Page:Minister of Home Affairs v Fourie.djvu/105

 Rh the declaration of invalidity for twelve months. The effect of this order is that gay and lesbian couples will not be permitted to marry during this period.

His main reasons for this order are firstly, that there are at least two ways in which the unconstitutionality can be remedied, as recommended by the South African Law Reform Commission; and that given these alternatives, and the important democratic and legitimating role of the legislature in our society, it is appropriate to leave it to Parliament to choose between these courses of action, or any other which might be constitutional. A second and equally important reason that he gives is that, as marriage involves a question of personal status, it would lead to greater stability if such matters were to be regulated by an Act of Parliament rather than the courts.

I am not persuaded that these considerations can weigh heavily in the scales of justice and equity. We are concerned in this case with a rule of the common law developed by the courts, the definition of marriage. The provisions of section 30 of the Marriage Act rest on that definition, the definition does not arise from the provisions of the legislation. As a definition of the common law, the responsibility for it lies, in the first place, with the courts. It is the duty of the courts to ensure that the common law is in conformity with the Constitution, as this Court held in Carmichele. This is not to say that both the common law definition and the provisions of the Act could not be altered by appropriate legislative intervention. The question is, however, whether it is appropriate in this case for a court to suspend an order of invalidity, thus

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