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29-Nov-2017 16:10

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In a dissenting opinion, Judge Ian Farlam was of the opinion that the court's order declaring the common-law definition invalid should be suspended for two years to allow Parliament to adopt its own remedy for the situation.

The Government appealed the SCA's ruling to the Constitutional Court, arguing that a major alteration to the institution of marriage was for Parliament and not the courts to decide, while Fourie and Bonthuys cross-appealed, arguing that the Marriage Act should be altered as Judge Farlam had suggested.

The Joint Working Group, a network of LGBTI organisations, described the idea of a separate marriage law for same-sex couples as "an apartheid way of thinking".

The minor opposition African Christian Democratic Party (ACDP) pushed for a constitutional amendment to define marriage as between a man and a woman; this was rejected by the National Assembly's portfolio committee on Home Affairs.

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It was originally expected that the National Assembly would vote on the bill on 20 October in order to allow enough time for the National Council of Provinces to debate and vote on it ahead of the 1 December deadline.Same-sex marriage has been legal in South Africa since the Civil Union Act came into force on 30 November 2006.The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes.These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships: In 2002, a lesbian couple, Marié Fourie and Cecelia Bonthuys, with the support of the Lesbian and Gay Equality Project, launched an application in the Pretoria High Court to have their union recognised and recorded by the Department of Home Affairs as a valid marriage.

Judge Pierre Roux dismissed the application on 18 October 2002, on the technical basis that they had not properly attacked the constitutionality of the definition of marriage or the Marriage Act, 1961.On 9 October, the governing African National Congress voted to support the Civil Union Bill.Although the party had been split on the issue, the vote meant that ANC MPs would be obliged to support the bill in Parliament.The vote was repeatedly delayed as the Portfolio Committee on Home Affairs was still involved in discussions.



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