Page:Fourie v Minister of Home Affairs (SCA).djvu/72

Rh [60] above. They laid great stress on the point, which had found favour with the court a quo, that, as the appellants had not attacked the validity of those provisions of the Marriage Act which appeared to place a legislative imprimatur on the common law definition, the application could not succeed.

The respondents did not suggest that the appellants should in addition have sought a declaration that the Identification Act 68 of 1997 is inconsistent with the Constitution (as Moseneke J suggested may be the position ). The attitude adopted by the respondents in this regard was, in my view, entirely correct because the provision in the Identification Act which deals with the registration of marriages (s 8(e)) does not depend in any way on an acceptance of the common law definition.

Later in this judgment I shall state my reasons for being of the opinion that the statutory marriage formula set forth in s 30(1) of the Marriage Act does not constitute a basis for denying the appellants relief in this matter. This renders it unnecessary for me to decide whether the absence of a challenge to the constitutional validity of s 30(1) precludes the appellants from receiving any relief at all in their application.