Minister of Home Affairs and Another v Fourie and Another

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Minister of Home Affairs and Another v Fourie and Another  (2005) 
by Justices Albie Sachs and Kate O'Regan, in the Constitutional Court of South Africa
Minister of Home Affairs and Another v Fourie and Another is a landmark decision of the Constitutional Court of South Africa which established that the government was constitutionally obliged to allow same-sex couples to marry. The judgment is primarily based on section 9 of the Constitution, which explicitly forbids discrimination on the grounds of sexual orientation.

Argument was heard on 17 May 2005, and the judgment was handed down on 1 December. The court ruled unanimously that the common-law definition of marriage and the Marriage Act were unconstitutionally discriminatory. The majority judgment suspended the order for one year to allow Parliament to legalise same-sex marriage, failing which the Marriage Act would be deemed to be amended to allow it. One judge dissented, believing that the act should be amended immediately. Ultimately Parliament enacted the Civil Union Act, 2006 (which, despite the title, allows for full same-sex marriage) one day before the court's deadline.

This is the last in a series of four judgments in this case:

Constitutional Court of South Africa


Case CCT 60/04


Minister of Home Affairs First Applicant
Director-General of Home Affairs Second Applicant
versus
Marié Adriaana Fourie First Respondent
Cecelia Johanna Bonthuys Second Respondent
with
Doctors for Life International First amicus curiae
John Jackson Smyth Second amicus curiae
The Marriage Alliance of South Africa Third amicus curiae


Case CCT 10/05


Lesbian and Gay Equality Project and Eighteen Others Applicants
versus
Minister of Home Affairs First Respondent
Director-General of Home Affairs Second Respondent
Minister of Justice and Constitutional Development Third Respondent


Heard on  :  17 May 2005
Decided on  :  1 December 2005


Judgment






Minister of Home Affairs and Another v Marié Adriaana Fourie and Another:

For the applicants: MTK Moerane SC and S Nthai instructed by the State Attorney, Johannesburg.

For the respondents: P Oosthuizen and T Kathri instructed by M van den Berg Attorneys.

For the first amicus curiae: John Jackson Smyth QC. (Written argument only.)

For the second amicus curiae: John Jackson Smyth QC.

For the third amicus curiae: GC Pretorius SC, DM Achtzehn, PG Seleka and JR Bauer instructed by Motla Conradie Attorneys


Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others:

For the applicants: DI Berger SC and F Kathree instructed by Nicholls, Cambanis and Associates.

For the respondents: M Donen SC instructed by the State Attorney, Johannesburg.

This work is in the public domain because it was created and first published in South Africa and it is an official text of a legislative, administrative or legal nature, or an official translation of such a text.

According to the Copyright Act, 1978, § 12 (8) (a), "No copyright shall subsist in official texts of a legislative, administrative or legal nature, or in official translations of such texts."