Page:Minister of Home Affairs v Fourie.djvu/5

 Rh state against them because of their sexual orientation? And if it does, what is the appropriate remedy that this Court should order?

I. HISTORY OF THE LITIGATION

The first challenge: the common law definition of marriage (the Fourie case)

Pursuant to their desire to marry and thereby acquire the status, benefits and responsibilities which traditionally flow from marriage between heterosexual couples, the applicants went to the Pretoria High Court. They asked for an order declaring that the law recognises their right to marry, and a mandamus ordering the Minister of Home Affairs and the Director-General to register their marriage in terms of the Marriage Act. It will be noted that they did not mount a challenge either to the common law definition of marriage or to the constitutionality of section 30(1) of the Marriage Act.

Roux J in the High Court attempted to ‘wring out’ of the parties a clear description of the constitutional issue in the matter. The applicants articulated the issue as follows: “Whether the common law has so developed that it can be amended so as to recognise marriages of persons of the same sex as legally valid marriages in terms of the Marriage Act, 25 of 1961 provided that such marriages comply with the formality requisites set out in the Act.”

Rh