two persons of the same sex from marrying one another discriminate against the appellants?
(2)   If so, is such discrimination unfair?
(3)   Does it infringe their human dignity?
(4)   If there is unfair discrimination, and/or an infringement of human dignity, should this court give the appellants the remedy they seek, namely a development of the common law definition of marriage so as to allow same sex marriages?

To answer that question it will be necessary to consider:

(5)   whether such development would constitute an incremental change required to promote the spirit, 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 necessitate consideration of the question:

what is the essence of the concept 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:

(7)   Can the appellants be granted the relief they seek in the absence of a prayer for declarations that the Marriage Act and the Identification Act are inconsistent with the Constitution? And
(8)   Can and should any order 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 something about the history of the institution of marriage in our law.

[69] It is convenient for our purposes to begin with the marriage law of the Romans during the period of the classical Roman law (the first two and a half centuries of the Christian era).

As Professor Max Kaser says:[3]

‘[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 existence was a purely private one. No State official was involved. The marriage did not have to be registered: indeed no public record of any kind was required. No religious or ecclesiastical rite was essential, even after Christianity became the official religion of the Roman Empire in 313 AD. In fact no prescribed form was required. All that was necessary was the reciprocally expressed 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 controlled by the Church after the disintegration of the Roman Empire in the West, what Bryce calls ‘the fundamental conception of marriage as a tie formed solely by consent, and needing the intervention neither of State nor of Church’[4] remained the legal position until the middle of the sixteenth century. The Church's control over marriage was manifested in the fact that, from the tenth century, the Church's tribunals had exclusive jurisdiction in regard to questions relating to marriage. As a result there was a uniform law of marriage applied in Western Europe. Marriage, 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 blessing; what was referred to as the benedictio ecclesiae (the blessing of the church). In some areas 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 marriages 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, which often gave rise to great scandal, were thus valid. 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 marriages had been held valid, though blameworthy, declared that for the future all should be deemed invalid unless banns were published and the parties declared their consent before a priest and at least two witnesses. The decrees of the Council of Trent did not become law in the Northern Netherlands but the principles of the Decretum Tametsi were adopted in the various provinces thereof. The Political Ordinance of 1 April 1580, which was enacted by the States of Holland, provided in section 3 for banns to be published, on three successive Sundays or market-days, in church or in the council chamber of the city or town where the intending spouses resided, and for their marriage to be solemnised by the magistrate or minister of religion ‘according to the forms in use in the churches or which shall have been prescribed to the magistrates for that purpose by the States’.[5] ‘Marriages’ not solemnised in accordance with section 3 were invalid. Similar legislation was enacted in the other provinces of the Northern Netherlands.[6]

[72] The provisions of the Political Ordinance on the point were received as law at the Cape when it was colonised by the Dutch East India Company.[7] Despite the reception of the Political Ordinance at the Cape it appears 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.[8]

[73] As far as I have been able to discover, Holland was the first European jurisdiction to permit civil marriages. In practice persons who chose to be married by magistrates were those who were not of the Reformed religion[9] or, ‘who, being estranged from the orthodox church, hated ecclesiastical benediction’.[10]

[74] Marriage law was secularised at the advent of the Reformation as the Protestant reformers did not regard marriage as a sacrament. Brissaud refers to what he calls ‘this remarkable evolution’ by which marriage was completely secularized.[11] The point of departure for this, he says, ‘was in a theological, legal theory of which Saint Thomas Aquinas was perhaps the first to give the formula. According to that writer, marriage could be regarded at one and the same time: 1st. As a contract of natural law (a borrowing from the Roman writings, which understood by this the law which is given to man and to animals). 2d. The civil contract, that is to say, 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 element and which could not exist without the latter. The civil marriage and the religious marriage are separated in this analysis, whereas in former times they were not distinguished. These speculations, which had no very great bearing so long as they remained shut up within the Schools, were propagated during the sixteenth century by virtue 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 order to make of them a weapon against the Church. From this they came to the conclusion that marriage ought to be subjected to the Church in so far as it was a sacrament, to the State in so far as it was a civil contract.’

