Authored By: Sbongakonke
University of Zululand
CASE SUMMARY:
MINISTER OF HOME AFFAIRS AND ANOTHER v FOURIE AND ANOTHER (CCT 60/04) [2005] ZACC 19, 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005)
South Africa: Constitutional Court
Judges: SACHS J, ROUX J, Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, Skweyiya J, Van der Westhuizen J and Yacoob J.
Constitutional Court Bench
Head on: 17 May 2005
Decided on: 1 December 2005
Minister of Home Affairs as the first applicant and Directo-General of Home Affairs as the second applicant of Pretoria brought this case to court against Marie Adriana Fourie as the first respondent and Cecelia Johanna Bonthuys as the second respondent.
Acouple who findsthemselves strongly attached to each other decided to start a family together after being acknowledged by their friends as a strong couple that have lasted for more than a decade. They wanted to make their relationship formal by getting married and embrace responsibilities of a marriage, however an impediment existed that they were both women.
They raised complains that the law unfairly discriminates them as it excludes same sex couples from legalising their union.1
They raised that the common law definition of marriage is the one that excludes them as it states that the marriage in South Africa is “a union of one man and women to the exclusion of others.” The common law excludes same sex couples (gays and lesbians).2
These facts raise the issues of whether the failure by common law and Marriages Act to provide the means for the applicants and other same sex couples to marry each other amount to denial of equal protection of the law and unfair discrimination by the state on ground of sexual orientation? And if it does, what is the appropriate remedy a court should order.
The applicants asked for an order declaring that the law must recognise their right to get married and ordering the Minister of Home Affairs and Director-General to register their marriage in terms of the Marriages Act.3 They however did not want to challenge the common law neither section 30(1) of the Marriage Act.4 Section 30(1) could not be easily challenged because asking the Minister of Home Affairs to register a same sex marriage while the law prescribes the opposite sex marriage is the one to be registered would constitute a request to do what is unlawful.5
The court raised more complex issues as the applicants omitted to address all the consequences that would flow from the legalisation of such union. The applicants only wanted the common law to be developed to benefit them but did not consider the consequences that might come with that.6
However, it was established that gays and lesbians had suffered a great pattens of disadvantage and exclusion from many benefits inside a marriage and are now exclusively reliant in the Bill of right for protection. They have faced severe discrimination, affecting their dignity, personhood and identity in many levels. Same sex partners are entitled to a legally recognised relationship that accord their sexual orientation as they are the same human beings as heterosexual partners, capable of sharing love and building a family. The acknowledgment and acceptance that the same sex couples are doing things differently is important in our society, as South Africa had serious battles of different skin colour with its advantage and disadvantages, but after extensive legal analysis, it came to light that being different is part of life. Accepting the differences of other is part of development in our county.7
The exclusion of same sex partners from common law definition implies not only that their love sharing and commitment is inferior but also that they can never form part of the community of morals of equals that the constitution promises.8
The applicants further submitted that the Marriage Act is inconsistent with the constitution and must be declared invalid to the extent that it makes no provisions for same sex couples to enjoy the benefits and entitlements that are accorded to heterosexual partners. However, the states argues that the Marriage Act hold no fault but the law that creates institutions which provides certain entitlements to heterosexual partners that does not extend to same sex partners.9It was also wrongly proven that there is no justification in terms of section 36 0f the constitution10 that exist for the violation of the equality (section 9)11 and dignity (section 10) rights of these couples.12
Having considered the facts and heard arguments from both parties the court concludes that, the failure of common law and Marriage Act to provide means for same sex couples to enjoy same benefits, status, responsibilities and entitlements that are accorded to heterosexual couples through marriage constitutes unjustified violation of their right to equality and equal protection under the law and not to be unfairly discriminated in terms of section 9 of the constitution.13
In terms of section 172(1)(a) of the constitution the court declared section 30(1) of the Marriage Act and section 9(1), (3) of the constitution inconsistent with the constitution to the extent that it discriminate against same sex couples on the ground of sexual orientation, and ordered the legislature to remove discrimination on the ground of sexual orientation and enact a legislation that afford same sex partners the same benefits as the heterosexual partners; this was to be done by including same sex couples in common law definition and in the Act.14 The common law definition of marriage was also declared invalid and unconstitutional to the extent that it fails to provide to same sex couples the same status, responsibilities and benefits as accorded to heterosexual couples.
