of marriage is the solace and satisfaction of man [by which I take it he meant humankind].’
[85]Mr Oosthuizen, who appeared for the appellants, submitted that our law and societal practice grants many rights and privileges to married persons because they are married. Mr Sithole, for the respondents, did not dispute this. It is clear therefore that our law, in terms of the common law definition to which I have referred, permits heterosexual persons to enter a conjugal society as described by Viscount Stair, by Modestinus and Justinian, it recognises and protects that relationship in many ways, and grants the parties thereto many legally enforceable rights and privileges.
[86]It will be recalled that s 9(1) of the Constitution provides that everyone has the right to equal protection and benefit of the law, while s 9(3) lists among the proscribed grounds of discrimination sexual orientation. Homosexual persons are not permitted in terms of the common law definition to marry each other, however strong their yearning to establish a conjugal society of the kind described. As a result they are debarred from enjoying the protection and benefit of the law on the ground of their sexual orientation. This clearly constitutes discrimination within the meaning of s 9 of the Constitution.
