Authored By: Ennie
University of South Africa
Minister of Home Affairs and Another v Fourie and Another, ZACC 19; 2006(3) BCLR(CC); 2006(1) SA 524 (CC) The Constitutional Court of South Africa (9-Judge Bench) Decided on December, 1,2005
Introduction
The case of “Minister of Home Affairs and Another v Fourie and Another” was a turning point Constitutional court case on dignity, equality and marriage in South Africa.[1] The case handled whether the common law meaning of marriage and the Marriage Act 25 0f 1961, which restricted marriage to heterosexual couples were constant with the constitution.[2]
This case is important because it was the first time a higher court in Africa stated that excluding same-sex couples from getting married violated Constitutional rights.[3] The case fits into Constitutional law, specifically the Bill of Rights section 9 which is about equality and section 10 which is about dignity. It is important because it led to Parliament passing the Civil Union Act 17 of 2006, giving legal recognition to same-sex marriages in South Africa.[4]
Facts of the case
The case combined two applications the first applicants were Fourie and Cecelia Bonthuys, they were a same sex couple in a lasting relationship. In 2002 they applied to the Pretoria High Court to formalize their marriage but were refused because the traditional meaning of marriage in South Africa defined as a union between “one man and one women” the Marriage Act only provided for opposite-sex unions.[5]
The second applicants were the Lesbian and Gay Equality project and 18 other same-sex couples.[6] They argued that both the common law definition of marriage and section 30(1) of the Marriage Act unfairly discriminated against them by denying them the right to get married.[7]
Furthermore, the couple approached the Pretoria High Court arguing that the ban violated their constitutional rights namely section 9 which deals with equality and section 10 which states that “ Everyone has inherent dignity and the right to have their dignity respected and protected”.[8] The High Court rejected the couple’s application, holding that marriage under common law and the Marriage Act was solely between a man and a women, the couple then appeal to some degree stating that the common law ban of same-sex couples constituted unfair discrimination.[9]
Moreover, the minister of home affairs appealed the SCA’s decision to the constitutional court, while the applicants cross-appealed to address the legal limitations of the Marriage Act.[10] The government argued that marriage was a traditional social institution and that any comprehensive reforms should be left to democratic debate in parliament.[11]
Legal issues
There are 3 main issues identified in this case. Issue one questions whether the common law description of marriage that describes marriage as “the union of one man with one woman to the exclusion of all others for life”[12] infringes section 9(1), 9(3) and 10 of the constitution of 1996 by banning same-sex couples from the status, entitlements and responsibilities of marriage.[13]
Furthermore, issue two is whether section 30(1) of the Marriage Act 25 of 1961, that gives the marriage formula using gender-specific language “husband and wife” is incompatible with section 9 and 10 of the constitution to the degree that it makes no plan for same-sex couples to marry.[14]
Lastly, in issue three the case raises the question to what is the proper and just solution under section 172(1)(b) of the constitution where the law is found unlawful whether the court should grant immediate relief to the applicants or pause the declaration of invalidity to allow parliament time to rectify the defect.[15]
Arguments presented
- The appellant’s arguments: The minster of Home Affairs
The minister of home affairs stated that it was not suitable for the judiciary to bring about a significant change to the institution of marriage, this was a matter that should be left to parliament.[16] The state maintained that changing the meaning of marriage and the marriage formula in the Act required legislative action and not judicial development.
Moreover, the government argued against an instant solution .They wanted the legislature to hand the matter , they also considered that the issue affects society as well.[17] The case was not ready for a decision because the public needed more time to debate about the issue.[18]
- The respondent’s argument: The couple/ Equality project
The respondents maintained that the ban of same-sex couples from marriage resulted to unfair discrimination on the ground of sexual orientation and was therefore violating section 9 of the constitution.[19] They also maintained that section 9(1), 9(3) and 10 required equal protection and benefit of the law as well as dignity and that these rights were ignored when same-sex couples want to formalize their marriage.[20] In the cross-appeal to the SCA the respondents backed the SCA’s development of the common law description to include them but protested to the suspension.[21] They argued that the court should help them immediately because the Marriage Act still prevented them from getting married. In support of their case, they made use of the Bill of Rights and the principle that courts must establish common law in line with the constitution; they also referred to the SALRC memorandum showing prolonged public engagement had already occurred.[22]
Court’s reasoning and analysis
The court stated that not allowing same-sex couples to get married violates the rights to equality and dignity in section 9 and 10 of the constitution.[23] The old description of marriage and section 30(1) of the Marriage Act was not just. The words “husband and wife” only include couples of the opposite sex and excluded couples of the same sex from the same rights and benefits.[24] The court made use of earlier court case such as Harksen v Lane and Hugo to examine if the discrimination was unfair and also used S v Bhulwana which states people who win a case should usually get what they asked for.[25]
Furthermore, the court did not agree with the government that only parliament should change marriage laws.[26] It stated that the courts must intervene when the constitution is being broken but the court also agreed that parliament should be given time to establish new laws.[27]The court declared the law invalid and gave parliament 12 months to rectify it.[28]
Judgment and Ratio Decidendi
The court backed up the appeal comparatively , it maintained that the common law description of marriage and section 30(1) of the Marriage Act inconsistent with the constitution to the degree that the overlooked same-sex couples.[29] Parliament was given 12 months to correct the issue and if they did not rectify it section 30(1) would include “or spouse” after “ or husband”.[30] The applicants were entitled to instant compensation but the implementation was delayed for legislative reasons reform.
