Page:Fourie v Minister of Home Affairs (SCA).djvu/62

Rh As I have said, we are concerned in this case only with the secular institution. Nothing that we say is intended to deal with the religious institution. Indeed it would be inappropriate and improper for judges in a secular state to do otherwise.

DOES THE COMMON LAW DEFINITION DISCRIMINATE AGAINST HOMOSEXUAL PERSONS?

Against that background I turn to the question whether the common law definition of marriage discriminates unfairly against homosexual persons.

What may be called the common law definition of marriage was stated as follows by Innes CJ in Mashia Ebrahim v Mahomed Essop: ‘With us marriage is a union of one man with one woman, to the exclusion, while it lasts, of all others’. He approved this statement in Seedat's Executors v The Master (Natal).

As to what is meant by ‘a union’ in that definition it is necessary to have regard to the definition of marriage attributed to the Roman jurist Modestinus, who flourished in the first half of the