This development culminated, as far as France was concerned, in the adoption in the constitution of 1791 of the principle that ‘the law only considered marriage 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 liberty to respect its doctrines, but the State had no power to bind itself to impose them upon all citizens without affecting their liberty of conscience. The decree of September 20, 1792, organized the certificates of civil status and marriage; the latter must thenceforth be executed before a municipal official in order to be recognized by the State.’[12]

[75] The principle that marriages had to be solemnised 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 of what was now called the Kingdom of Holland in 1809 when the Code Napoleon, with adaptations, was given the force of law by King Louis Napoleon.

[76] During the period between the two British occupations of the Cape, when the Cape was under the control of the Batavian Republic, Commissioner General De Mist introduced the secular marriage before landdrost and heemraden in the country 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 David 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’.[13]

[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 establishment of a marriage register and the appointment of civil marriage officers where there was ‘not a sufficient number of … ministers [of the Christian religion] to afford convenient facilities for marriage’. By the Marriage Act 16 of 1860 the resident magistrates were made marriage officers and the Governor was empowered to appoint marriage officers for Jews and Muslims. Similar legislation was passed in the other colonies which eventually made up the Union of South Africa.

[78] The Marriage Act 25 of 1961 consolidated the laws governing the formalities of marriage and the appointment of marriage officers and repealed some 47 Union and pre-Union statutes from the Marriage Order in Council of 7 September 1838 onwards. It is clear from a study of the provisions of the Marriage Act that it builds on the foundations laid by the Council of Trent in 1563 and by the States of Holland in 1580. It is solely concerned with marriage as a secular institution. Although it does not go as far as the French did in 1791 and 1792 and the Dutch legislature thereafter in requiring all marriages to be solemnized by a civil official and not allowing clerics to solemnize them, it clearly constitutes clerics who are marriage officers State officials for the purpose of bringing into being a marriage relationship between the intending spouses which is recognised by the State.

[79] Indeed it is instructive to note 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 with the history of the law of marriage because it throws light on a point of cardinal 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 concerned. Even though clerics are appointed marriage officers, when they solemnise marriages they do so in a twofold capacity: first as clerics, giving the benedictio ecclesiae to 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 secular legal bond recognised by the State.

[81] But as s 31 of the Marriage Act makes clear, clerics who are marriage officers are not obliged to marry couples if to do so would be against the tenets of their religion. 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 divorced 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 denominations, clerics belonging 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 institution of marriage which the law regulates and the religious institution of marriage which is recognised in the Act.

[82] As I have said, we are concerned in this case only with the secular institution. Nothing that we say is intended to deal with the religious institution. Indeed it would be inappropriate and improper for judges in a secular state to do otherwise.


Does the common law definition discriminate against homosexual persons?

[83] Against that background I turn to the question whether the common law definition of marriage discriminates unfairly against homosexual persons.

What may be called the common law definition of marriage was stated as follows by Innes CJ in Mashia Ebrahim v Mahomed Essop:[14]

‘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).[15]

[84] As to what is meant by ‘a union’ in that definition it is necessary to have regard to the definition of marriage attributed to the Roman jurist Modestinus, who flourished in the first half of the third century, and the definition 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’.[16]

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’).[17]

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 Affairs[18] used the expression consortium omnis vitae in referring to the ‘physical, moral and spiritual community of life’ created by marriage.

A useful expanded paraphrase 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:[19]

‘the consent whereby ariseth that conjugal society, which may have the conjunction of bodies as well as of minds, as the general end of the institution 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 are married. Mr Sithole, for the respondents, did not dispute this. It is clear therefore that our law, in terms of the common law definition 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 and benefit of the law, while s 9(3) lists among the proscribed grounds of discrimination sexual orientation. Homosexual persons are not permitted in terms of the common law definition to marry each other, however strong their yearning to establish a conjugal society of the kind described. As a result they are debarred from enjoying the protection and benefit of the law on the ground of their sexual orientation. This clearly constitutes discrimination within the meaning of s 9 of the Constitution.

[87] Mr Sithole contended that this conclusion is not correct. He argued that the common law definition does not 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 Relations; Attorney-General of Canada et al., Interveners.[20]

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 expressly rejected by Ackermann J in the Home Affairs case[21] 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.)

