Page:Fourie v Minister of Home Affairs (CC).djvu/3

Rh, the right that they sought to have determined was no more than an assumption that they were married and thus had no validity in law. The court held that, under the common law, marriage is the legal union of a man and a woman for the purpose of a lifelong mutual relationship and that the Marriage Act contemplates a marriage between a male and a female, to the exclusion of all others. The court concluded that to require the respondents to register their relationship as a marriage would be to compel them to do what is unlawful.

Aggrieved by that decision, the applicants approached the High Court for a positive certificate under Rule 18(2) for leave to appeal directly to this Court and if refused, to the Supreme Court of Appeal (SCA). The High Court refused to issue a positive certificate but granted the applicants leave to appeal to the SCA. The applicants, have nevertheless, approached this Court in terms of Rule 18(7).

The applicants contend that it is in the interests of justice that their appeal be heard directly by this Court. They submit that such leave should be granted on the grounds that, first, the High Court erred in approaching the claim for a declarator as discretionary relief under section 19(1)(a)(iii) of the Supreme Court Act rather than as a prayer for effective relief in terms of section 38 read together with section 173 of  3