Fourie and Another v Minister of Home Affairs and Another (232/2003) [2004] ZASCA 132; [2005] 1 All SA 273 (SCA); 2005 (3) SA 429 (SCA); 2005 (3) BCLR 241 (SCA) (30 November 2004)

Fourie and Another v Minister of Home Affairs and Another (232/2003) [2004] ZASCA 132; [2005] 1 All SA 273 (SCA); 2005 (3) SA 429 (SCA); 2005 (3) BCLR 241 (SCA) (30 November 2004)

The Supreme Court of Appeal held that the common law definition of marriage, which excludes same-sex couples, constitutes unfair discrimination on the basis of sexual orientation and infringes the constitutional rights to equality and dignity. The court found that the exclusion is not justified and that the development of the common law to include same-sex partners is an incremental step required by the Constitution. The court rejected the argument that such development would intrude on the legislative domain, noting that judicial development of the common law is mandated where necessary to give effect to constitutional rights. The court further held that there was no reason to suspend...

Citation
[2004] ZASCA 132
Parties
Appellant: Fourie and Another; Respondent: Minister of Home Affairs and Another
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2004
Case Number
232/2003
Procedural Posture
Civil Appeal / Appeal From Pretoria High Court Judgment Dismissing Application for Recognition of Same Sex Marriage.
Outcome
Appeal upheld. The order of the court below is set aside and replaced with a declaration that the common law concept of marriage is developed to embrace same-sex partners. Costs awarded to appellants.
Judges
E Cameron, Mthiyane, Farlam
Legal Topics
Bill of Rights Limitation, Right to Equality, Sexual Orientation Discrimination, Development of Common Law, Marriage Act Interpretation
Constitutional Law Family and Children Bill of Rights Limitation Right to Equality Sexual Orientation Discrimination Development of Common Law Marriage Act Interpretation

Case Brief

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Parties

Fourie and Another

Appellant

Minister of Home Affairs and Another

Respondent

Procedural Posture

Civil Appeal / Appeal From Pretoria High Court Judgment Dismissing Application for Recognition of Same Sex Marriage.

Legal Issues

  1. 1 Does the common law definition of marriage, which excludes same-sex couples, constitute unfair discrimination under the Constitution?
  2. 2 Does the exclusion violate the appellants' rights to equality and dignity?
  3. 3 Should the common law definition of marriage be developed to include same-sex partners?

Ratio Decidendi

The Supreme Court of Appeal held that the common law definition of marriage, which excludes same-sex couples, constitutes unfair discrimination on the basis of sexual orientation and infringes the constitutional rights to equality and dignity. The court found that the exclusion is not justified and that the development of the common law to include same-sex partners is an incremental step required by the Constitution. The court rejected the argument that such development would intrude on the legislative domain, noting that judicial development of the common law is mandated where necessary to give effect to constitutional rights. The court further held that there was no reason to suspend...

Court Disposition

Appeal upheld. The order of the court below is set aside and replaced with a declaration that the common law concept of marriage is developed to embrace same-sex partners. Costs awarded to appellants.

Orders

  • The appeal succeeds with costs.
  • The order of the court below is set aside.