Authored By: Ntando Madonsela
North West University
CASE SUMMARY: Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others [2005] ZACC 19
DATE OF JUDGEMENT: 1 December 2005
This landmark Constitutional Court decision recognised that the exclusion of same-sex couples from civil marriage in South Africa contravened the constitutional rights to equality and human dignity. Justice Albie Sachs, delivering the unanimous judgment, found both the common law definition of marriage as a union between one man and one woman and section 30(1) of the Marriage Act 25 of 1961 to be unconstitutional. The Court suspended its declaration of invalidity for twelve months to provide Parliament with an opportunity to enact appropriate legislation. This process resulted in the Civil Union Act 17 of 2006, which legalised same-sex marriage. The decision represents a foundational moment in transformative constitutionalism and underscores South Africa’s commitment to equality, human dignity, and diversity.1
Court Name and Bench
Court: Constitutional Court of South Africa
Judges: Sachs J (majority judgment); Langa CJ, Moseneke J, Mokgoro J, Ngcobo J, O’Regan J, Skweyiya J, Van der Westhuizen J, and Yacoob J concurring.
Parties Involved
Applicants (Fourie Case): Minister of Home Affairs and Director-General of Home Affairs Respondents (Fourie Case): Marie Adriaana Fourie and Cecelia Johanna Bonthuys Applicants (Equality Project case): Lesbian and Gay Equality Project and Eighteen Others Respondents (Equality Project case): Minister of Home Affairs, Director-General of Home Affairs, and Minister of Justice and Constitutional Development
Facts of the Case
Marié Fourie and Cecelia Bonthuys, both South African citizens, had been in a long-term, loving relationship for over a decade. They sought to solemnise their relationship through marriage but were denied the opportunity because South African law, both statutory and common, recognised marriage exclusively as a heterosexual union. The common law definition of marriage, derived from Roman-Dutch law, defined marriage as “a union between one man and one woman, to the exclusion, while it lasts, of all others.”2
Similarly, section 30(1) of the Marriage Act 25 of 1961 required that during the marriage ceremony, the marriage officer ask the parties whether they take each other as “husband” and “wife.”3 As a result, same-sex couples could not legally marry, leaving them without access to numerous legal, social, and economic benefits associated with marriage.
Fourie and Bonthuys challenged these provisions in the Supreme Court of Appeal (SCA), which agreed that the exclusion was discriminatory but held that Parliament, rather than the judiciary, should be responsible for legislative reform. Dissatisfied with this limited relief, the couple appealed to the Constitutional Court, while the Lesbian and Gay Equality Project launched a parallel challenge, seeking an immediate constitutional remedy.4
Both cases were consolidated before the Constitutional Court. The applicants argued that the exclusion violated section 9, the right to equality and section 10, the right to human dignity, of the Constitution of the Republic of South Africa. The State opposed the application, asserting that the institution of marriage was inherently heterosexual and that any redefinition should be left to Parliament, given its social and moral implications.5
Legal Question
Whether the common law definition of marriage and section 30(1) of the Marriage Act violated section 9 of the Constitution of the Republic of South Africa.
Whether such exclusion violated the right to human dignity under section 10.
Whether the appropriate remedy should be immediate judicial intervention or suspension for legislative reform.6
Arguments of the Parties
Applicants
The State argued that the Constitution does not explicitly guarantee marriage rights but rather safeguards individual freedoms such as privacy and association. They argued that marriage has traditionally been defined as between a man and a woman in South African culture and society, and changing this definition would be a significant departure from tradition. It further argued that same-sex marriage involved complex moral, social, and religious dimensions, which should be debated and decided by Parliament rather than imposed by judicial decree.7 Granting same-sex couples access to marriage, the State argued, might conflict with the beliefs of various religious communities and disturb the social consensus underpinning family law.
Respondents (Fourie, Bonthuys, and Equality Project)
The Respondents argued that excluding same-sex couples from marriage was a direct violation of section 9(3) of the Constitution, which prohibits unfair discrimination on the grounds of sexual orientation.8 They submitted that such exclusion demeaned their human dignity by implying that their relationships were inferior and unworthy of recognition.9
They also argued that marriage is a social and legal institution through which individuals express commitment and gain recognition. Denying same-sex couples access to it perpetuated systemic inequality and reinforced social stigma. The Respondents therefore requested the Court to:
Develop the common law definition of marriage to mean “a union between two persons to the exclusion of all others.”
Read the words “or spouse” into section 30(1) of the Marriage Act, allowing same-sex couples to marry under the same legal framework as heterosexual couples.10
Judgement
The Constitutional Court unanimously ruled that both the common law definition of marriage and section 30(1) of the Marriage Act were unconstitutional and invalid.11 Sachs J concluded that their exclusion of same-sex couples constituted unfair discrimination that infringed the rights to equality and dignity in terms of section 9 and section 10 respectively.12
However, recognising the significance of the issue and the principle of separation of powers, the Court suspended the declaration of invalidity for 12 months, giving Parliament time to enact legislation remedying the constitutional defect.13 Sachs J explained that this suspension respected Parliament’s role in crafting policy while ensuring that constitutional rights would be realised within a reasonable timeframe.
