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Constitutional Court dismisses lesbian couple's application

July 31, 2003

JOHANNESBURG - The Constitutional Court dismissed on Thursday a lesbian couple's application for leave to appeal against the Pretoria High Court's refusal to legalise their "marriage".

The Constitutional Court said in its judgment the couple's appeal raised important questions relating to South Africa's common law, which should first be considered and determined by the Supreme Court of Appeal.

Marie Fourie, a carpet technologist, and her same-sex partner, nurse Cecilia Bonthuys, lost their groundbreaking application against the Minister of Home Affairs when Pretoria High Court Judge Pierre Roux dismissed it in October last year.

The couple believed the rule of law amounted to an invasion of their constitutional rights to dignity and equality, including the right to be free from unfair discrimination.

The couple had sought a declaratory order from the high court that their "marriage" was legally binding in terms of the Marriage Act, provided that it complied with the prescribed formalities of the act. They also wanted an order directing the minister to register their relationship as a marriage in terms of the Marriage Act and the Identification Act.

The high court dismissed the application on the grounds that the "marriage" was invalid under common law and was not covered in the Marriage Act which contemplated the union of a man and woman to the exclusion of all others.

The couple asked the high court to grant them leave to appeal directly to the Constitutional Court, and if refused, to the appeal court. The high court only allowed them to seek recourse through the appeal court.

Bonthuys and Fourie contended that it was in the interest of justice that the Constitutional Court hear their appeal directly, and it would save substantial legal costs and provide a speedy and effective restoration of their constitutional rights and those of the broader homosexual community.

The couple also felt their case raised important constitutional issues which deserved the court's attention.

Constitutional Court judge Dikgang Moseneke's judgment said that before the high court, the couple did not seek a declaration that the acts were inconsistent with the Constitution or an order that common law should be developed to provide for same-sex partnerships.

He said that such a relief, if sought, would clearly have raised constitutional matters.

"It seems to me that the relief they required can be achieved only if both the common law and the relevant statutory infrastructure is developed or amended to permit marriage between gay and lesbian couples," Moseneke said.

"However, neither in their notice of motion, nor in their founding affidavits, nor in their written argument before the high court, did the applicants advance a challenge to statutory infrastructure."

He said the appeal was likely to raise complex and important questions of the legal conformity of South Africa's common law and statutory rules of marriage in the light of the Constitution. "Marriage and its legal consequences sit at the heart of the common law of persons, family and succession and of the statutory scheme of the Marriage Act.

"Moreover marriage touches on many other aspects of law, including labour law, insurance and tax.

"These issues are of importance not only to the applicants and the gay and lesbian community, but also to society at large," the judge said.

He said although some of the issues raised by the couple were weighty, they should not oust the important need for the common law to develop coherently and harmoniously within the country's constitutional context.

The views of the appeal court in matters that arose in the appeal were of considerable importance.

The couple urged that should the Constitutional Court refuse leave for a direct appeal, it should grant them leave to appeal to the appeal court.

However, Moseneke said such an order would be neither competent nor necessary, and the high court had already granted the couple leave to appeal to the appeal court.

Moseneke said that in his view it would not be appropriate to make any order as to costs.

The other Constitutional Court judges concurred with Moseneke's judgment. -Sapa

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