Page:Fourie v Minister of Home Affairs (SCA).djvu/97

Rh Churches, each of the parties had to make the following declaration: ‘I do solemnly declare that I know not of any lawful impediment why I, A.B., may not be joined in matrimony to C.D., here present.’ Thereafter each of the parties had to say to the other: ‘I call upon these persons here present to witness that I, A.B., do take C.D to be my lawful wedded wife (or husband).’

There is no section of the Act that expressly approves the common law definition of marriage and I do not think that s 30(1) can be regarded as placing what may be called a legislative imprimatur on that definition. Clearly what has happened is that the marriage formula contained in the Act was framed on the assumption that the common law definition was the correct one, which it was in 1838 and in 1961.

The question to be considered is whether if the common law definition were to change (as I believe it will have to if Parliament does not take other action to ensure that the appellant's rights to equality and human dignity are not infringed) the Court would be able to modify the language of the formula so as to bring it in line with an extended definition.