Pre Hearing Media Summary

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA MINISTER OF HOME AFFAIRS AND ANOTHER v MARIE ADRIAANA FOURIE AND ANOTHER CCT 60/04; LESBIAN AND GAY EQUALITY PROJECT AND EIGHTEEN OTHERS v MINISTER OF HOME AFFAIRS AND OTHERS, CCT 10/05

MEDIA SUMMARY The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. Two separate matters bearing on the right of same-sex couples to marry will be heard by the Constitutional Court on 17 May 2005. The first concerns an appeal by the Minister of Home Affairs against a decision given in the Supreme Court of Appeal [SCA] to the effect that the common law definition of marriage discriminates unfairly against same-sex couples who wish to marry by defining marriage as the union for life between a man and a woman. Cameron JA, writing for the majority, held that the exclusionary definition of marriage injured gays and lesbians by suggesting not only that their relationships, commitments and loving bonds were inferior, but that they themselves could never be fully part of the community of moral equals promised by the Constitution. In his view, the Court itself should develop the common law so as to remove the unconstitutionality. While Farlam JA agreed that the exclusion of same-sex couples from marriage was unconstitutional, he was of the opinion that Parliament should be given time to consider the various options for law reform in this area outlined by the South African Law Reform Commission. The Minister of Home Affairs has applied for leave to appeal on the grounds that the SCA violated the principle of separation of powers by itself developing the common law, bearing in mind that a fundamental change in the traditional concept of marriage was involved; alternatively, the majority erred in not suspending its order. Ms Fourie and Ms Bonthuys, who have lived together in a committed relationship of mutual support since 1994, and who initially brought the proceedings in the Pretoria High Court, seek to cross-appeal. They contend that although the SCA found that the common law definition of marriage was unconstitutional, it failed to provide them with the means whereby they could be married in terms of the Marriage Act. Doctors For Life International have been admitted as amicus curiae and allowed to make written submissions. John Jackson Smyth, who is their legal representative, has also been admitted as amicus curiae and permitted to make both written and oral submissions. The Marriage Alliance of South Africa, supported by Cardinal Wilfred Napier, has been admitted as amicus curiae with permission to make written and oral submissions, but not to lead further evidence. The second matter to be heard deals with the vow in the Marriage Act which prescribes the use by the parties to the ceremony of the words ‘husband’ and ‘wife’. An application to declare the formula unconstitutional and to rectify it so as to make provision for same-sex couples, brought by the Lesbian and Gay Equality Project, was due to be heard in the Johannesburg High Court later this year. The Equality Project has applied for leave for the matter to be heard directly by the Constitutional Court. This application has been set down for hearing in the Constitutional Court together with the above matter.

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This application is being opposed by the Minister of Justice and Constitutional Development, who is applying for condonation of late notification of opposition. The Acting Director General of the ministry states that the unified position between her ministry and the ministry of Home Affairs is as follows: the concession made in earlier proceedings on behalf of the ministry of Home Affairs that the common law definition of marriage unjustifiably discriminates against same-sex couples, is withdrawn; the consequences of redefining marriage in the common law have not been raised or fully ventilated in the applications before the Constitutional Court, and any ruling should be deferred in the light of concerns raised and to allow the democratic process to take its course; alternatively, should the Court hold that it is obliged to make an order that the common law definition of marriage and the challenged provisions of the Marriage Act are inconsistent with the Constitution, such order should be suspended for a lengthy period to allow for comprehensive public participation and for the government, if necessary, to approach the Court once this process has been completed.

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