Page:Fourie v Minister of Home Affairs (SCA).djvu/41

Rh ‘This despite airing my view on how appropriate this relief could be in the light of the facts and the Statute to which I will refer later.’ He held that the appellants were seeking a declaratory order. Such an order, he said, is catered for by s 19 (1) (a) (iii) of the Supreme Court Act 59 of 1959, which vests the court with a discretion, at the instance of any interested person, ‘to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination’.

He continued: ‘The “right” in question must be the [appellants'] assumption that they are married. … In Roman law marriage is the full legal union of man and woman for the purpose of lifelong mutual companionship. I refer for example to Sohm Institutes of Roman Law, 3rd edition at p 452. Nothing I am aware of has changed since. Indeed the Marriage Act 25 of 1961 mirrors the age old concept of what a marriage is. I refer to the peremptory provisions of section 30(1) of the Act: “1. In solemnising any marriage any marriage officer designated under section 3 may follow the marriage formula usually observed by his religious denomination or organization if such marriage formula has been approved by the Minister, but if such marriage formula has not been approved by the Minister, or in the case of any other marriage officer, the marriage officer concerned shall put the following questions to each of the parties separately, each of whom shall reply thereto in the affirmative: