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
He said that such a relief, if sought, would clearly have raised
"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
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
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
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
Have your say in the chat forums
Bush opposes gay marriages
Most European countries recognise same-sex marriages
Vatican to call on Catholic politicians to oppose gay marriages
Oldest wedding magazine publishes first article on gay weddings
US poll: only 53% of Americans are against gay marriages
Gay couple unites in Argentina, a first for Latin America
Canadian govt seeks Supreme Court advice on gay marriages
New Zealand to legalise gay marriages, report
Bush: Constitutional ban on gay marriage not necessary - yet
UK unveils "gay marriages" plan