and Mr Berger and Ms Kathree appeared at the hearing and made oral submissions.
Evidence for respondents
[57]The respondents caused an affidavit to be filed on their behalf in which they asked that the application be dismissed with costs. In this affidavit it was averred that the magistrate who told the appellants that a ‘marriage’ between them would not be legally valid was correctly stating the law as it stands. It was also conceded that the Department of Home Affairs is not prepared to register the proposed marriage between the appellants. (It is clear that the Department's attitude in this regard is based on its contention regarding the validity of the intended marriage between the appellants. There is no reason to think that this attitude will be persisted in if the Department's contention on this point is not upheld.) The respondents did not deny the first appellant's statements regarding the practical difficulties the appellants experience in consequence of the fact that they are not married but contented themselves with putting the appellants to the proof thereof.
[58]The respondents ‘admitted’ that the common law prohibits members of the same sex from entering into a valid marriage relationship. They denied that the common law has developed to
