Gay and lesbian people should be given their full rights in terms of marriage, the Supreme Court of Appeal in Bloemfontein heard on Monday.
”Marriage is a mechanism through which heterosexuals automatically get certain rights and privileges,” senior council Pieter Oosthuizen said.
He was appearing on behalf of Marie Fourie and Cecelia Bonthuys, who are challenging a decision by the Pretoria High Court, which dismissed their application to have their marriage legally recognised.
”The one thing that keeps homosexuals from the same rights is a single line in the common law,” said Oosthuizen.
The law defines marriage as a union of one man and one woman, which makes it impossible for same-sex couples to marry each other.
Oosthuizen told the court that wedlock now is not what it was traditionally.
”It’s a institution with rights and privileges and has nothing to do with religion. We also deal now with the realities of 2004 and not those of 1876.”
He said the essence of any marriage is that it is a mere contract between two people that will change their status.
”It’s this status change that gives them access to certain rights and privileges, which they normally would not have.”
Oosthuizen submitted that common law gives heterosexuals a choice to exercise these rights, but homosexuals are denied this choice.
He said that just in terms of the Constitution, which says that all should be treated equal before the law, the appeal should be granted.
”… If this is a discrimination against their sexual orientation, it is unfair and more than enough reason for the appeal to be granted.”
The court also heard a submission by the Lesbian and Gay Equality Project.
The Department of Home Affairs is opposing the appeal. — Sapa