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

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in the Supreme Court of Appeal of South Africa

Cameron JA:

[1]I am indebted to my colleague Farlam JA for the benefit of reading his judgment. On the main question, the development of the common law, we agree. We differ in our approach to one aspect of the Marriage Act 25 of 1961, and on whether the order should be suspended. In view of this and other differences I propose briefly to set out my reasons for allowing the appeal, without the order of suspension Farlam JA proposes.

[2]The appellants are two adult persons who on the undisputed evidence love each other. They feel and have deliberately expressed an exclusive commitment to each other for life. The question is whether the common law of this country allows them to marry. That question is controversial because they are of the same sex. Until now, marriage as a social and legal institution has been understood to be reserved for couples of opposite sexes. Joined by the Lesbian and Gay Equality Project as amicus, the appellants—two women who more than ten years ago dedicated themselves to a life together—ask the court to issue a declaration that this is not so. They wish to be married, they testify, ‘for the very reason that the bond between us is so genuine and serious’,[1] and because not being able to marry presents a host of practical and legal impediments to their shared life.

[3]They raise no statutory challenge. Instead, their founding affidavit asks the court to grant them relief by invoking its jurisdiction to develop the common law in accordance with the Constitution. In the Pretoria High Court Roux J dismissed their application on the ground that the relief they sought was incompatible with the Marriage Act 25 of 1961. He ordered them and the amicus to pay the costs of the respondents (the Minister and Director-General of Home Affairs). (The respondents later abandoned the costs order against the amicus.)

[4]The Constitution grants inherent power to the Constitutional Court, the Supreme Court of Appeal and the High Courts ‘to develop the common law, taking into account the interests of justice’ (s 173). The Bill of Rights (s 8(3)) provides that when applying a provision of the Bill of Rights to a natural or juristic person a court, in order to give effect to a right in the Bill, ‘must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right’ (though it may develop the rules of the common law to limit the right in accordance with the limitations provision in s 36(1)). It also provides that when developing the common law, a court ‘must promote the spirit, purport and objects of the Bill of Rights’ (s 39(2)).

[5]Taken together, these provisions create an imperative normative setting that obliges courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Doing so is not a choice. Where the common law is deficient, the courts are under a general obligation to develop it appropriately.[2]

[6]This provides the background to our task in the appeal. At its centre is the fact that our Constitution expressly enshrines equality on the ground of sexual orientation.[3] When this took effect at the birth of our democracy on 27 April 1994,[4] it was unique: at the time no other country's founding document outlawed unfair discrimination on the express ground of sexual orientation. Its inclusion in the list of conditions specially protected against unfair discrimination was both novel and bold.[5] This is important to emphasise, not because our decision requires boldness, but because the reasons for including sexual orientation in the Constitution illuminate our path.

[7] Through more than 300 years, the primary criterion for civic and social subordination in South Africa was race. On the basis of their skin colour, black women and men were subjected to a host of systematic indignities and exclusions. These included denial of voting rights and citizenship. What was unique about apartheid was not that it involved racial humiliation and disadvantage—for recent European history has afforded more obliterating realisations of racism—but the fact that its iniquities were enshrined in law. More than anywhere else, apartheid enacted racism through minute elaboration in systematised legal regulation. As a consequence, the dogma of race infected not only our national life but the practice of law and our courts' jurisprudence at every level.

[8]Yet despite this rank history, the negotiating founders determined that our aspirations as a nation and the structures for their realisation should be embodied in a constitution that would regulate contesting claims through law. This decision embodied a paradox. Though apartheid used legal means to exclude the majority of this country's people from civic and material justice, the law—embodied in a detailed founding document—would now form the basis for our national aspirations. This paradox lies at the core of our national project—that we came from oppression by law, but resolved to seek our future, free from oppression, in regulation by law. Our constitutional history thus involves—

‘a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance’.[6]

[9]In expressing this vision of our future, the founders committed themselves to a conception of our nationhood that was both very wide and very inclusive. In this lay a further paradox: for the very extent of past legal exclusion and denigration now determined the generosity of the protection that the Constitution offered. It was because the majority of South Africans had experienced the humiliating legal effect of repressive colonial conceptions of race and gender that they determined that henceforth the role of the law would be different for all South Africans. Having themselves experienced the indignity and pain of legally regulated subordination, and the injustice of exclusion and humiliation through law, the majority committed this country to particularly generous constitutional protections for all South Africans.