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 establish the fairness of the discrimination. Instead they contended that there was differentiation in this case 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 application 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 dispense with certain pre-conditions in authorising the issue of an immigration permit to the foreign spouse of a person permanently and legally resident in South Africa upon the application of such spouse, and held that the omission from the subsection after the word ‘spouse’ of the words ‘or partner in a permanent same-sex relationship’ was inconsistent with the Constitution. It held further that the subsection should be read as though the words omitted appeared therein after the word ‘spouse’.

[91] In reaching that conclusion the Constitutional Court held that the total exclusion of homosexual persons from the provisions of the subsection constituted unfair discrimination. It also held that, for substantially the same reasons as those set out in its judgment in relation to unfair discrimination, s 25 (5) ‘simultaneously constitutes a severe limitation on the s 10 right to dignity enjoyed by … gays and lesbians’ who are permanently resident in the Republic and who are in permanent same-sex life partnerships with foreign nationals.

[92] The reasoning leading up to that 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;
(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 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 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 clearly applies here. The effect of the common law prohibition of same-sex marriages is clearly unfair because it prevents parties to same-sex permanent relationships, who are as capable as heterosexual spouses of establishing a consortium omnis vitae, of constituting a family and of establishing, 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 given in the passage cited from the House Affairs case that the common law definition of marriage not only gives rise to an infringement of the appellants' constitutional right not to be the victims of unfair discrimination in terms of s 9 of the Constitution but also to their right to human dignity in terms of s 10.


Justifiable limitation under s 36

[95] It is not suggested by the respondents that the common law definition of marriage in so far as it prevents homosexual persons from entering into same sex marriages constitutes a justifiable limitation on the appellants' rights under ss 9 and 10 of the Constitution. In my view, there would be no merit in any such suggestion.


Remedy

[96] It is now necessary to consider what remedy, if any, should be given to the appellants. The respondents contended that the court a quo correctly dismissed the application for the reasons given in the judgment which I have summarized in paras [59] and [60] above. They laid great stress on the point, which had found favour with the court a quo, that, as the appellants had not attacked the validity of those provisions of the Marriage Act which appeared to place a legislative imprimatur on the common law definition, the application could not succeed.

[97] The respondents did not suggest that the appellants should in addition have sought a declaration that the Identification Act 68 of 1997 is inconsistent with the Constitution (as Moseneke J suggested may be the position[22]). The attitude adopted by the respondents in this regard was, in my view, entirely correct because the provision in the Identification Act which deals with the registration of marriages (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 marriage formula set forth in s 30(1) of the Marriage Act does not constitute 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.

[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 notice of motion, which spoke of the marriage of the parties. It is clear however, from the founding affidavit, which I have 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 registrable under the Marriage Act and the Identification Act. The respondents' contention that the prayers in the notice of motion indicate that the appellants regarded themselves as married and considered that all they needed from the court 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 are at issue, it is in any event inappropriate to adopt an overly technical attitude to the relief sought by an applicant. Holding, as I do, that the application of the common law definition of marriage subjects the appellants to infringements of their rights under ss 9 and 10 of the Constitution, I must conclude that this is an instance where the common law deviates from the spirit, purport and objects of the Bill of Rights and it should accordingly be developed, if this is possible and appropriate, so as to remove the deviation.

[101] As the Constitutional Court held in Carmichele v Minister of Safety and Security,[23] where the common law is deficient as regards the spirit, purport and objects of the Bill of Rights in terms of s 39(2) of the Constitution, the Courts are under a general obligation to develop the common law appropriately. The Constitutional Court pointed out[24] that ‘in exercising their powers to develop the common law, Judges should be mindful of the fact that the major engine for law reform should be the Legislature 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,[25] 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.’

[102] In Du Plessis v Road Accident Fund[26] that this Court extended the action for loss of support to partners in a same-sex permanent life relationship similar in other respects to marriage, who had a contractual duty to support one another. Cloete JA said[27] that this extension would be ‘an incremental step to ensure that the common law accords with the dynamic and evolving fabric of our society as reflected in the Constitution, recent legislation and judicial pronouncements.’


