Constitutional court of south afric a



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CONSTITUTIONAL COURT OF SOUTH AFRIC



A

Case CCT 25/03

MARIE ADRIAANA FOURIE First Applicant

CECELIA JOHANNA BONTHUYS Second Applicant


versus
THE MINISTER OF HOME AFFAIRS First Respondent
THE DIRECTOR GENERAL: HOME AFFAIRS Second Respondent

Decided on: 31 July 2003


JUDGMENT


MOSENEKE J:

Introduction

  1. The applicants seek leave to appeal directly in terms of Rule 18 of the Rules of this Court, against the judgment and order of Roux J made on 18 October 2002 in the Pretoria High Court. Roux J dismissed their application and ordered that the applicants and The Lesbian and Gay Equality Project, which intervened as amicus curiae, pay the respondents’ costs jointly and severally,1 such costs to include those consequent upon the use of two counsel. The applicants are both females who have been living together as partners in a permanent same-sex relationship since June 1994. In the application before the High Court, the applicants sought, first, a declaratory order that the “marriage” between them was legally binding in terms of the Marriage Act2 (the Marriage Act), provided that such marriage complied with the formalities prescribed in the Act; secondly, an order directing that the first and second respondents register their relationship as a marriage in terms of the Marriage Act and the Identification Act.3 The respondents opposed the application.



  2. The application appears to be premised on the assumption that the rule of law that barred same-sex marriages has, since the introduction of the Constitution, been developed to warrant the relief sought or that it should be developed to accord with the spirit, purport and objects of the Bill of Rights. Moreover, the applicants’ premise is that the rule amounts to an invasion of their constitutional rights to dignity4 and equality,5 including the right to be free from unfair discrimination.6



  3. The High Court dismissed the application on the ground that, to the extent that the applicants sought a declaratory order under section 19(1)(a)(iii) of the Supreme Court Act,7 the right that they sought to have determined was no more than an assumption that they were married and thus had no validity in law. The court held that, under the common law, marriage is the legal union of a man and a woman for the purpose of a lifelong mutual relationship and that the Marriage Act contemplates a marriage between a male and a female, to the exclusion of all others. The court concluded that to require the respondents to register their relationship as a marriage would be to compel them to do what is unlawful.



  4. Aggrieved by that decision, the applicants approached the High Court for a positive certificate under Rule 18(2) for leave to appeal directly to this Court and if refused, to the Supreme Court of Appeal (SCA). The High Court refused to issue a positive certificate but granted the applicants leave to appeal to the SCA. The applicants, have nevertheless, approached this Court in terms of Rule 18(7).



  5. The applicants contend that it is in the interests of justice that their appeal be heard directly by this Court. They submit that such leave should be granted on the grounds that, first, the High Court erred in approaching the claim for a declarator as discretionary relief under section 19(1)(a)(iii) of the Supreme Court Act rather than as a prayer for effective relief in terms of section 388 read together with section 1739 of the Constitution;10 secondly, a direct appeal to this Court would save substantial legal costs and provide a speedy and effective restoration of their constitutional rights to equality and dignity as well as the rights of other members of the homosexual community; thirdly, the equality and dignity jurisprudence of this Court has ripened to a stage where the prospects of success of their claim are high and the skill and experience of the SCA in developing the common law would be neither relevant nor necessary; and fourthly, this case raises important constitutional issues which deserve the attention of this Court to pronounce, in a holistic manner, on the constitutional rights of persons who are involved in permanent same-sex partnerships.



  6. The respondents have filed a notice of intention to oppose the present application.






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