common law the Court must promote the spirit, purport and objects of the Bill of Rights.[1] Taken together, these provisions create an imperative normative setting that obliges courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Doing so is not a choice. Where the common law is deficient, the courts are under a general obligation to develop it appropriately. This provided the background to the task in the appeal.
[14]Cameron JA went on to state that developing the common law involves a creative and declaratory function in which the court puts the final touch on the process of incremental legal development that the Constitution has already ordained. The task of applying the values in the Bill of Rights to the common law thus requires the courts to put its faith in both the values themselves, as well as in the people whose duly elected representatives created a visionary and inclusive constitutional structure that offered acceptance and justice across diversity to all. He said that South Africans and their elected representatives have for the greater part accepted the sometimes far-reaching decisions in regard to sexual orientation and other constitutional rights over the past ten years. It is not presumptuous to believe that they will accept also the further incremental development of the common law that the Constitution requires in this case.
[15]Cameron JA pointed out that our equality jurisprudence had taken great strides in respect of gays and lesbians in the last decade. The cases articulate far-reaching
- ↑ Section 39(2).
