They contend that the exclusion comes from the common law definition whichstates that marriage in South Africa is “a union of one man with one woman, to theexclusion, while it lasts, of all others.”
The common law is not self-enforcing, and inorder for such a union to be formalised and have legal effect, the provisions of theMarriage Act
have to be invoked. This, as contended for in the second case,
iswhere the further level of exclusion operates. The Marriage Act provides that aminister of religion who is designated as a marriage officer may follow the marriageformula usually observed by the religion concerned.
In terms of section 30(1) other marriage officers must put to each of the parties the following question:
“‘Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present towitness that you take C.D. as your lawful
)?’, and thereupon the parties shall give each other the right hand and the marriage officer concerned shalldeclare the marriage solemnized in the following words: ‘I declare that A.B. and C.D.here present have been lawfully married.’” (My emphasis.)
The reference to wife (or husband) is said to exclude same-sex couples. It was notdisputed by any of the parties that neither the common law nor statute provide for any
As articulated by Innes CJ in
Mashia Ebrahim v Mahomed Essop
1905 TS 59 at 61. In other cases theexclusion is said to be “for life”. See for example
Hyde v Hyde and Woodmansee
1866 LR 1 P and D 130 at133;
Seedat’s Executors v The Master (Natal)
1917 AD 302 at 309 and
Ismail v Ismail
1983 (1) SA 1006 (A) at1019. Given the high degree of divorce this would seem to be a misnomer.
Act 25 of 1961.
Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others
Section 30(1) states in this regard:“[A]ny marriage officer designated under section 3 may follow the marriage formula usuallyobserved by his religious denomination or organization if such marriage formula has beenapproved by the Minister . . . .”