“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 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.
The issue of cost now arises. Clearly the Applicants are liable for costs. The amicus curiae, as pointed out by counsel for the Respondents, entered the lists with great gusto and emotion. It made common cause with the Applicants. Its conduct went well beyond what is mentioned as proper in the constitutional judgment I have referred to above. I believe it is proper that it be ordered to pay costs.
In the result:
- The application is dismissed.
- The Applicants and the Lesbian and Gay Equality Project are ordered to pay the Respondent's cost jointly and severally. Such costs to include those consequent upon the employment of two counsel.
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