The Court ordered that, should Parliament fail to act within the 12-month period, section 30(1) would automatically be amended by the insertion of the words “or spouse”, thereby extending the institution of marriage to same-sex couples.14
Ratio Decidendi
The Court’s decision was based on the founding values of the Constitution, human dignity, equality, and freedom, and in the principle that all persons are equal before the law.15 The court rejected the argument by the State that the Constitution only protected heterosexual marriages, holding that the Bill of Rights protects individuals, regardless of sexual orientation.
It was further emphasized that the exclusion of same-sex couples from marriage perpetuated “systemic disadvantage” and conveyed a message that same-sex relationships were less worthy or respect and recognition.16 Sachs J noted that the Constitution seeks to transform South Africa from a society based on exclusion and hierarchy to one founded on inclusivity and respect for difference.17
The court cited the following previous judgements that progressively dismantled legal barriers against sexual minorities:
J v Director General, Department of Home Affairs (2003), which recognised parental rights for same-sex partners18
Satchwell v President of the Republic of South Africa (2002), which extended employment benefits to same-sex partners;19 and
Du Toit v Minister of Welfare and Population Development (2002), which allowed same-sex couples to adopt.20
Through the above precedents, the Court had consistently affirmed the equality and dignity of same-sex couples, making exclusion from marriage the final legal barrier to full equality.
Sachs J also addressed religious objections, noting that freedom of religion under section 15 of the Constitution protects the right of religious institutions to define marriage for themselves, but does not permit the State to impose religious morality through civil law.21 The ruling thus maintained a distinction between civil marriage, governed by state law, and religious marriage, governed by faith communities.
Sachs further reasoned that marriage is a social institution of profound importance, not merely a private contract. It confers legitimacy, social recognition, and numerous material benefits.22 Denying same-sex couples access to this institution relegated them to “a condition of second-class citizenship.”23
In deciding the remedy, the Court balanced judicial authority and legislative responsibility. While it had the power to read words into the statute immediately, Sachs J held that Parliament should have an opportunity to engage in democratic debate. This approach demonstrated judicial restraint, ensuring that constitutional principles guided the legislative process rather than bypassing it.24
Observation
The Fourie judgment is a defining milestone in South Africa’s journey toward equality and human rights protection. It reaffirmed that the Constitution protects all individuals, irrespective of sexual orientation, and that the right to marry is integral to human dignity and autonomy.
The Court’s reasoning exemplified transformative constitutionalism, a concept embraced in South African legal discourse, which views the Constitution as a living document aimed at reshaping society to achieve substantive equality.25 By recognising same-sex marriage, the Court not only advanced the rights of LGBTQ+ individuals but also deepened South Africa’s commitment to democratic inclusivity.
Following the judgment, Parliament enacted the Civil Union Act 17 of 2006, legalising same-sex marriage and creating a unified framework for both heterosexual and homosexual couples to marry.26 South Africa thus became the first African nation to recognise marriage equality, setting a powerful precedent for the continent.
The decision remains one of the Constitutional Court’s most eloquent affirmations of equality, dignity, and freedom. It underscores that constitutional democracy requires not merely formal equality but the transformation of social relations to ensure genuine inclusion. As Sachs J wrote, “The Constitution represents a society that celebrates difference rather than tolerates it.”27
Bibliography
Case Law
Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others [2005] ZACC 19; 2006 (1) SA 524 (CC)
Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC)
Du Toit and Another v Minister of Welfare and Population Development and Others 2003 (2) SA 198 (CC) J and Another v Director General, Department of Home Affairs, and Others 2003 (5) SA 621 (CC)
Legislation
Constitution of the Republic of South Africa, 1996
Marriage Act 25 of 1961
Civil Union Act 17 of 2006
Secondary sources
K Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 150
1 Minister of Home AƯairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home AƯairs and Others [2005] ZACC 19, 1- 3.
2 Fourie (n 1) 5.
3 Marriage Act 25 of 1961 s 30(1).
4 Fourie and Another v Minister of Home AƯairs and Others 2005 (3) SA 429 (SCA).
5 Fourie (n 1) 33.
6 Fourie (n 1) 45.
7 ibid 34.
8 Constitution of the Republic of South Africa, 1996 s 9(3).
9 Fourie (n 1) 59.
10 ibid 64.
11 ibid 137.
12 ibid 85–88
13 ibid 156.
14 ibid 161.
15 Constitution of the Republic of South Africa, 1996 s 1(a).
16 Fourie (n 1) 60.
17 Ibid 61.
18 J and Another v Director General, Department of Home AƯairs, and Others 2003 (5) SA 621 (CC).
19 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC).
20 Du Toit and Another v Minister of Welfare and Population Development and Others 2003 (2) SA 198 (CC).
21 Fourie (n 1) 95.
22 Ibid 63.
23 Ibid 64.
24 Ibid 159.
25 Karl E Klare (Professor of Law) (1998) Legal Culture and Transformative Constitutionalism, South African Journal on Human Rights, 14:1, 150.
26 Civil Union Act 17 of 2006.
27 Fourie (n 10) 60.
