Minister of Home Affairs and Another v Fourie and Another/O'Regan J

by Kate O'Regan

O'Regan J:

[163]There is very little in the comprehensive and careful judgment of Sachs J with which I disagree. I agree that the application for direct access should be granted. The issues raised by the Equality Project are inextricably intertwined with the issues raised in the application for leave to appeal and the decision on the application for leave to appeal will inevitably determine many of the issues in the Equality Project application. In addition, granting direct access will assist the resolution of the issues in the application for leave to appeal. Finally, there are no disputes of fact to be determined that would deter the grant of direct access.

[164]I also agree with Sachs J, for the reasons given by him, as well as for the reasons given in both judgments in the Supreme Court of Appeal, that the common-law definition of marriage in excluding gay and lesbian couples from marriage constitutes unfair discrimination on the grounds of sexual orientation in breach of section 9 of the Constitution. Similarly, and for the same reasons, section 30 of the Marriage Act, 25 of 1961, is in conflict with the same constitutional provision. I need add nothing to the comprehensive judgment of Sachs J on this score.

[165]The difference between his judgment and this, therefore, lies solely in one significant area, namely, that of remedy. How best should these clear constitutional infringements be remedied by this Court? In S v Bhulwana; S v Gwadiso^[1] this Court held that it is an important principle of the law of constitutional remedies that successful litigants should ordinarily obtain the relief they seek. Without doubt there are exceptions to this rule. A court must consider in each case whether there are other considerations of justice or equity which would warrant an exception to this key precept.^[2] In this case, Sachs J concludes that this case does involve considerations which warrant such an exception, and he accordingly proposes an order suspending 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.

[166]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.

[167]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.^[3] 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 denying successful litigants immediate relief, in order to give Parliament an opportunity to enact legislation to do both.

[168]In my view, it is not. It is true that there is a choice for the legislature to make, but on the reasoning of the majority judgment, there is not a wide range of options. If as Sachs J correctly concludes, it is not appropriate to deny gays and lesbians the right to the same status as heterosexual couples, the consequence is that, whatever the legislative choice, it is a narrow one which will affect either directly or indirectly all marriages. The choice as to how regulate to these relationships will always lie with Parliament and will be unaffected by any relief we might grant in this case.

[169]In my view, this Court should develop the common-law rule as suggested by the majority in the Supreme Court of Appeal, and at the same time read in words to section 30 of the Act that would with immediate effect permit gays and lesbians to be married by civil marriage officers (and such religious marriage officers as consider such marriages not to fall outside the tenets of their religion). Such an order would mean simply that there would be gay and lesbian married couples at common law which marriages would have to be regulated by any new marital regime the legislature chooses to adopt. I cannot see that there would be any greater uncertainty or instability relating to the status of gay and lesbian couples than in relation to heterosexual couples. The fact that Parliament faces choices does not, in this case, seem to me to be sufficient for this Court to refuse to develop the common law and, in an ancillary order, to remedy a statutory provision, reliant on the common law definition, which is also unconstitutional.

[170]The doctrine of the separation of powers is an important one in our Constitution^[4] but I cannot see that it can be used to avoid the obligation of a court to provide appropriate relief^[5] that is just and equitable^[6] to litigants who successfully raise a constitutional complaint. The exceptions to the principle established in Bhulwana's case must arise in other circumstances, where the relief cannot properly be tailored by a court,^[7] or where even though a litigant would otherwise be successful, other interests or matters would preclude an order in his or her favour,^[8] or where an order would otherwise produce such disorder or administrative difficulties that the interests of justice served by an order in favour of a successful litigant are outweighed by the social dislocation such an order might occasion.^[9] The importance of the principle that a successful litigant should obtain the relief sought has been acknowledged by this Court through the grant of interim relief where an order of suspension is made to ensure that constitutional rights are infringed as little as possible in the period of suspension.^[10]

[171]There can be no doubt that it is necessary that unconstitutional laws be removed from our statute book by Parliament. It is equally necessary that provisions of the common law which conflict with the Constitution are developed in a manner that renders them in conformity with it. It would have been desirable if the unconstitutional situation identified in this matter had been resolved by Parliament without litigation. The corollary of this proposition, however, is not that this Court should not come to the relief of successful litigants, simply because an Act of Parliament conferring the right to marry on gays and lesbians might be thought to carry greater democratic legitimacy than an order of this Court. The power and duty to protect constitutional rights is conferred upon the courts and courts should not shrink from that duty. The legitimacy of an order made by the Court does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Constitution. Time and again, there will be those in our broader community who do not wish to see constitutional rights protected, but that can never be a reason for a court not to protect those rights.

[172]There is one further comment I wish to add. It does not seem to me that an order developing the common law, as ordered by the majority in the Supreme Court of Appeal, coupled with an order reading in the words “or spouse” to the relevant provisions of the Marriage Act would undermine the institution of marriage at all. This Court has noted on several occasions the important role that institution plays in our society.^[11] Permitting those who have been excluded from marrying to marry can only foster a society based on respect for human dignity and human difference. Nor will it undermine the special role of marriage as recognised by different religions. Such marriages draw their strength and character from religious beliefs and practices. The fact that gay and lesbian couples are permitted to enter civil marriages should not undermine the strength or meaning of those beliefs.

[173]In sum, I dissent from the judgment of Sachs J in one respect. I would not suspend the order of invalidity as proposed by Sachs J. In my view, the Court should make an order today which has immediate prospective effect. Such an order would not preclude Parliament from addressing the law of marriage in the future, and would simultaneously and immediately protect the constitutional rights of gay and lesbian couples pending parliamentary action.

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1. S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC) at para 32.
2. See Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 261 (CC); 1997 (2) BCLR 153 (CC) at paras 26–29 and para 50; also see the judgment of Sachs J at para 133.
3. Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 33.
4. De Lange v Smuts NO and Others 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) at paras 60–63, S v Dodo 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) at para 33, Minister of Defence v Potsane and Another; Legal Soldier (Pty) Ltd and Others v Minister of Defence and Others 2002 (1) SA 1 (CC); 2001 (11) BCLR 1137 (CC) at para 37.
5. Section 38 of the Constitution:

   “Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are—

   (a)		anyone acting in their own interest;
   (b)		anyone acting on behalf of another person who cannot act in their own name;
   (c)		anyone acting as a member of, or in the interest of, a group or class of persons;
   (d)		anyone acting in the public interest; and
   (e)		an association acting in the interest of its members.”

6. Section 172 of the Constitution:

   “(1) When deciding a constitutional matter within its power, a court—

   (a)

   must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

   (b)

   may make any order that is just and equitable, including—

   (i)		an order limiting the retrospective effect of the declaration of invalidity; and
   (ii)		an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

   (2) (a)		The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.
   (b)		A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.
   (c)		National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.
   (d)		Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.”

7. Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at paras 63–64; Fraser v Naude and Others 1999 (11) BCLR 1357 (CC) at paras 9–10.
8. Fraser id.
9. Tsotetsi v Mutual and Federal Insurance Co Ltd 1997 (1) SA 585 (CC); 1996 (11) BCLR 1439 (CC) at para 10.
10. See for example, Dawood above n 7 at paras 66–67, Janse van Rensburg NO and Another v Minister of Trade and Industry and Another NNO 2001 (1) SA 29 (CC); 2000 (11) BCLR 1235 (CC) at para 29–30, Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC) at paras 130–31.
11. National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) at para 58, Dawood above n 7 at paras 30–31, Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC); 2002 (9) BCLR 986 (CC) at para 22.