Page:Fourie v Minister of Home Affairs (SCA).djvu/33

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33

[47]In conclusion I would add that the Constitutional Court called in J for ‘comprehensive legislation’ regularising same-sex partnerships.[1] 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.[2] If this is not so, our unsuspended decision will not preclude later constitutionally sound legislation.[3]

[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.


Order

[49]The following order is made:


  1. 2003 (5) SA 621 (CC) para 23.
  2. Compare the analogous (though not identical) situation regarding the death penalty: S v Makwanyane 1995 (3) SA 391 (CC) para 25, per Chaskalson P.
  3. 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’.