[10]These paradoxes illuminate the significance of the Constitution's promise of freedom from unfair discrimination on the ground of sexual orientation. For though oppression on the ground of sexual orientation was not paramount in the scheme of historical injustice, it formed part of it, and the negotiating founders deliberately committed our nation to a course that disavowed all forms of legalised oppression and injustice.[7] Instead of selective remediation of the badges of repression and dishonour, all criteria of unfair discrimination were renounced in favour of an ample commitment to equality under law. The national project of liberation would not be mean-spirited and narrow but would encompass all bases of unjust denigration. Non-discrimination on the ground of sexual orientation was to be a part—perhaps a relatively small part, but an integral part—of the greater project of racial reconciliation and gender and social justice through law to which the Constitution committed us.

[11]The fact that homosexuality was in 1994 and still is a controversial issue in Africa, as elsewhere in the world, did not deflect from this commitment. The equality clause went further than elsewhere in Africa: but this was because the legal subordination imposed by colonialism and apartheid went further than anywhere else in Africa. It lasted longer, was more calculated, more intrusive, more pervasive and more injurious. In response the negotiating founders offered the humane vision of nationhood on the basis of expansive legal protections.

[12]This setting explains the ‘strides’[8] that our equality jurisprudence has taken in respect of gays and lesbians in the last ten years. Consensual sexual conduct between adults in private has been freed from criminal restriction, not only because sexual orientation is specifically listed in the Bill of Rights, but on wider grounds of dignity and privacy.[9] Same-sex partners have been held to be entitled to access to statutory health insurance schemes.[10] The right of permanent same-sex partners to equal spousal benefits provided in legislation has been asserted.[11] The protection and nurturance same-sex partners can jointly offer children in need of adoption has been put on equal footing with heterosexual couples.[12] The right of a same-sex partner not giving birth to a child conceived by artificial insemination to become the legitimate parent of the child has been confirmed.[13] The equal right of same-sex partners to beneficial immigrant status has been established.[14] And this Court has developed the common law by extending the spouse's action for loss of support to partners in permanent same-sex life relationships.[15]

[13]The importance of these cases lies not merely in what they decided, but in the far-reaching doctrines of dignity, equality and inclusive moral citizenship[16] they articulate. They establish the following:

(a) Gays and lesbians are a permanent minority in society who in the past have suffered from patterns of disadvantage. Because they are a minority unable on their own to use political power to secure legislative advantages, they are exclusively reliant on the Bill of Rights for their protection.[17]
(b) The impact of discrimination on them has been severe, affecting their dignity, personhood and identity at many levels.[18]
(c) ‘The sting of past and continuing discrimination against both gays and lesbians’ lies in the message it conveys, namely that, viewed as individuals or in their same-sex relationships, they ‘do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships’. This ‘denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity’, namely that ‘all persons have the same inherent worth and dignity’, whatever their other differences may be.[19]
(d) Continuing discrimination against gays and lesbians must be assessed on the basis that marriage and the family are vital social institutions. The legal obligations arising from them perform important social functions.[20] They provide for security, support and companionship between members of our society and play a pivotal role in the rearing of children.[21]
(e) Family life as contemplated by the Constitution can be constituted in different ways and legal conceptions of the family and what constitutes family life should change as social practices and traditions change.[22]
(f) Permanent same-sex life partners are entitled to found their relationships in a manner that accords with their sexual orientation: such relationships should not be subject to unfair discrimination.[23]
(g) Gays and lesbians in same-sex life partnerships are ‘as capable as heterosexual spouses of expressing and sharing love in its manifold forms’. 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’. They ‘are individually able to adopt children and in the case of lesbians to bear them’. They have in short ‘the same ability to establish a consortium omnis vitae’. Finally, they are ‘capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life’ in a way that is ‘not distinguishable in any significant respect from that of heterosexual spouses’.[24]
(h) The decisions of the courts regarding gays and lesbians should be seen as part of the growing acceptance of difference in an increasingly open and pluralistic South Africa that is vital to the society the Constitution contemplates.[25]
(i) Same-sex marriage is not unknown to certain African traditional societies.[26]

[14]These propositions point our way. At issue is access to an institution that all agree is vital to society and central to social life and human relationships. More than this, marriage and the capacity to get married remain central to our elf-definition as humans. As Madala J has pointed out, not everyone may choose to get married: but heterosexual couples have the choice.[27] The capacity to choose to get married enhances the liberty, the autonomy and the dignity of a couple committed for life to each other. It offers them the option of entering an honourable and profound estate that is adorned with legal and social recognition, rewarded with many privileges and secured by many automatic obligations.[28] It offers a social and legal shrine for love and for commitment and for a future shared with another human being to the exclusion of all others.

