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

Rh us is so genuine and serious’, and because not being able to marry presents a host of practical and legal impediments to their shared life.

They raise no statutory challenge. Instead, their founding affidavit asks the court to grant them relief by invoking its jurisdiction to develop the common law in accordance with the Constitution. In the Pretoria High Court Roux J dismissed their application on the ground that the relief they sought was incompatible with the Marriage Act 25 of 1961. He ordered them and the amicus to pay the costs of the respondents (the Minister and Director-General of Home Affairs). (The respondents later abandoned the costs order against the amicus.)

The Constitution grants inherent power to the Constitutional Court, the Supreme Court of Appeal and the High Courts ‘to develop the common law, taking into account the interests of justice’ (s 173). The Bill of Rights (s 8(3)) provides that when applying a provision of the Bill of Rights to a natural or juristic person a court, in order to give effect to a right in the Bill, ‘must apply, or if necessary develop, the common law to the extent