Page:Fourie v Minister of Home Affairs (CC).djvu/2

Rh consequent upon the use of two counsel. The applicants are both females who have been living together as partners in a permanent same-sex relationship since June 1994. In the application before the High Court, the applicants sought, first, a declaratory order that the “marriage” between them was legally binding in terms of the Marriage Act (the Marriage Act), provided that such marriage complied with the formalities prescribed in the Act; secondly, an order directing that the first and second respondents register their relationship as a marriage in terms of the Marriage Act and the Identification Act. The respondents opposed the application.

The application appears to be premised on the assumption that the rule of law that barred same-sex marriages has, since the introduction of the Constitution, been developed to warrant the relief sought or that it should be developed to accord with the spirit, purport and objects of the Bill of Rights. Moreover, the applicants' premise is that the rule amounts to an invasion of their constitutional rights to dignity and equality, including the right to be free from unfair discrimination.

The High Court dismissed the application on the ground that, to the extent that the applicants sought a declaratory order under section 19(1)(a)(iii) of the

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