[15]The current common law definition of marriage deprives committed same-sex couples of this choice. In this our common law denies gays and lesbians who wish to solemnise their union a host of benefits, protections and duties. Legislation has ameliorated,[29] but not eliminated,[30] the disadvantage same-sex couples suffer.[31] More deeply, the exclusionary definition of marriage injures gays and lesbians because it implies a judgment on them. It suggests not only that their relationships and commitments and loving bonds are inferior, but that they themselves can never be fully part of the community of moral equals that the Constitution promises to create for all.

[16]The vivid message of the decisions of the last ten years is that this exclusion cannot accord with the meaning of the Constitution, and that it ‘undermines the values which underlie an open and democratic society based on freedom and equality’.[32] In the absence of justification, it cannot but constitute unfair discrimination that violates the equality and other guarantees in the Bill of Rights.

[17]The justification respondents' counsel suggested in this case was in essence that the procreative purpose that is usually and rightly associated with marriage requires that the institution be restricted to heterosexual couples only. But this does not pass. The suggestion that gays and lesbians cannot procreate has already been authoritatively rejected as a mistaken stereotype.[33] In any event the Constitutional Court has held that ‘from a legal and constitutional point of view procreative potential is not a defining characteristic of conjugal relationships’.[34]

[18]The appellants moreover do not seek to limit procreative heterosexual marriage in any way. They wish to be admitted to its advantages, notwithstanding the same-sex nature of their relationship. Their wish is not to deprive others of any rights. It is to gain access for themselves without limiting that enjoyed by others. Denying them this, to quote Marshall CJ in the Massachusetts Supreme Court of Judicature, ‘works a deep and scarring hardship on a very real segment of the community for no rational reason.’[35] Marshall CJ elaborated thus:

‘Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.’ (para 57)

[19]It is for this reason that the question of extending marriage to same-sex couples involves such intense and pure questions of principle. As Sachs J has observed in a different setting, ‘because neither power nor specific resource allocation are at issue, sexual orientation becomes a moral focus in our constitutional order’.[36] The focus in this case falls on the intrinsic nature of marriage, and the question is whether any aspect of same-sex relationships justifies excluding gays and lesbians from it. What the Constitution asks in such a case is that we look beyond the unavoidable specificities of our condition—such as race, gender and sexual orientation—and consider our intrinsic human capacities and what they render possible for all of us. In this case, the question is whether the capacity for commitment, and the ability to love and nurture and honour and sustain, transcends the incidental fact of sexual orientation. The answer suggested by the Constitution itself and by ten years of development under it is Yes.

[20]The remaining justification sought to be advanced—impliedly if not expressly—invokes the acknowledged fact that most South Africans still think of marriage as a heterosexual institution, and that many may view its extension to gays and lesbians with apprehension and disfavour. Six years ago, the Constitutional Court acknowledged that revoking the criminal prohibitions on private consensual homosexual acts touched ‘deep convictions’ and evoked ‘strong emotions’, and that contrary views were not confined to ‘crude bigots only’.[37] We must do the same. Our task is to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. In this our sole duty lies to the Constitution: but those we engage with most deeply in explaining what that duty entails is the nation, whose understanding of and commitment to constitutional values is essential if the larger project of securing justice and equality under law for all is to succeed.

[21]In interpreting and applying the Constitution we therefore move with care and respect, and with appreciation that a diverse and plural society is diverse and plural precisely because not everyone agrees on what the Constitution entails. Respect for difference requires respect also for divergent views about constitutional values and outcomes.

