Page:Fourie v Minister of Home Affairs (SCA).djvu/4

Rh that legislation does not give effect to that right’ (though it may develop the rules of the common law to limit the right in accordance with the limitations provision in s 36(1)). It also provides that when developing the common law, a court ‘must promote the spirit, purport and objects of the Bill of Rights’ (s 39(2)).

Taken together, these provisions create an imperative normative setting that obliges courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Doing so is not a choice. Where the common law is deficient, the courts are under a general obligation to develop it appropriately.

This provides the background to our task in the appeal. At its centre is the fact that our Constitution expressly enshrines equality on the ground of sexual orientation. When this took effect at the birth of our democracy on 27 April 1994, it was