Page:Fourie v Minister of Home Affairs (SCA).djvu/84

Rh had four wives. Further details of such marriages are given by Oomen in her note ‘Traditional woman-to-woman marriages and the Recognition of Customary Marriages Act.’

Since the coming into operation of the Interim Constitution on 27 April 1994 the courts have given a series of decisions based on the equality and human dignity provisions of the Interim Constitution and the present Constitution affording to same-sex couples benefits that were previously enjoyed only by married couples.

In the Home Affairs case, Ackermann J emphasised that ‘over the past decades an accelerating process of transformation has taken place in family relationships, as well as in societal and legal concepts regarding the family and what it comprises.’ The judgments which I list in fn 102 above do not recognise same-sex marriages as such but rather a parallel, equivalent institution. It may accordingly be argued that they do not afford a basis for adopting by judicial decision the first option suggested by the Law Commission, viz the opening up of the institution of marriage to