Would the extension of the common law definition of marriage to allow persons of the same sex to marry constitute an incremental step or is the problem one more appropriately 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 require a fundamental rewriting of important aspects of what can be described as the essence of marriage. He incorporated in his argument portion of the submissions advanced by Counsel for the Attorney General of Canada in a matter heard in November 2001 in the Ontario Superior Court of Justice, Divisional Court,[28] in which the divisional court declared the common law definition of marriage recognised in Canada (which is the same as ours) to be constitutionally invalid and inoperative but suspended the effect of the declaration for 24 months to permit the Canadian Parliament to act. (On appeal to the Ontario Court of Appeal, the Court, in a judgment delivered on 10 June 2003, upheld the declaration of invalidity but set aside the suspension and ordered the declaration to have immediate effect.[29])

[104] The submission incorporated 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 humanity. If you take that purpose away, we have something else; the institution has changed.’

[105] Counsel for the respondents contended 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 General 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[30] and Washington[31]), three provinces and a territory in Canada (Ontario,[32] Quebec,[33] British Columbia[34] and the Yukon[35]) and the Netherlands and Belgium, no jurisdiction 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 parallel legal institution, which gives a separate status, although the parties thereto enjoy virtually all the rights 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 extension of the common law definition to apply to same-sex unions would not be an incremental step but what he called ‘a quantum leap across a chasm’, the consequences of which would be ‘a crisis of the reality of the law’. By this he meant, he said, 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 Western Australia, addressing the issue of the independence of the judiciary[36].

[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 confidence 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 ….’

‘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 submitted that, if this Court were to be of the opinion that 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 published 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 the fact that there is currently no legal recognition of same-sex relationships’. It proposes that same-sex relationships should be acknowledged by the law and identifies three alternative ways of effecting legal recognition to such relationships, viz (a) ‘opening up the common-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 Act to the extent that it will only regulate the civil aspect of marriage, namely the requirements and consequences prescribed 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) the 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 relationships is contrary to the Constitution. It is clear, however, that this Court is not able, in the exercise of its jurisdiction to develop the common law so as to promote the spirit, purport and objects of the Bill of Rights, to grant relief based on the incorporation into our law of either the second or the third options mentioned by the Law Reform Commission. Only the first option is 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 decision dismissing a petition under s 55 of the Family Law Act 1986 for a declaration that a marriage celebrated between a person registered at birth as a male who later underwent gender re-assignment surgery 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 incompatible with the appellant'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 problem confronting Mrs Bellinger could not be resolved by recognising 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:

‘… 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 with the same force in this country. With us the concepts 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 its express recognition of the importance of the democratic values of human dignity and equality have played a major role in transforming 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’.[37] Professor Church says:[38]

‘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 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’,[39] she refers to various same-sex relationships in non-western societies which serve cultural or economic functions, and gives two examples from indigenous African culture. The first concerns the traditional 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 had four wives. Further details of such marriages are given by Oomen in her note ‘Traditional woman-to-woman marriages and the Recognition of Customary Marriages Act.’[40]

[114] Since the coming into operation of the Interim Constitution on 27 April 1994 the courts have given a series of decisions based on the equality and human dignity provisions of the Interim Constitution and the present Constitution affording to same-sex couples benefits that were previously enjoyed only by married couples.[41]

[115] In the Home Affairs case,[42] Ackermann J emphasised that ‘over the past decades an accelerating process of transformation has taken place in family relationships, 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 rather a parallel, equivalent institution. It may accordingly be argued that they do not afford a basis for adopting by judicial decision the first option suggested by the Law Commission, viz the opening up of the institution of marriage to same-sex couples, but rather as paving the 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 detract from the fact that these decisions indicate a recognition of the process of transformation to which Ackermann J referred in the Home Affairs decision.

[116] Parliament has also over the years since 1994 enacted numerous provisions giving recognition, in some cases expressly in others impliedly, to same-sex partnerships.[43] 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 circumstances that the extension of the common law definition of marriage to same-sex couples cannot be regarded in South Africa in 2004 as involving a fundamental change in the traditional concept of marriage.

[118] It seems to me that the best way of ascertaining whether the proposed extension would for us be merely an incremental step or would involve problems of great complexity, as Lord Hope of Craighead suggested would be the case in the United Kingdom, is to consider the main rules comprising that part of the law traditionally regarded as part of the law of marriage or matrimonial relations.