[22]It is also necessary to be mindful, as the Constitutional Court reminds us, ‘of the fact that the major engine for law reform should be the Legislature and not the Judiciary’.[38] In the same breath in which it issued this cautionary, however, the Court drew attention to the imperative need for the common law to be consonant with ‘a completely new and different set of legal norms’. It therefore urged that courts ‘remain vigilant’ and not ‘hesitate to ensure that the common law is developed to reflect the spirit, purport and objects of the Bill of Rights’.[39]

[23]In moving forward we also bear in mind that the meaning of our constitutional promises and guarantees did not transpire instantaneously. Establishing their import involves a process of evolving insight and application.[40] Developing the common law involves a simultaneously creative and declaratory function in which the court puts the final touch on a process of incremental legal development that the Constitution has already ordained. This requires a deepening understanding of ourselves and our commitment to each other as South Africans across the lines of race, gender, religion and sexual orientation. As Ngcobo J has stated:

‘Our Constitution contemplates that there will be a coherent system of law built on the foundations of the Bill of Rights, in which common law and indigenous law should be developed and legislation should be interpreted so as to be consistent with the Bill of Rights and with our obligations under international law. In this sense the Constitution demands a change in the legal norms and the values of our society.’[41]

[24]This process also requires faith in the capacity of all to adapt and to accept new entrants to the moral parity and equal dignity of constitutionalism. Judges are thus entitled to put faith in the sound choices the founding negotiators made on behalf of all South Africans in writing the Constitution. And they are entitled also to trust that South Africans are prepared to accept the evolving implications that those choices entail.

[25]The task of applying the values in the Bill of Rights to the common law thus requires us to put faith in both the values themselves and in the people whose duly elected representatives created a visionary and inclusive constitutional structure that offered acceptance and justice across diversity to all. The South African public and their elected representatives have for the greater part accepted the sometimes far-reaching decisions taken in regard to sexual orientation and other constitutional rights over the past ten years. It is not presumptuous to believe that they will accept also the further incremental development of the common law that the Constitution requires in this case.

Relief the appellants seek: the Marriage Act 25 of 1961

[26]In their founding affidavit the appellants ask the Court to develop the common law to recognise same-sex marriages. Their notice of motion seeks to cast this relief by way of a declarator that their (proposed) marriage be recognised as a valid marriage in terms of the Marriage Act 25 of 1961, and that the Minister and Director-General of Home Affairs be directed to register their marriage in terms of the Marriage Act and the Identification Act 68 of 1997. In the High Court, Roux J concluded that the provisions of the Marriage Act were ‘peremptory’ and that they constituted an obstacle to granting the appellants any relief. This is not correct.

[27]The Marriage Act contains no definition of marriage. It was enacted on the assumption—unquestioned at the time—that the common law definition of marriage applied only to opposite-sex marriages. That definition underlies the statute. This Court has now developed it to encompass same-sex marriages. The impediment the statute presents to the broader relief the appellants seek is only partial. This lies in the fact that s 30(1) prescribes a default—but not exclusive—marriage formula. That formula must be used by (a) marriage officers who are not ministers of religion or persons holding a ‘responsible position’ in a religious denomination or organisation; and (b) marriage officers who are ministers of religion or who do hold such a position, but whose marriage formulae have not received ministerial approval.[42] The statute requires that such marriage officers ‘shall put’ the default formula to the couple, and it requires each to answer the question whether they accept the other ‘as your lawful wife (or husband)’. The statute empowers the Minister however to approve religious formulae that differ from the default formula.

[28]Farlam JA suggests that we can change even the default formula by a process of innovative and ‘updating’ statutory interpretation by reading ‘wife (or husband)’ in this provision as ‘spouse’. I cannot agree. There are two principal reasons. The first is that I think this would go radically further than the process of statutory interpretation can appropriately countenance. The second is that in my view the particular words, because of their nature and the role the statute assigns to them, are not susceptible to the suggested interpretative process.

