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
- ↑ S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC) at para 32.
- ↑ 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.
