Page:Fourie v Minister of Home Affairs (SCA).djvu/73

Rh It will be recalled that the court a quo approached the application on the basis that the appellants claimed to be married. After referring to their ‘assumption’ that they were married, Roux J held that they were not married as required by the law. It is clear that the learned judge was misled by the notice of motion, which spoke of the marriage of the parties. It is clear however, from the founding affidavit, which I have summarised above, that the appellants' true case is that they intend to enter into a marriage with each other and they seek a declaration that such marriage, when entered into in accordance with the formalities in the Marriage Act, will be valid and registrable under the Marriage Act and the Identification Act. The respondents' contention that the prayers in the notice of motion indicate that the appellants regarded themselves as married and considered that all they needed from the court was a declaration to legalise their marriage is accordingly not correct.

In constitutional litigation, where infringements of rights entrenched in the Bill of Rights are at issue, it is in any event inappropriate to adopt an overly technical attitude to the relief sought by an applicant. Holding, as I do, that the application of the common law definition of marriage subjects the appellants to infringements of their rights under ss 9 and 10 of the Constitution, I