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VAN HEERDEN AJ already died or who die before the law is changed or before they have the opportunity to make use of any new dispensation.

In my view, paragraph 2 of the High Court order should be confirmed for the reasons that follow.

As was stated by Sachs J in Fourie, the judgment in that case – “… [left] open for appropriate future legislative consideration or judicial determination the effect, if any, of this judgment on decisions this Court has made in the past concerning same-sex life partners who did not have the option to marry. Similarly, this judgment does not pre-empt in any way appropriate legislative intervention to regulate the relationships (and in particular, to safeguard the interests of vulnerable parties) of those living in conjugal or non-conjugal family units, whether heterosexual or gay or lesbian, not at present receiving legal protection. As the SALRC has indicated, there are a great range of issues that call for legislative attention.” (footnote omitted).

Any change in the law pursuant to Fourie will not necessarily amend those statutes into which words have already been read by this Court so as to give effect to the constitutional rights of gay and lesbian people to equality and dignity. In the absence of legislation amending the relevant statutes, the effect on these statutes of