A lesbian couple’s appeal to the Supreme Court of Appeal to have their marriage legally recognised and registered succeeded on Tuesday.
The court, in a majority decision, declared that under the Constitution the common law concept of marriage was to be developed to embrace same-sex partners.
The appeal, brought by Marie Fourie and Cecelia Bonthuys, in essence challenged the definition of marriage under South African common law.
According to common law, marriage is the union of one man and one woman. This made it impossible for same-sex couples to be married to each other.
On Tuesday, Judge of Appeal Edwin Cameron said in his judgement that the definition of marriage should read: ”Marriage is the union of two persons to the exclusion of all others for life.”
The court also declared that the intended marriage between Fourie and Bonthuys was capable of lawful recognition as a legally valid marriage, provided the formalities in the Marriage Act of 1961 were complied with.
The couple challenged a Pretoria High Court decision, in favour of the Department of Home Affairs, which dismissed an application to have their marriage in October 2002 legally recognised.
They also wanted the department to register their marriage under the Marriage Act and Identification Act.
In a consenting judgement, Judge of Appeal IG Farlam agreed that the common law needed to be developed.
However, he felt that the court’s decision be suspended for a period to allow Parliament to deal with the matter in such a way as to bring an end to the ”unjustifiable breach of the appellants’ rights to equality and human dignity”.
Evert Knoesen of the Gay and Lesbian Equality Project, who appeared as amicus curiae in the appeal, said on Tuesday the organisation was happy with the decision.
He said that in principle, same-sex marriages could now be recognised but various statutory stumbling blocks, which regulated marriage, still had to be sorted out.
Knoesen said his organisation, in conjunction with various other parties, had already filed an application in the Johannesburg High Court challenging the statutory regulations. The case would be heard early next year. – Sapa