[87]Mr Sithole contended that this conclusion is not correct. He argued that the common law definition does not discriminate against homosexuals because it does not prevent them from marrying. Reliance was placed on a dictum by Southey J, with whom Sirois J concurred, in Re Layland and Minister of Consumer and Commercial Relations; Attorney-General of Canada et al., Interveners.[1]
The dictum relied on reads as follows:
‘The law does not prohibit marriage by homosexuals, provided it takes place between persons of the opposite sex. Some homosexuals do marry. The fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of the law.’
[88]This approach to the matter was expressly rejected by Ackermann J in the Home Affairs case[2] at para 38 where he said:
‘The respondents' submission that gays and lesbians are free to marry in the sense that nothing prohibits them from marrying persons of the opposite sex, is true only as a meaningless abstraction. This submission ignores the constitutional injunction that gays and lesbians cannot be discriminated against on the grounds of their own sexual orientation and the constitutional right to express their orientation in a relationship of their own choosing.’ (The italics are mine.)