[29]First, as Ackermann J explained in the Home Affairs case, there is ‘a clear distinction’ between interpreting legislation in conformity with the Constitution and its values, and granting the constitutional remedies of reading in or severance. The two processes are ‘fundamentally different’:

‘The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid.’[43]

[30]That it is not always easy to determine ‘what the text is reasonably capable of meaning’ emerges from Daniels v Campbell.[44] In a split decision, the Constitutional Court held that the word ‘spouse’ in the Intestate Succession Act 81 of 1987 can be read to include the surviving partner to a monogamous Muslim marriage. The majority came to this conclusion after distinguishing the position of same-sex partners, who, that Court had previously held,[45] could not be read as being included in statutory references to ‘spouse’. The majority held, per Sachs J, that central to the Court's previous decisions to this effect ‘was a legal finding that it would place an unacceptable degree of strain on the word “spouse” to include within its ambit parties to a same-sex life partnership’.[46] The majority also concluded, per Ngcobo J, that the previous decisions ‘must be understood to hold that the word “spouse” cannot be construed to include persons who are not married.’[47] Moseneke J agreed with the result but considered that the provision should be declared unconstitutionally narrow and the remedial process of ‘reading in’ adopted.[48]

[31]The majority in Daniels assigned a broad meaning to a word whose purport was not certain. It applied the constitutionally interpretative approach. This involved attributing a wide meaning to a word, without changing the word. The approach suggested by Farlam JA goes radically further. It does not assign a broad meaning to a contested word or phrase, but substitutes a phrase with an entirely different word. In the circumstances of this case I do not consider that this is permissible. Radically innovative statutory interpretations of this kind were devised, as the authority Farlam JA quotes shows, for jurisdictions which do not, or at the time did not, have the ample remedies of constitutionalism. Under our Constitution, the proper interpretative approach is plain.[49] If statutory wording cannot reasonably bear the meaning that constitutional validity requires, then it must be declared invalid and the ‘reading in’ remedy adopted.

[32]Second. Most statutory provisions create norms that guide state officials and others who exercise power. When their interpretation is at issue, the question is how broadly or narrowly they apply. Section 30(1) does not create a norm for the application of state power. It describes an action. It prescribes a verbal formula that must be uttered if the legal consequences of lawful marriage are to follow. What it requires is action that must be performed if the parties' personal status is to be changed in relation to each other and the world. The action consists in the utterance of specified words. But it is action no less. The statutory formula in other words encodes a ‘performative utterance’[50] which the statute requires as a precondition to the happening of the marriage and its legal consequences.

[33]In my view where the legislature prescribes a formula of this kind its words can not be substituted by ‘updating’ interpretation. If the Court, and not the legislature, is to make a constitutionally necessary change to such a formula, that must be done not by interpretation but by the constitutional remedy of ‘reading in’. That remedy is appropriate because it changes in a permissible manner the nature of the action the statute requires, without purporting merely to interpret its words.

[34]The appellants' legal advisors apparently overlooked the question of the marriage formula entirely. As Moseneke J pointed out in refusing leave to appeal directly to the Constitutional Court, their papers do not seek ‘a declaration that any of the provisions of the legislation dealing with the solemnising or recording of marriages is inconsistent with the Constitution’.[51]

[35]This does not however in my view constitute an obstacle to granting the appellants some portion of the relief they seek, as Roux J considered. As Farlam JA points out (para 91), the Act permits the Minister to approve variant marriage formulae for ministers of religion and others holding a ‘responsible position’ within religious denominations. There are many religious societies that currently approve gay and lesbian marriage, including places of worship specifically dedicated to gay and lesbian congregations. Even without amendment to the statute, the Minister is now at liberty to approve religious formulae that encompass same-sex marriages.

[36]It is important to emphasise that neither our decision, nor the ministerial grant of such a formula, in any way impinges on religious freedom. The extension of the common law definition of marriage does not compel any religious denomination or minister of religion to approve or perform same-sex marriages. The Marriage Act specifically provides that:

‘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 organisation to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organisation’ (s 31).

[37]When the Minister approves appropriate religious formulae (though subject to the possibility of further appeal proceedings), the development of the common law in this appeal will take practical effect. Religious orders for whose use such formulae are approved will at their option be able to perform gay and lesbian marriages. But gay and lesbian couples seeking to have a purely secular marriage will have to await the outcome of proceedings which, we were informed from the Bar, were launched in the Johannesburg High Court in July 2004, designed to secure comprehensive relief by challenging the provisions of the Marriage Act and other statutes.

Should our order be suspended?

[38]Having concluded that the common law should be developed, Farlam JA proposes to suspend the order for two years. I cannot agree. The suggested suspension is in my respectful view neither appropriate nor in keeping with principle, the justice of this case, or the role the Constitution assigns to courts in developing the common law. It is in my view also not logical to hold that developing the common law does not stray into the legislative domain, as Farlam JA rightly holds, but then to suspend the order as though it did.

