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The application for leave to appeal directly to this Court was accordingly refused. The reasons for coming to this conclusion diverged in certain significant respects, however, resulting in different approaches being taken as to the order to be made.
that when applying a provision of the Bill of Rights to a natural or juristic person a court, in order to give effect to a right in the Bill, “must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right” though it may develop the rules of the common law to limit the right in accordance with the limitations provision in section 36(1).
CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 60/04 MINISTER OF HOME AFFAIRS First Applicant DIRECTOR-GENERAL OF HOME AFFAIRS Second Applicantversus MARIÉ ADRIAANA FOURIE First Respondent CECELIA JOHANNA BONTHUYS Second Respondentwith DOCTORS FOR LIFE INTERNATIONAL First amicus curiae JOHN JACKSON SMYTH Second amicus curiae THE MARRIAGE ALLIANCE OF SOUTH AFRICA Third amicus curiae Case CCT 10/05LESBIAN AND GAY EQUALITY PROJECTAND EIGHTEEN OTHERS Applicantsversus MINISTER OF HOME AFFAIRS First Respondent DIRECTOR-GENERAL OF HOME AFFAIRS Second Respondent MINISTER OF JUSTICE ANDCONSTITUTIONAL DEVELOPMENT Third Respondent Heard on : Decided on : 1 December 2005 JUDGMENT SACHS J: INTRODUCTION Finding themselves strongly attracted to each other, two people went out regularly and eventually decided to set up home together. here present have been lawfully married.’” (My emphasis.)The reference to wife (or husband) is said to exclude same-sex couples.
After being acknowledged by their friends as a couple for more than a decade, they decided that the time had come to get public recognition and registration of their relationship, and formally to embrace the rights and responsibilities they felt should flow from and attach to it. that were set down for hearing on the same day in this Court. It was not disputed by any of the parties that neither the common law nor statute provide for any legal mechanism in terms of which Ms Fourie and Ms Bonthuys and other same-sex couples could marry.
The task of applying the values in the Bill of Rights to the common law thus requires the courts to put its faith in both the values themselves, as well as in the people whose duly elected representatives created a visionary and inclusive constitutional structure that offered acceptance and justice across diversity to all.
Consequently the applicants could not be married as required by the law.Legislative developments, he continued, have ameliorated but not eliminated the disadvantages same-sex couples suffer.More deeply, the exclusionary definition of marriage injures gays and lesbians because it implies a judgment on them.It also provides that when developing the common law the Court must promote the spirit, purport and objects of the Bill of Rights.Taken together, these provisions create an imperative normative setting that obliges courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Where the common law is deficient, the courts are under a general obligation to develop it appropriately.