The case was originally due to be heard in the High Court in October this year, but was eventually set down for January next year. The Equality Project then applied for direct access to this Court to enable their challenge to the statute as well as to the common law definition of marriage to be heard together with the appeal and the cross-appeal relating to the SCA judgment in the Fourie case.
[35]The Minister of Home Affairs, the Director-General of Home Affairs and the Minister of Justice and Constitutional Development (I refer to them collectively as the state), opposed the application on the ground that direct access was not in the interests of justice.[1] The state agreed with the SCA that the primary issue was whether same-sex partners should be granted access to the existing common law institution of marriage, but disputed the finding that same-sex couples were entitled to such access. The state submitted that the SCA had misdirected itself in concluding that the common law definition of marriage violates the constitutional rights of lesbian and gay people to equality. Instead, it contended that it was the lack of legal recognition of their same-sex family relationships and the absence of legal consequences, which violated their rights, and not the exclusion from the institution of marriage.
[36]The state accordingly acknowledged that partners to same-sex relationships suffer discriminatory effects and violations of dignity and privacy and that such violations should be removed. It contended, however, that granting same-sex couples
- ↑ As contemplated by section 167(6) of the Constitution, which reads:
“National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or (b) to appeal directly to the Constitutional Court from any other court.”