[39]First the Constitution. As suggested earlier, development of the common law entails a simultaneously creative and declaratory function in which the court perfects a process of incremental legal development that the Constitution has already ordained. Once the court concludes that the Bill of Rights requires that the common law be developed, it is not engaging in a legislative process. Nor in fulfilling that function does the court intrude on the legislative domain.

[40]It is precisely this role that the Bill of Rights envisages must be fulfilled, and which it entrusts to the judiciary. As set out earlier (para 3 above), s 8(3) of provides that in order to give effect to a right in the Bill of Rights a court must—subject to limitation—‘apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right’. Section 8(3) envisages just the situation this appeal presents—that legislation to give effect to a fundamental right is absent. In this circumstance, the Constitution deliberately assigns an imperative role to the court. Subject to limitation, it is obliged to develop the common law appropriately. And this role is particularly suited to the judiciary, since the common law and the need for its incremental development are matters with which lawyers and judges are concerned daily.

[41]In this case the equality and dignity provisions of the Bill of Rights require us to develop the common law. This is because legislation ‘does not give effect’ to the rights of same-sex couples discussed above. In such a situation the incremental development that the Bill of Rights envisages is entrusted to the courts. It will be rarely, if ever, that an order pursuant to such incremental development can or should be subjected to suspension.

[42]This approach is borne out by the Constitutional Court's approach in J v Director General, Department of Home Affairs.[52] There the Court declared a statutory provision to be inconsistent with the Constitution and afforded a remedy that ‘read in’ appropriate expansionary words. The Home Affairs department—also a respondent in this appeal—asked the Court to suspend the declaration of invalidity, as it asks us to suspend the order developing the common law here. The basis on which it sought suspension there was identical to that it advances here, namely the prospect of legislation following a pending South African Law Reform Commission investigation.[53]

[43]In that case the Constitutional Court refused to suspend. It held that ‘Where the appropriate remedy is reading in words in order to cure the constitutional invalidity of a statutory provision, it is difficult to think of an occasion when it would be appropriate to suspend such an order’:

‘This is so because the effect of reading in is to cure a constitutional deficiency in the impugned legislation. If reading in words does not cure the unconstitutionality, it will ordinarily not be an appropriate remedy. Where the unconstitutionality is cured, there would usually be no reason to deprive the applicants or any other persons of the benefit of such an order by suspending it.’[54]

The reasoning in J seems to me to apply with even greater force where the court’s order does not touch on legislation at all, but develops the common law. Legislation is the province of Parliament. If granting the remedy of ‘reading in’ does not intrude on the legislative domain, then development of the common law in accordance with the Constitution—the particular responsibility of the judiciary—does so even less.

[44]The reference in the judgment of Farlam JA to the recent decision of the Constitutional Court in Zondi v Member of the Executive Council for Traditional and Local Government Affairs (15 October 2004) does not, with respect, take the matter any further. Zondi re-emphasises three clear strands of the remedial jurisprudence of the Constitutional Court. The first is that the court ‘should be slow to make those choices which are primarily choices suitable for the Legislature’.[55] The second is that, for this reason, the court frequently suspends an order of statutory invalidity—as it did in Zondi—in order to give the legislature the opportunity to fulfil its particular function of matching legislation with constitutional obligation.

[45]What my colleague's allusion to Zondi leaves out of account is that the case itself illustrates a third, equally vital, strand of Constitutional Court remedial jurisprudence. This is the ‘important principle of constitutional adjudication that successful litigants should be awarded relief’.[56] In Dawood, that had the consequence that (a) the provisions of the statute at issue were declared invalid; (b) the order of invalidity was suspended to enable Parliament to do what was constitutionally necessary; but (c) an extensive order was also granted, requiring Home Affairs officials in the interim to act in accordance with the principles of the judgment, pending the legislative modifications.[57] In Zondi, too, an order of invalidity was issued and suspended, but extensive remedial assistance was granted.[58]

[46]In my respectful view the appellants in this case are entitled to no less. Our order developing the common law trenches on no statutory provision. Deference to the particular functions and responsibilities of the legislature does not therefore require that we suspend it. Instead, the appellants are entitled to appropriate relief. They should be awarded the benefit of a declaration regarding the common law of marriage that takes effect immediately.

