same-sex couples, but rather as paving the way for the adoption by the legislature of the second or third options. Such a point is clearly not without substance but it does not detract from the fact that these decisions indicate a recognition of the process of transformation to which Ackermann J referred in the Home Affairs decision.
[116]Parliament has also over the years since 1994 enacted numerous provisions giving recognition, in some cases expressly in others impliedly, to same-sex partnerships.[1] These enactments evidence an awareness on the part of Parliament of the changing nature of the concept of the family in our society.
[117]I am satisfied in the circumstances that the extension of the common law definition of marriage to same-sex couples cannot be regarded in South Africa in 2004 as involving a fundamental change in the traditional concept of marriage.
[118]It seems to me that the best way of ascertaining whether the proposed extension would for us be merely an incremental step or would involve problems of great complexity, as Lord Hope of Craighead suggested would be the case in the United Kingdom, is
- ↑ Details are to be found in footnote 41 to the judgment of the Constitutional Court in the Home Affairs case, supra, and in footnote 33 to the judgment of the Constitutional Court in the Du Toit case, supra. To these may be added the Immigration Act 13 of 2002, s 1 of which includes in the definition of ‘spouse’ a person who is a party to ‘a permanent homosexual or heterosexual relationship which calls for cohabitation and mutual financial and emotional support, and is proven by a prescribed affidavit substantiated by a notarial contract.’
