Page:Fourie v Minister of Home Affairs (SCA).djvu/95

Rh family. It this were so, childless couples and single parents would not constitute families. Further, this logic suggests that adoptive families are not as desirable as natural families. The flaws in this position must have been self-evident. Though procreation is an element in many families, placing the ability to procreate as the inalterable basis of family could result in an impoverished rather than an enriched version.”’ (Footnotes omitted.)

I have already referred to the fact that Parliament has in the years since 1994 passed a number of statutes recognising same-sex partnerships. As appears from the judgment given by Moseneke J when this case was before the Constitutional Court there are at least 44 Acts of Parliament in which reference is made to ‘husband’ and/or ‘wife’ either in the body of the Act or in regulations to the Act. The extension of the definition of marriage would not appear materially to affect the operation of these statutory provisions and I am satisfied that the existence of these provisions on the statute book would not prevent the development of the common law under discussion from being considered to be no more than an incremental step. In fact it may well be that Parliament would consider it appropriate to pass an Act, possibly by way of an amendment to the Interpretation Act 33 of 1957, to provide that a reference in a statue to a ‘husband’ or a ‘wife’ in terms of a marriage under the Marriage Act would include