[47]In conclusion I would add that the Constitutional Court called in J for ‘comprehensive legislation’ regularising same-sex partnerships.[59] That has not been forthcoming. This may be for many reasons, doubtless including the imperative requirements of other legislative priorities. It is not inconceivable, however, that the legislature may be content, or even prefer, that this process of fulfilling the sexual orientation guarantee in the Constitution should proceed incrementally by leaving development of the common law to the courts.[60] If this is not so, our unsuspended decision will not preclude later constitutionally sound legislation.[61]

[48]In all these circumstances I conclude that the appellants are entitled to immediate declaratory relief regarding the development of the common law, and to a declaration that their intended marriage is capable of recognition as lawfully valid subject to compliance with statutory formalities.


[49]The following order is made:

  1. The appeal succeeds with costs.
  2. The order of the court below is set aside. In its place is substituted:
‘(1) It is declared that:
(a) In terms of sections 8(3), 39(2) and 173 of the Constitution, the common law concept of marriage is developed to embrace same-sex partners as follows: ‘Marriage is the union of two persons to the exclusion of all others for life.’
(b) The intended marriage between the appellants is capable of lawful recognition as a legally valid marriage, provided the formalities in the Marriage Act 25 of 1961 are complied with.
(2) The respondents are ordered to pay the applicants' costs.’

E Cameron
Judge of Appeal


Mthiyane JA
Van Heerden JA
Ponnan AJA

  1. Founding affidavit para 16: ‘Juis ook omdat die verbintenis tussen ons so eg en ernstig is, voel ons om in die eg verbind te word.’
  2. Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies intervening) 2001 (4) SA 938 (CC) paras 34 and 39, per Ackermann and Goldstone JJ on behalf of the Court.
  3. Bill of Rights s 9(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.’ Section 9(4): ‘No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.’ Section 9(5): ‘Discrimination on one or more grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’
  4. Interim Constitution, Act 200 of 1993, s 8(2): ‘No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.’
  5. The inclusion of sexual orientation in our Constitution is recounted in LM du Plessis and HM Corder Understanding South Africa's Transitional Bill of Rights (Juta, 1994) ch 5 pages 139–144; Carl F Stychin A Nation by Rights (Temple University Press, 1998) ch 3 pages 52–88; Richard Spitz and Matthew Chaskalson The Politics of Transition – a hidden history of South Africa's negotiated settlement (Witwatersrand University Press, 2000) ch 15 pages 301–312.
  6. Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) para 21, per Langa DP.
  7. Compare the position regarding gender discrimination as set out in Brink v Kitshoff NO 1996 (4) SA 197 (CC) para 44, per O'Regan J for the Court: ‘Although in our society discrimination on grounds of sex has not been as visible, nor as widely condemned, as discrimination on grounds of race, it has nevertheless resulted in deep patterns of disadvantage. These patterns of disadvantage are particularly acute in the case of black women, as race and gender discrimination overlap. That all such discrimination needs to be eradicated from our society is a key message of the Constitution.’
  8. Daniels v Campbell NO 2004 (5) SA 331 (CC) para 103, per Moseneke J.
  9. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) paras 28–32, per Ackermann J for the Court; paras 108–129, per Sachs J (with whose sentiments Ackermann J associated himself—para 78).
  10. Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T), per Roux J.
  11. Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC), per Madala J for the Court.
  12. Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC), per Skweyiya AJ for the Court.
  13. J v Director General: Department of Home Affairs 2003 (5) SA 621 (CC), per Goldstone J for the Court.
  14. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC), per Ackermann J for the Court.
  15. Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA), per Cloete JA for the Court.
  16. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) paras 107 and 127, per Sachs J.
  17. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 25.
  18. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 26(a).
  19. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 42, per Ackermann J.
  20. Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 31, per O'Regan J for the Court, applied in Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 13.
  21. Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) para 19.
  22. Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) para 19.
  23. Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 15. See too National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 82.
  24. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 53(iv)–(viii), per Ackermann J.
  25. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 138 and para 107, per Sachs J.
  26. Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 12, per Madala J.
  27. Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 16.
  28. See Harksen v Lane NO 1998 (1) SA 300 (CC) para 93, per O'Regan J (Madala and Mokgoro JJ concurring) (‘marital status is a matter of significant importance to all individuals, closely related to human dignity and liberty’) and compare Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 30, per O'Regan J for the Court (‘such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others’).
  29. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 37 (‘A notable and significant development in our statute law in recent years has been the extent of express and implied recognition the Legislature has accorded same-sex partnerships’).
  30. J v Director General: Department of Home Affairs 2003 (5) SA 621 (CC) para 23 (‘Comprehensive legislation regularising relationships between gay and lesbian persons is necessary’).
  31. Compare Halpern v Attorney-General of Canada 225 DLR 529 (Ontario Court of Appeal) para 104 (piecemeal legislation extending benefits to same-sex couples may impose preconditions while ‘married couples have instant access to all benefits and obligations’).
  32. Tshepo L Mosikatsana ‘The Definitional Exclusion of Gays and Lesbians from Family Status’ (1996) 12 SAJHR 549 566.
  33. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 50.
  34. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 51, per Ackermann J for the Court.
  35. Goodridge v Department of Public Health 440 Mass 309, 798 NE 2d 941 para 63; and see National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 56 (‘there is no rational connection between the exclusion of same-sex life partners … and the government interest sought to be achieved thereby, namely the protection of families and the family life of heterosexual spouses’).
  36. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 128.
  37. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 38.
  38. Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies intervening) 2001 (4) SA 938 (CC) para 36.
  39. Carmichele para 36.
  40. See Van Rooyen and others v The State and others (General Council of the Bar of South Africa intervening) 2002 (5) SA 246 (CC) para 75 (judicial independence is ‘an evolving concept’) and para 249 (practical reasons ‘at this stage of the evolving process of judicial independence’ may justify constitutionally undesirable temporary appointments).
  41. Daniels v Campbell NO 2004 (5) SA 331 (CC) para 56.
  42. Marriage Act 25 of 1961, s 30(1): ‘In solemnizing any marriage any marriage officer designated under section 3 may follow the marriage formula usually observed by his religious denomination or organisation if such marriage formula has been approved by the Minister [of Home Affairs], 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)?”,