[119] But before doing so it is appropriate to refer to the reason given by the Roman Dutch writers who dealt with the topic for the rule restricting the marriage relationship to heterosexual couples. In his commentary on the Institutes[44] 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 Justinian and Modestinus, says:[45]

‘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 expressed by Hendrik Jan Arntzenius:[46]

‘We say “a man and a woman” which indicates that polygamy and the unspeakable practice of homosexualism are repugnant to the nature of marriage.’

[120] We no longer condemn sodomy.[47] It follows that a major reason given by jurists from the Roman Dutch era for the heterosexual requirement in the definition has now fallen away.

[121] Until comparatively recently there were other reasons precluding the recognition in our law of same-sex marriages. Because the principle of legal equality between the spouses was not enshrined in our law there were many rules forming part of our law of matrimonial relations which put the husband in a superior position and the wife in an inferior one. The law could thus not easily accommodate same-sex unions because, 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 consequence 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 matters concerning the common life of the parties, with the result, amongst 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 representing her in civil legal proceedings;[48] and (c) marital power over his wife’s property. Powers (b) and (c) could be excluded by antenuptial contract either completely or in part. Power (a) was an invariable consequence of the marriage and could not be excluded.[49]

[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 into after the commencement of the Act and not governed by the Black Administration Act 38 of 1927. The Marriage and Matrimonial Property Law Amendment Act 3 of 1988 extended the provisions of the Matrimonial Property Act to the civil marriages of Blacks (which were previously governed by the Black Administration Act). Sections 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 which it still applied and also his power flowing from his position as head of the family. This Act contained a number of other provisions repealing or amending statutory provisions which differentiated between men and women and, in particular between husbands and wives. A year before this 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 automatically acquired and followed her husband's domicile. The Guardianship Act 192 of 1993 repealed the common law rule that a father is the natural guardian of his legitimate children and replaced it by the rule that parents share guardianship in respect of their legitimate children.

[124] As far as I am aware 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 matrimonial law is the rule which provides that the proprietary consequences of a marriage are determined, where the prospective spouses have different domiciles, by the law of the domicile of the husband at the time of the marriage. (This rule was established by the decision of this Court in Frankel's Estate v The Master[50]). All other rules apply equally to both spouses. Thus spouses owe each other a reciprocal duty of support and either spouse can be ordered to support the other or, where a redistribution order is competent, to transfer assets to the other on divorce.

[125] With the exception of the rule in Frankel's case no problems will be encountered in applying the rules governing the relations between husbands and wives to partners in a same-sex union. I do not believe that the impossibility of applying the rule in Frankel's case to same-sex unions would give rise to insoluble problems.[51] The existence of this problem would not constitute a reason for refusing to extend the definition in the way we have been asked to do.

[126] Although counsel for the respondent did not contend that an inability on the part of parties to a same-sex union to procreate with each other was a basis for refusing to grant the extension of the definition sought, he did say, as I indicated earlier, that procreation is one of the characteristics going together to make up marriage. In one of the minority judgments in the Massachusetts decision to which I referred above,[52] 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 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 most prevalent social structure into which the vast majority of children are born, nurtured and prepared for productive 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 whether the Massachusetts statute, construed (as he held it had to be) as limiting marriages to couples of the opposite sex, remains a rational way to further that purpose. He concluded that it did. In reaching that conclusion 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.

If society proceeds similarly to recognize marriages between same-sex couples who cannot procreate, it could be perceived as an abandonment of this claim, and might result in the mistaken 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 attached in the present context to the fact that the parties to a same-sex union 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:[53]

