Page:Fourie v Minister of Home Affairs (SCA).djvu/42

Rh “Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?” This section …, as I have already pointed out, is peremptory. It contemplates a marriage between a male and a female and no other. Section 11(1) of the same Act provides as follows: “11(1) A marriage may be solemnised by a marriage officer only.” It must follow that the Applicants are not married as required by the law. I am not prepared to exercise the discretion vested in me by section 19 of Act 59 of 1959 to enquire into a non-existing right. Prayer 3 of the notice of motion [the prayer asking for an order directing the respondents to register the marriage in terms of the Marriage Act and the Identification Act] requires me to compel the Respondents to do what is unlawful. Obviously I will not make such an order.

There is no attack on the provisions of Act 25 of 1961 on the basis that they offend the Constitution. No more need therefore be said. This application is obviously still-born.’

LEAVE TO APPEAL

The applicants applied to the Pretoria High Court for leave to appeal against this judgment. As Roux J had in the interim retired, the application came before Mynhardt J, who refused to grant the appellants a positive certificate in terms of Rule 18 of the