    and thereupon the parties shall each give each other the right hand and the marriage officer concerned shall declare the marriage solemnized in the following words:

    “I declare that A.B. and C.D. here present have been lawfully married.”.’

  43. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 24.
  44. 2004 (5) SA 331 (CC).
  45. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 CC) para 25; Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 9.
  46. Daniels v Campbell NO 2004 (5) SA 331 (CC) para 33.
  47. Daniels para 62.
  48. Daniels paras 64–111.
  49. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 24; Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) paras 21–26.
  50. John L Austin, How to Do Things with Words, ed. J. O. Urmson and Marina Sbisá (Harvard University Press, 1962) pages 5–5, accessed at ‘Utterances can be found… such that: A. They do not ‘describe’ or ‘report’ or constate anything at all, are not ‘true or false,’ and B. The uttering of the sentence is, or is a part of, the doing of an action, which again would not normally be described as, or as ‘just,’ saying something.’ Austin’s classic example is the marriage formula. He also instances ‘I hereby name this ship …’ and ‘I give you sixpence’. ‘In these examples it seems clear that to utter the sentence (in, of course, the appropriate circumstances) is not to describe my doing of what I should be said in so uttering to be doing or to state that I am doing it: it is to do it.’
  51. Fourie v Minister of Home Affairs 2003 (5) SA 301 (CC) para 11.
  52. 2003 (5) SA 621 (CC) paras 21 and 22.
  53. South African Law Reform Commission Discussion Paper 104, Project 118.
  54. 2003 (5) SA 621 (CC) para 22.
  55. Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 64; Zondi para 123.
  56. S v Bhulwana, S v Gwadiso 1996 (1) SA 388 (CC) para 32; Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 66, Zondi paras 124–135.
  57. See 2000 (3) SA 936 (CC) para 70.
  58. See Zondi para 135.
  59. 2003 (5) SA 621 (CC) para 23.
  60. Compare the analogous (though not identical) situation regarding the death penalty: S v Makwanyane 1995 (3) SA 391 (CC) para 25, per Chaskalson P.
  61. As Ngcobo J points out in Xolisile Zondi v Member of the Executive Council for Traditional and Local Government Affairs (Constitutional Court, 15 October 2004): ‘… it must be borne in mind that whatever remedy a court chooses, it is always open to the legislature, without constitutional limits, to amend the remedy granted by the court’.