‘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 constitute 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 marriage. Venter v Venter[54] is authority for the proposition that it is not, except where the inability was deliberately concealed by the affected spouse. Van Niekerk v Van Niekerk[55] on the other hand, is authority for the contrary proposition, namely that inability to procreate, even where it was not fraudulently concealed, is a ground of annulment. This is subject, however, to the important proviso that this is not the case where the parties knew that procreation was not possible.[56] 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 union, if it is to be regarded as a marriage, would not be subject to annulment and the factor under 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.[57] Having referred[58] to the reinforcement of ‘harmful and hurtful stereotypes 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 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 (4th) 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 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 referred to the fact that Parliament has in the years since 1994 passed a number of statutes recognising same-sex partnerships. As appears from the judgment given by Moseneke J when this case was before the Constitutional Court 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 regulations to the Act.[59] The extension of the definition of marriage would not appear materially to affect the operation of these statutory provisions and I am satisfied that the existence of these provisions on the statute book would 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 consider it appropriate to pass an Act, possibly by way of an amendment 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 Marriage Act would include a reference to a ‘spouse’ married in terms of that Act. This is, however, for Parliament to decide and as I am of the view, for the reasons that I shall 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 challenge the constitutional validity of s 30(1) of the Marriage Act, which sets out the marriage formula. This formula, which has been quoted above, is clearly based on the declaration prescribed by the Order in Council of 7 September 1838.[60] Section 7, as amended by an Order in Council of 3 April 1840, provided that in the case of marriages other than those using the form and ceremony or ritual of the Anglican or Dutch Reformed Churches, each of the parties had to make the following declaration: ‘I do solemnly declare that I know not of any lawful impediment why I, A.B., may not be joined in matrimony to C.D., here present.’ Thereafter each of the parties had to say to the other: ‘I call upon these persons here present to witness that I, A.B., do take C.D to be my lawful wedded wife (or husband).’[61]

[133] There is no section of the Act 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 called 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 definition 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 believe it will have to if Parliament does not take other action to ensure that the appellant's rights to equality and human dignity 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.

[135] It is well settled that ‘it is within the powers of a court to modify the language of a statutory provision where this is necessary to give effect to what was clearly the legislature's intention’.[62] Here Parliament's intention was to provide a formula for the use of those capable of marrying each other and wishing to do so, unless in the case of a marriage solemnized by a marriage officer who was a minister of religion the formula observed by the denomination to which the minister in question belonged had been approved by the Minister of Home Affairs. It is important to note that no limitations are placed on the Minister's power to approve a religious marriage formula. In other words, there is nothing to prevent the Minister from, for example, 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 intended to approve the common law definition and, as it were, to prohibit same-sex marriages by failing (or refusing) to provide a formula for use thereat. That 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.

[136] Francis Bennion,[63] refers to a presumption that an updating construction is to be given to statutes except those comparatively rare statutes intended to be of unchanging 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.”’

Later on Bennion says:[64]

‘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, technology, 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 drafter will try to foresee the future, and allow for it in the wording.’

[137] Among the examples he gives of the application of the working of the presumption are the following:[65]

‘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 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 clear that, in order to give effect to Parliament's intention, it would not only be permissible but appropriate to regard the words ‘lawful wife (or husband)’ as capable of including the words ‘lawful 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 Marriage 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 their 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 cover same-sex unions would be an incremental step in the development of the law and would not involve the court in trespassing on the domain of the legislature by effecting extensive amendments to the law involving problems of great complexity. On the other hand it is also relevant to bear in mind that the Law Reform Commission in its Discussion Paper to which I have referred[66] has drawn attention to two other possible remedies to the problem raised by the appellants 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 country. I am deeply conscious of the fact that this Court, consisting as it does of unelected judges, should not do anything which prejudices or even possibly preempts the decision Parliament takes on the matter. Important and wide ranging policy issues have to be considered. Our conclusion, limited as it is to a consideration of but one of the available options, is based solely on juridical considerations. The policy issues are for Parliament, not for us. This is a result of the application of the doctrine of the separation of powers, which, as the Constitutional Court has recently reminded us, must be 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-Natal), 1947, were found to be inconsistent with the Constitution, pointed out (at para 122) that, in deciding whether words should be severed from a provision or read into one, ‘there are two primary considerations to be kept in mind: The need to afford appropriate relief to successful litigants, on the one hand, and the need to respect separation of powers and, in particular, the role of the legislature as the institution that is entrusted with the task of enacting legislation, on the other.’ Later (in para 123) he said that ‘when curing a defect 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 Parliament 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 that decision survives such constitutional scrutiny as that to which it may be subjected, 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 order 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 Court's powers are concerned, 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 decision to develop the common law — because without the development it is not in accord 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 Court's powers to grant ‘any order that is just and equitable’ must include the power to suspend an order developing the common law, when the problem under consideration can also be solved by other methods which only Parliament can employ and where the ultimate decision as to which method should be employed depends 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 will 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 aware where an order developing the common law has been suspended, but in a number of cases where statutory provisions were declared invalid the Constitutional Court has ordered that a statutory provision declared invalid was to remain in force for a specified period to enable Parliament to correct 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’ require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in a provision declared to be invalid, which provision was to remain in force pending correction or the expiry of the specified period. One of the cases where this power was exercised was Fraser v Children's Court, Pretoria North, and Others,[67] in which it was said[68] that regard being had, inter alia, to the nuanced legislative responses which might be available in meeting the issues raised by the case, it was a proper case to require Parliament to correct the defects identified in the relevant statutory provision by an appropriate statutory provision. Section 98(5) of the Interim Constitution has been replaced by section 172(1)(b)(ii) of the Constitution, which is set out above and which does not repeat the phrase ‘in the interests of justice and good government’ although this is the test still applied by the Constitutional Court.[69]

