[135]It is well settled that ‘it is within the powers of a court to modify the language of a statutory provision where this is necessary to give effect to what was clearly the legislature's intention’.[1] Here Parliament's intention was to provide a formula for the use of those capable of marrying each other and wishing to do so, unless in the case of a marriage solemnized by a marriage officer who was a minister of religion the formula observed by the denomination to which the minister in question belonged had been approved by the Minister of Home Affairs. It is important to note that no limitations are placed on the Minister's power to approve a religious marriage formula. In other words, there is nothing to prevent the Minister from, for example, approving such a formula which uses the word ‘spouse’ instead of ‘wife’ or ‘husband’ in the statutory formula. This indicates clearly that Parliament is not to be taken as having intended to approve the common law definition and, as it were, to prohibit same-sex marriages by failing (or refusing) to provide a formula for use thereat. That is why I say that Parliament's intention was to provide a formula for the use of those capable of marrying each other and wishing to do so.
- ↑ Per Schreiner JA in Durban City Council v Gray 1951 (3) SA 568 (A) at 580 (B).
