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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.It offers them the option of entering an honourable and profound estate that is adorned with legal and social recognition, rewarded with many privileges and secured by many automatic obligations.It offers a social and legal shrine for love and commitment and for a future shared with another human being to the exclusion of all others.
He said that South Africans and their elected representatives have for the greater part accepted the sometimes far-reaching decisions in regard to sexual orientation and other constitutional rights over the past ten years.
The legislature prescribed this formula, and its words cannot be substituted by ‘updating’ interpretation.
If the Court, and not Parliament, is to make a constitutionally necessary change to such a formula, that must be done not by interpretation but by the constitutional remedy of ‘reading-in’.
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.”Although considerations of saving costs and of an early and definitive decision of the disputed issues were in themselves weighty, they should not oust the important need for the common law, read in the light of the applicable statutes, to develop coherently and harmoniously within our constitutional context.