CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 60/04MINISTER OF HOME AFFAIRS First ApplicantDIRECTOR-GENERAL OF HOME AFFAIRS Second ApplicantversusMARIÉ ADRIAANA FOURIE First RespondentCECELIA JOHANNA BONTHUYS Second RespondentwithDOCTORS FOR LIFE INTERNATIONAL First amicus curiaeJOHN JACKSON SMYTH Second amicus curiaeTHE MARRIAGE ALLIANCE OF SOUTH AFRICA Third amicus curiaeCase CCT 10/05LESBIAN AND GAY EQUALITY PROJECTAND EIGHTEEN OTHERS ApplicantsversusMINISTER OF HOME AFFAIRS First RespondentDIRECTOR-GENERAL OF HOME AFFAIRS Second RespondentMINISTER OF JUSTICE ANDCONSTITUTIONAL DEVELOPMENT Third RespondentHeard on : 17 May 2005Decided on : 1 December 2005
SACHS JJUDGMENTSACHS J:INTRODUCTION[1]
Finding themselves strongly attracted to each other, two people went outregularly and eventually decided to set up home together. After being acknowledged by their friends as a couple for more than a decade, they decided that the time hadcome to get public recognition and registration of their relationship, and formally toembrace the rights and responsibilities they felt should flow from and attach to it.Like many persons in their situation, they wanted to get married. There was oneimpediment. They are both women.[2]
Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys are the applicantsin the first of two cases
1
that were set down for hearing on the same day in this Court.Their complaint has been that the law excludes them from publicly celebrating their love and commitment to each other in marriage. Far from enabling them to regularisetheir union, it shuts them out, unfairly and unconstitutionally, they claim.
1
Minister of Home Affairs and Another v Fourie and Another, with Doctors For Life International (first amicuscuriae), John Jackson Smyth (second amicus curiae) and Marriage Alliance of South Africa (third amicuscuriae)
CCT 60/04.
2
SACHS J[3]
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.”
2
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
3
have to be invoked. This, as contended for in the second case,
4
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.
5
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
wife
(
or
husband
)?’, 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
2
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.
3
Act 25 of 1961.
4
Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others
CCT 10/05.
5
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 . . . .”
3
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