Furthermore, the reason for this judgement was because the court viewed the ban of same-sex couples from getting married as unfair discrimination and a violation of section 9 and 10 of the constitution. [31] Future courts must establish marriage laws that include same-sex couples and not exclude them .[32]
Critical analysis
This case was a landmark judgment that expanded full marriage rights to same-sex couples in South Africa , making it the first country to achieve this. The decision extended constitutional law by affirming that family and marriage is not fixed and must develop with constitutional values . It established that courts are able and must come in to protect the minorities. [33]
Additionally, the judgment directly led to the Civil Union Act of 2006. To somewhat extent it gave same-sex couples access to all marriage benefits, and it confirmed the dignity of the LGBTQ+ individuals. It will influence all future family law and anti-discrimination cases.[34]
Furthermore, the court could have approved instant relief and left parliament to regulate details rather than pausing it.
In conclusion, the constitutional court found that overlooking same-sex couples from getting married violated their rights to equality and dignity in the constitution. The key takeaway from the case is that the constitution protects everyone, The Bill of Rights ensures equality and protection to everyone.
Furthermore, the judgment in the case showed that courts should protect minority rights from majority bias. Even though the case solved the issue of marriage future legislation will need to handle equality in family law and the balance between religious freedom and non-discrimination.[35]
Reference(S):
. Minister of Home Affairs and Another v Fourie and Another ZACC 19, 2005(3) SA 429 (CC) ; 2006 (1) SA 524 (CC); 3 BCLR 355 (CC)
. Constitution of the republic of South Africa 1996, s10
[1] Minister of Home Affairs and Another v Fourie and Another ZACC 19, 2005(3) SA 429 (CC) ; 2006 (1) SA 524 (CC); 3 BCLR 355 (CC)
[2] Minister of Home Affairs v Fourie [2005] ZACC 19
[3] Minister of Home Affairs v Fourie [2005] ZACC 19
[4] Minister of Home Affairs v Fourie [2005] ZACC 19
[5] Minister of Home Affairs v Fourie [2005] ZACC 19
[6] Minister of Home Affairs v Fourie [2005] ZACC 19
[7] Minister of Home Affairs v Fourie [2005] ZACC 19
[8] Constitution of the republic of South Africa 1996, s 10
[9] Minister of Home Affairs v Fourie [2005] ZACC 19
[10] Minister of Home Affairs v Fourie [2005] ZACC 19
[11] Minister of Home Affairs v Fourie [2005] ZACC 19
[12] Minister of Home Affairs v Fourie [2005] ZACC 19
[13] Minister of Home Affairs v Fourie [2005] ZACC 19
[14] Minister of Home Affairs v Fourie [2005] ZACC 19
[15] Minister of Home Affairs v Fourie [2005] ZACC 19
[16] Minister of Home Affairs v Fourie [2005] ZACC 19
[17] Minister of Home Affairs v Fourie [2005] ZACC 19
[18] Minister of Home Affairs v Fourie [2005] ZACC 19
[19] Minister of Home Affairs v Fourie [2005] ZACC 19
[20] Minister of Home Affairs v Fourie [2005] ZACC 19
[21] Minister of Home Affairs v Fourie [2005] ZACC 19
[22] Minister of Home Affairs v Fourie [2005] ZACC 19
[23] Minister of Home Affairs v Fourie [2005] ZACC 19
[24] Minister of Home Affairs v Fourie [2005] ZACC 19
[25] Minister of Home Affairs v Fourie [2005] ZACC 19
[26] Minister of Home Affairs v Fourie [2005] ZACC 19
[27] Minister of Home Affairs v Fourie [2005] ZACC 19
[28] Minister of Home Affairs v Fourie [2005] ZACC 19
[29] Minister of Home Affairs v Fourie [2005] ZACC 19
[30] Minister of Home Affairs v Fourie [2005] ZACC 19
[31] Minister of Home Affairs v Fourie [2005] ZACC 19
[32] Minister of Home Affairs v Fourie [2005] ZACC 19
[33] Minister of Home Affairs v Fourie [2005] ZACC 19
[34] Minister of Home Affairs v Fourie [2005] ZACC 19
[35] Minister of Home Affairs v Fourie [2005] ZACC 19
