her if she would be prepared to solemnize a marriage between them. The magistrate's reply was that she was prepared to perform such a marriage ceremony for them but that it would not be legally valid and that she would not be able to record it in the marriage register. The first appellant also stated that she and the second appellant had learnt that the Department of Home Affairs would not be prepared to register their intended marriage in terms of the provisions of the Marriage Act.
[52]According to the first appellant, no bank was prepared to allow her and the second appellant to open a joint bank account and that they also could not obtain a joint mortgage bond. Moreover, it would be much easier for them to become members of a medical aid fund, to adopt a child or to have a child placed in their care as foster parents if they were married to each other.
[53]The first appellant stated that she had been advised that it was what she called a ‘common law impediment’ that persons of the same sex could not marry each other. She submitted, however, that the common law had in the meanwhile so developed that a marriage between herself and the second appellant could now be recognised as legally valid.
[54]She had been advised further that, in terms of the Constitution, she and the second appellant could not be
