the common law in an incremental fashion only. This Court has already held that if a common law provision is inconsistent with the Constitution then when appropriately challenged it will be declared invalid and struck down. This is what happened in the Sodomy case, where this Court abolished the common law crime of sodomy. The Court emphasised that in striking down the common law offence of sodomy it was not developing the common law but exercising a power under section 172(1)(a).[1] This was an example of the direct application of the Bill of Rights which led to the conclusion that the very core of the offence was constitutionally invalid.[2]
[122]In deciding on the appropriate remedy in the present matter the possibility of altering the common law through legislative action so as to bring it into line with the Bill of Rights becomes highly relevant. Having heard the Fourie matter together with the Equality Project matter, we can take account of the impact that any correction to the Act, or enactment of a separate statute, would automatically have on the common law. Thus a legislative intervention which had the effect of enabling same-sex couples to enjoy the status, entitlements and responsibilities that heterosexual couples achieve through marriage, would without more override any discriminatory impact flowing from the common law definition standing on its own. Thus corrected, the Marriage Act would then have to be interpreted and applied in a manner consistent with the constitutional requirement that same-sex couples be treated with the same concern and respect as that accorded to heterosexual couples. The effect would be
