Page:Fourie v Minister of Home Affairs (SCA).djvu/71

Rh enjoying and benefiting from family life, from entering into a legally protected relationship from which substantial benefits conferred and recognized by the law flow.

IS THE RIGHT TO HUMAN DIGNITY INFRINGED?

It is clear from the reasons given in the passage cited from the HouseHome [sic] Affairs case that the common law definition of marriage not only gives rise to an infringement of the appellants' constitutional right not to be the victims of unfair discrimination in terms of s 9 of the Constitution but also to their right to human dignity in terms of s 10.

JUSTIFIABLE LIMITATION UNDER S 36

It is not suggested by the respondents that the common law definition of marriage in so far as it prevents homosexual persons from entering into same sex marriages constitutes a justifiable limitation on the appellants' rights under ss 9 and 10 of the Constitution. In my view, there would be no merit in any such suggestion.

REMEDY

It is now necessary to consider what remedy, if any, should be given to the appellants. The respondents contended that the court a quo correctly dismissed the application for the reasons given in the judgment which I have summarized in paras [59] and