A lesbian couple was granted leave to appeal on Monday to the Supreme Court of Appeal in Bloemfontein against the Pretoria High Court’s refusal to legalise their marriage.
Marie Fourie, a carpet technologist, and her same-sex partner, local nurse Cecilia Bonthuys, lost their groundbreaking application against the Minister of Home Affairs when Judge Pierre Roux dismissed it with costs in October last year.
Fourie and Bonthuys, who have been living together in an exclusive relationship since 1994, claimed in court papers they were unfairly discriminated against because a marriage between them would have no legal power.
They had asked a local magistrate if she would marry them, which she was prepared to do, but she informed them that she would not be able to register the marriage.
No bank was prepared to open a joint bank account for them and they could not obtain a joint mortgage. It would also be easier to become members of a medical aid fund and to adopt a child or take one in foster care if they were married.
Counsel for the couple, Pieter Oosthuizen, submitted before Judge SJ Mynhardt on Monday that the common law should be developed to promote the spirit, tenor and aim of the Constitution, including the recognition of lesbian and gay marriages as legally binding.
He said the Constitutional Court had recognised the rights of gays and lesbians as being no different from that of heterosexual couples in three different rulings, but had never been given the opportunity to look at the issue holistically.
Oosthuizen said there was only one way for homosexuals to get the same status as heterosexuals and that was to let them get married. It would solve all of their other problems as well. The Constitutional Court should be asked to apply a suitable
remedy, he added.
Mynhardt refused to refer the matter directly to the Constitutional Court. He said it concerned the interpretation of the common law, which was the jurisdiction of the appeal court and should first be considered by that court before it could be referred to the Constitutional Court. – Sapa