The basis for court’s decision revolved around unconstitutionality of section 30(1) of the Marriage Act which provides the questions asked to the parties when solemnising the marriage and makes a reference to wife (or husband) and contemplates that a marriage is between a male and a female which is said to exclude same sex couples.15 This amount to unfair discrimination.
Common law definition of marriage and section 30(1) of the Marriage Act directly violates section 9(1) of the constitution which provides that everyone is equal before the law and has the right to equal protection and benefit of the law, and also section 9(3) which expressly prohibits unfair discrimination on the grounds of sexual orientation by not affording the same status, benefits and responsibilities to same sex couples as accorded to heterosexual couples.16
Equality is important as family, having considered that every relationship have ups and down, same sex and heterogenous couples experience the same relationships. If the relationship of couples ends after having married, they receive benefits and consequences of divorce, therefore the same sex couples deserve a right to legalise their relationship by getting married so that they can also benefit from divorce if the marriage relationship reaches the stage of disintegration.17 Even if the marriage dissolve by death of another party, the law recognise that and provide benefits of a marriage to the surviving spouse, like maintenance.
The Constitution gives powers to courts to develop common law if it’s in the interest of justice.18 The Bill of Rights provides19 that when courts apply the provisions of bill of rights, to give effect to it a court must apply or develop common law if necessary to be in line with the constitution and its limitations be in accordance with limitations provisions under section 36 of the constitution.20 Therefore, the declaratory functions on which the courts puts a final touch on are part of common law development.
The act of excluding same sex couples from the common law definition of marriage was the real defect that existed in our legal system when it comes to marriage not the said defect of being of same sex. Same sex couples are human beings, SA citizens and part of our community, and they deserve to be treated the same as everyone, afforded same benefits and entitlements like heterosexual couples.
Our constitution has been developing since it was intact and there is much need to look at interconnected issues like discrimination. The issue of racial discrimination was resolved and it’s surprising to find another form of discrimination within people who fought the discrimination that existed between different races and now are using it against each other.
Permitting those who have been excluded from marrying to marry can foster a society based on human dignity equality and respect for everyone.
Developing the law the only possible way to solve the issue and get away with this. I see no possible reasonable objection because the declaration made by the court that burns down the discrimination is the reflection of our reasonable law.
Bibliography
Cases
Minister of Home Affairs & Another v Fourie & Another 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC), [2005] ZACC 19,
Legislation
Marriage Act 25 of 1961 (S. Afr.),
Constitution
Constitution of the republic of South Africa, 1996, s 8(3), 9(1), 9(3), 10, 36, 172(1)(a),173.
1 Minister of Home Affairs v Fourie, [2005] ZACC19, 2006 (1) S.A. 524 (CC)
2Id at para 3
3 Marriage Act 25 of 1961, (s. Afr.).
4 Marriage Act 25 of 1961, s 30(1) (S. Afr.).
5Id at para 6
6Id at para 9
7Id at para 13
8Id at para 17
9Id at para 26
10 S. Afr. Const., 1996, s 36.
11 S. Aft. Const., 1996, s 9.
12 S. Afr. Const., 1996, s 10.
13 Id at para 114
14 S. Afr. Const., 1996, s 172 (1)(a).
15 Id at para 3
16 Id at para 5
17 Id at para 73
18 S. Afr. Const., 1996 s 173.
19 S. Afr. Const., 1996, s 8(3).
20 S. Afr. Const., 1996, s 36.
