Page:Fourie v Minister of Home Affairs (SCA).djvu/26

Rh constitutionally necessary change to such a formula, that must be done not by interpretation but by the constitutional remedy of ‘reading in’. That remedy is appropriate because it changes in a permissible manner the nature of the action the statute requires, without purporting merely to interpret its words.

The appellants' legal advisors apparently overlooked the question of the marriage formula entirely. As Moseneke J pointed out in refusing leave to appeal directly to the Constitutional Court, their papers do not seek ‘a declaration that any of the provisions of the legislation dealing with the solemnising or recording of marriages is inconsistent with the Constitution’.

This does not however in my view constitute an obstacle to granting the appellants some portion of the relief they seek, as Roux J considered. As Farlam JA points out ( para 91  ), the Act permits the Minister to approve variant marriage formulae for ministers of religion and others holding a ‘responsible position’ within religious denominations. There are many religious societies that currently approve gay and lesbian marriage, including places of worship specifically dedicated to gay and lesbian congregations. Even without amendment to the