[11]The result was that the applicants pursued their appeal in the SCA.[1] They did so on the same basis on which they had litigated in the Pretoria High Court, namely, that the common law needed to be developed, without linking this to a challenge to the Marriage Act.
[12]The SCA upheld the appeal in part. Two separate judgments were delivered. All five judges held that the exclusion of same-sex couples from the common law definition of marriage constituted unfair discrimination against them. The reasons for coming to this conclusion diverged in certain significant respects, however, resulting in different approaches being taken as to the order to be made.
[13]Writing for the majority, Cameron JA[2] held that the Constitution grants powers to the Constitutional Court, the SCA and the High Courts to develop the common law, taking into account the interests of justice.[3] The Bill of Rights provides[4] that when applying a provision of the Bill of Rights to a natural or juristic person a court, in order to give effect to a right in the Bill, “must apply, or if necessary develop, the common law to the extent 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 section 36(1). It also provides that when developing the
- ↑ Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA); 2005 (3) BCLR 241 (SCA). [Fourie (SCA).]
- ↑ His judgment was concurred in by Mthiyane and Van Heerden JJA and Ponnan AJA.
- ↑ Section 173 of the Constitution.
- ↑ Section 8(3).