[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 Minister of Justice and Constitutional Development for tabling in Parliament. For the reasons I have given earlier I think it important 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 one of the options to be considered by it has already been implemented by judicial 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 majority in the Divisional 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 Constitution. The Canadian courts have assumed a power to give ‘temporary force and effect’ to unconstitutional laws to allow the Legislature time to pass correcting legislation.[70] The leading case on the point is Schachter v Canada,[71] in which Lamer CJC said:[72]

‘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 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 underinclusiveness 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[73] 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 temporary validity was given to certain laws to enable the legislature to redraft them and in one case[74] to allow for consultation with Aboriginal 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 were not hard and fast rules or to the subsequent Supreme Court of Canada decisions to which Professor Hogg refers. Other Canadian courts confronted 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,[75] as did the majority of the Divisional Court in the Halpern case.[76] The British Columbia Court of Appeal suspended its order in EGALE Canada Inc v Canada (Attorney General)[77] until the expiry of the two year period imposed in the Halpern case in the Divisional Court. After the Attorney General of Canada indicated that he did not intend proceeding with his appeal against the Court of Appeal decision in the Halpern case, the Quebec and British Columbia suspensions were uplifted.[78] The Supreme Court of Massachusetts stayed entry of its judgment in the Goodridge case for 180 days to permit the legislature to take such action as it might 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 constitutional case to enable the legislature to deal with the matter is not subject 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 satisfied that this court should suspend the order it makes for a period 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 appellants would be successful in putting a stop to the breach of those rights, either because Parliament will enact appropriate legislation to deal with the matter or, if it fails to do so (either because it enacts no legislation or because it enacts legislation which does not survive constitutional scrutiny[79]), because this Court's order would then come into operation.

[150] I would make an order allowing the appeal with costs and replacing it with an order declaring that the intended marriage between the appellants, provided the formalities set out in the Marriage Act 25 of 1961 are complied with, would be capable of being recognised as a legally valid marriage, but suspending this declarator to enable Parliament to enact legislation to ensure that the appellants' rights to equality and human dignity are not unjustifiably infringed and providing that if such legislation is enacted, the declarator would fall away. I would also order the respondents to pay the applicants' costs in the court below.’


