Page:Minister of Home Affairs v Fourie.djvu/18



Rh would suspend the declaration of invalidity of the common law for two years, however, to enable Parliament to enact legislation to ensure the applicants’ rights to equality and human dignity are not unjustifiably infringed. Furthermore, the declaration would fall away only if such legislation was timeously enacted.

To summarise: both judgments were in agreement that the SCA could and should rule that the common law definition discriminated unfairly against same-sex couples. The majority judgment by Cameron JA held, however, that although the common law definition should be developed so as to embrace same-sex couples, the Marriage Act could not be read in such a way as to include them. In the result, the only way the parties could marry would be under the auspices of a religious body that recognised same-sex marriages, and whose marriage formula was approved by the Minister of Home Affairs. The right of same-sex couples to celebrate a secular marriage would have to await a challenge to the Marriage Act. The minority judgment of Farlam JA, on the other hand, held both that the common law should be developed and that the Marriage Act could and should be read there and then in updated form so as to permit same-sex couples to pronounce the vows. In his view, however, the development of the common law to bring it into line with the Constitution should be suspended to enable Parliament to enact appropriate legislation. In support of an order of suspension he pointed out that the SALRC had indicated that there were three possible legislative responses to the unconstitutionality, and, in his view, it should be Parliament and not the judiciary that should choose.

Rh