It was submitted that these provisions presupposed special legislation governing separate systems of family law to deal with different family situations. This, it was contended, had a double effect. In the first place it entailed acknowledgement that it would be the legislature and not the courts that would be responsible for creating a legal regime to respond to the needs of same-sex couples. Secondly, the ability to cater for same-sex couples through legislation adopted under section 15(3) showed that the Constitution envisaged their rights being protected through special laws which would not interfere with the hallowed institution of marriage.
[107]Section 15(3) is undoubtedly an important provision of the Constitution, the full significance of which remains as yet undeveloped. Consistent with the theme of diversity in unity, it establishes that there is no hegemonic model of marriage inexorably and automatically applicable to all South Africans. Dealing with the disparagement to which Muslim marriages were subjected in the past, Moseneke J said in Daniels:[1]
“[The] ‘persisting invalidity of Muslim marriages’ is, of course, a constitutional anachronism. It belongs to our dim past. It originates from deep-rooted prejudice on matters of race, religion and culture. True to their worldview, Judges of the past displayed remarkable ethnocentric bias and arrogance at the expense of those they perceived different. They exalted their own and demeaned and excluded everything else. Inherent in this disposition, says Mahomed CJ, is ‘inequality, arbitrariness, intolerance and inequity’.
These stereotypical and stunted notions of marriage and family must now succumb to the newfound and restored values of our society, its institutions and diverse people.
- ↑ Daniels v Campbell NO and Others 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC).