IG Farlam
Judge of Appeal


  1. 2002 (5) SA 713 (CC).
  2. 2003 (5) SA 301 (CC).
  3. Roman Private Law 3 ed (1980) translated by Professor Rolf Dannenbring, p 284.
  4. James Bryce, ‘Marriage and Divorce under Roman and English Law’ in Studies in History and Jurisprudence Volume II 782 at 811.
  5. Maasdorp’s translation Institutes of Cape Law Book 1 2 ed p 289.
  6. 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.
  7. 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.
  8. HR Hahlo The South African Law of Husband and Wife 5 ed (1985) p 15.
  9. See S van Leeuwen Censura Forensis 1.1.14.1.
  10. Voorda loc cit.
  11. Jean Brissand A History of French Private Law, translated by R Howell, p 90 et seq.
  12. Brissaud op cit pp 109–110.
  13. 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.
  14. 1905 TS 59 at 61.
  15. 1917 AD 302 at 309. See further the authorities collected in Sinclair The Law of Marriage Vol 1 p 305, fn 1.
  16. Translation based on that given by Bryce op cit p 798.
  17. RW Lee's translation The Elements of Roman Law 4 ed (1956) p 80.
  18. 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.
  19. Book 1, tit 4, para 6.
  20. (1993) 104 DLR (4th) 214 (Ont. Div. Ct) at 223.
  21. Home Affairs case, supra at para 38.
  22. Constitutional Court judgment in this matter, supra, at para 9.
  23. 2001 (4) SA 938 (CC) at 39.
  24. At para 36.
  25. (1991) 3 SCR 654; (1992) 8 CRR (2d) 173 (SCC).
  26. 2004 (1) SA 359 (SCA).
  27. At para 37.
  28. Halpern et al v Attorney General of Canada et al 215 DLR (4th) 223
  29. See (2003) 225 DLR (4th) 529
  30. 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.
  31. 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.
  32. The Halpern case, supra.
  33. Hendricks v Quebec Procureur Général [2002] RJQ 2506 (Superior Court of Quebec).
  34. Barbeau v British Columbia (Attorney-General) (2003) 225 DLR (4th) 472 (BCCA).
  35. Dunbar & Edge v Yukon (Government of) & Canada (A.G.) 2004 YKSC 54, 14 July 2004.
  36. Quoted in Advocate, Vol 17, No2, August 2004, p41.
  37. (2003) 9 Fundamina 44. In writing this judgment I have derived considerable assistance from this article.
  38. Op cit 45.
  39. Op cit 50.
  40. 2000 (63) THR-HR 274.
  41. 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).
  42. Supra, at para 47.
  43. 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.’
  44. In Quatuor Libros Institutionum Imperialium Commentarius Academicus et Forensis.
  45. Op cit 2.28.3.
  46. Institutiones Juris Belgici de Conditione Hominum, 1.2.3.2 (Van den Heever’s translation, p 52).
  47. 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.
  48. See Hahlo The South African Law of Husband and Wife 4 ed (1975) p 154.
  49. For full particulars of the old law as it stood at the end of 1974 see Hahlo op cit pp 106 et seq.
  50. 1950 (1) SA 220 (A).
  51. 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.
  52. Goodridge and Others v Department of Public Health and Another, supra.
  53. Supra, at para 93.
  54. 1949 (4) SA 123 (W).
  55. 1959 (4) SA 658 (GW).
  56. See the judgment of Wessels J at 667F and the judgment of De Vos Hugo J at 675H.
  57. Supra, at paras 50 to 52.
  58. Supra, at para 49.
  59. Details may be found in fn 19 of the judgment.
  60. See para [77] above.
  61. See also s 12 of the Huwelijkswet, Law 3 of 1871 (Transvaal) and s 13 of the Huwelijkswet, Hoofdstuk LXXXVIII of the Orange Free State Lawbook.
  62. Per Schreiner JA in Durban City Council v Gray 1951 (3) SA 568 (A) at 580 (B).
  63. Statutory Interpretation 3 ed (1997) p 686.
  64. Op cit p 687.
  65. Op cit pp 695–7.
  66. See para [62] above.
  67. 1997 (2) SA 261 (CC).
  68. In para 50 at 283 I–284 B).
  69. See Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC) at 434G–H.
  70. See Hogg Constitutional Law of Canada 4 ed (looseleaf) para 37.1 (d), pp 37–4.
  71. (1992) 10 CRR (2d) 1 (SCC).
  72. At 27.
  73. Op cit at pp 37–8 to 37–9 (fn38).
  74. Corbiere v Canada [1999] 2 SCR 203.
  75. [2002] RJQ 2506 (Superior Court of Quebec).
  76. Supra.
  77. (2003) 225 DLR (4th) (BCCA)
  78. See Catholic Civil Rights League v Hendricks [2004] QJ No 2593 and EGALE Canada Inc v Canada (Attorney-General) 228 DLR (4th) 416 (BCCA).
  79. 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.