Page:Fourie v Minister of Home Affairs (CC).djvu/6

Rh It is crucial to ascertain first whether the dismissal of the application constitutes a decision on a constitutional matter. The High Court took the view that the issues before it did not raise any constitutional matter since there was no constitutional challenge to the applicable provisions of the Marriage Act; the relief sought was discretionary under section 19 of the Supreme Court Act and the applicants had not established, under the common law or statute, the right to marry.

Before the High Court, the applicants did not seek a declaration that the Marriage Act and the Identification Act were inconsistent with the Constitution or an order that the common law should be developed to make provision for same-sex partnerships with consequences appropriate to such partnerships. Such relief, if sought, would clearly have raised constitutional matters. It seems to me that the relief they required can be achieved only if both the common law and the relevant statutory infrastructure is developed or amended to permit marriage between gay and lesbian couples. However, neither in their notice of motion, nor in their founding affidavits, nor in their written argument before the High Court, did the applicants advance a challenge to the statutory infrastructure.

Interests of justice Rh