Page:Fourie v Minister of Home Affairs (SCA).djvu/78

Rh parallel legal institution, which gives a separate status, although the parties thereto enjoy virtually all the rights available to married couples. He contended that we would be out of kilter with the rest of the world if we were to recognise same-sex marriages.

He submitted that an extension of the common law definition to apply to same-sex unions would not be an incremental step but what he called ‘a quantum leap across a chasm’, the consequences of which would be ‘a crisis of the reality of the law’. By this he meant, he said, a situation where what the population is practising is the opposite of what is in the law books. He referred in this regard to a lecture given in 1998 by the Hon David K Malcolm, the Chief Justice of Western Australia, addressing the issue of the independence of the judiciary.

At one point in his lecture Chief Justice Malcolm said: ‘In reality, a strong, independent judiciary forms the foundation of representative democracy and observance of the Rule of Law and human rights. [However] it is primarily the confidence of the community in the legal system which encourages observance of the law … [The practice of judicial independence] also relies on a community perception that in resolving disputes between parties, the judiciary reflects and acts upon the basic and enduring values to which the community subscribes ….’