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.
