discriminated against on the ground of their sexual preferences and that their human dignity could not be infringed. She contended that the failure by the law to recognise a marriage between her and the second appellant discriminated against them and infringed their dignity. In the concluding paragraph of this part of her affidavit the first appellant stated that she had been advised that in terms of the Constitution the common law had to be developed to promote the spirit, purport and objects of the Bill of Rights. She submitted that the common law (by which she clearly meant the common law of marriage in terms of which it was not possible for two persons of the same sex to marry one another) had now to be so developed.
Rule 16A notice
[55]Before the respondents' opposing affidavits were filed the appellants caused a notice to be given to the registrar of the Pretoria High Court in terms of Rule 16A in which they indicated that they would raise in their application a constitutional point, which they formulated as follows:
‘Whether the common law has so developed that it can be amended so as to recognise marriages of persons of the same sex as legally valid marriages in terms of the Marriage Act, provided that such marriages comply with the formality requisites set out in the Act.’
