Roux J concluded that the marriage formula in section 30(1) of the Marriage Act, which contemplates marriage between a male and a female and no other, is peremptory. Consequently the applicants could not be married as required by the law. To compel the Minister of Home Affairs to register the “marriage” between the applicants, he added, would constitute a request to do what is unlawful. An omission to challenge the constitutionality of the provisions of the Marriage Act accordingly constituted an obstacle to granting the relief sought. On this basis he dismissed the application.
[8]The applicants then applied to the Pretoria High Court for leave to appeal to this Court, alternatively, to the Supreme Court of Appeal (SCA) against his judgment. Roux J having in the interim retired, the application was heard by Mynhardt J, who refused to grant a positive certificate, but[1] did grant them leave to appeal to the SCA. The applicants then approached the Constitutional Court for leave to appeal directly to it against the judgment and order of the High Court.
[9]This Court refused the application on the ground that the interests of justice required that the appeal first be heard by the SCA. Moseneke J[2] said that in their papers the applicants did not seek a declaration that any of the provisions of the legislation dealing with solemnising or recording of marriages was inconsistent with the Constitution, or if any was, what the appropriate relief would be in that regard.
- ↑ In terms of Rule 18 of the Constitutional Court Rules as they then were, which provided that the Court hearing the matter had to state whether it thought the application should be heard by this Court.
- ↑ Fourie and Another v Minister of Home Affairs and Another 2003 (5) SA 301 (CC); 2003 (10) BCLR 1092 (CC). [Fourie (CC).]
