that legislation does not give effect to that right’ (though it may develop the rules of the common law to limit the right in accordance with the limitations provision in s 36(1)). It also provides that when developing the common law, a court ‘must promote the spirit, purport and objects of the Bill of Rights’ (s 39(2)).
[5]Taken together, these provisions create an imperative normative setting that obliges courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Doing so is not a choice. Where the common law is deficient, the courts are under a general obligation to develop it appropriately.[1]
[6]This provides the background to our task in the appeal. At its centre is the fact that our Constitution expressly enshrines equality on the ground of sexual orientation.[2] When this took effect at the birth of our democracy on 27 April 1994,[3] it was
- ↑ Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies intervening) 2001 (4) SA 938 (CC) paras 34 and 39, per Ackermann and Goldstone JJ on behalf of the Court.
- ↑ Bill of Rights s 9(3): ‘The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.’ Section 9(4): ‘No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.’ Section 9(5): ‘Discrimination on one or more grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’
- ↑ Interim Constitution, Act 200 of 1993, s 8(2): ‘No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin,
