Page:Minister of Home Affairs v Fourie.djvu/19



Rh Appeal and cross-appeal

None of the parties to the litigation were satisfied with the outcome. The state noted an appeal on several grounds, revolving mainly around the proposition that it was not appropriate for the judiciary to bring about what it regarded as a momentous change to the institution of marriage, something, it contended, that should be left to Parliament. The applicants for their part were unhappy because although the newly developed definition of the common law included them in its terms, they were still prevented from getting married by the phrasing of the marriage vows in the Marriage Act. The only possible route enabling them to marry under the Act was a tenuous one, namely, to find a sympathetic religious denomination with an inclusive marriage vow that was approved by the Minister of Home Affairs. In their application to cross-appeal they accordingly supported the reasoning of Farlam JA regarding updating the Marriage Act, while objecting to his suspension of the development of the common law. At the same time they supported Cameron JA’s finding that immediate relief should be granted to them, but objected to his decision that the Marriage Act barred them from taking the vows except in the limited circumstances to which he referred. The overall result was that the state has sought leave to appeal against the SCA’s decision on the basis that it went too far, while the applicants have sought leave to cross-appeal on the grounds that it did not go far enough. It was common cause that the application in the Fourie matter by the state for leave to appeal and by the applicants for leave to cross-appeal, raise questions of considerable constitutional

Rh