Page:Fourie v Minister of Home Affairs (SCA).djvu/93

Rh marriage. Venter v Venter is authority for the proposition that it is not, except where the inability was deliberately concealed by the affected spouse. Van Niekerk v Van Niekerk on the other hand, is authority for the contrary proposition, namely that inability to procreate, even where it was not fraudulently concealed, is a ground of annulment. This is subject, however, to the important proviso that this is not the case where the parties knew that procreation was not possible. In a same-sex union the parties would be aware at the time of the marriage that what the Ontario Court of Appeal called ‘natural’ procreation is not possible. It follows that their union, if it is to be regarded as a marriage, would not be subject to annulment and the factor under consideration is not relevant.

Further authority for this view is to be found in the judgment of Ackermann J in the Home Affairs case. Having referred to the reinforcement of ‘harmful and hurtful stereotypes of gays and lesbians’, Ackermann J said: ‘[50] A second stereotype, often used to bolster the prejudice against gay and lesbian sexuality, is constructed on the fact that a same-sex couple cannot procreate in the same way as a heterosexual couple. Gays and