Marié Adriaana Fourie and Cecelia Johanna Bonthuys v Minister of Home Affairs and Director-General of Home Affairs

The appellants are two adult women who have been living together in a permanent same-sex relationship since June 1994. They sought a declaration that their intended marriage be recognised as legally valid under the Marriage Act 25 of 1961, provided they complied with the formalities set out in the Act. They also sought an order directing the respondents to register their marriage. When they approached a magistrate, they were informed that while a ceremony could be performed, it would not be legally valid and could not be recorded in the marriage register. The Department of Home Affairs indicated it would not register such a marriage. The court a quo (Roux J in the Pretoria High Court) dismissed their application on the ground that the relief sought was incompatible with the Marriage Act, and ordered them to pay costs.

• Whether the common law definition of marriage that precludes same-sex couples from marrying constitutes unfair discrimination on the ground of sexual orientation
• Whether such discrimination infringes the right to human dignity
• Whether the court should develop the common law definition of marriage to include same-sex partners
• Whether such development would constitute an incremental change or require fundamental legislative intervention
• Whether the Marriage Act 25 of 1961 prevents the recognition of same-sex marriages
• Whether the court's order should be suspended to allow Parliament to address the matter

The appeal succeeded with costs. The order of the court below was set aside and replaced with a declaration that: (1) the common law concept of marriage is developed to embrace same-sex partners as follows: "Marriage is the union of two persons to the exclusion of all others for life"; (2) the intended marriage between the appellants is capable of lawful recognition as a legally valid marriage, provided the formalities in the Marriage Act 25 of 1961 are complied with; (3) the respondents were ordered to pay the applicants' costs. The majority (per Cameron JA) did not suspend the order. Farlam JA would have suspended the order for two years.

The common law definition of marriage that restricts marriage to opposite-sex couples constitutes unfair discrimination on the ground of sexual orientation in violation of section 9 of the Constitution and infringes the right to dignity under section 10. Courts have a constitutional obligation under sections 8(3), 39(2) and 173 to develop the common law to accord with the spirit, purport and objects of the Bill of Rights. Where the common law is deficient in protecting constitutional rights, and legislation does not give effect to those rights, courts must develop the common law appropriately. The exclusion of same-sex couples from marriage denies them the legal protections, benefits and social recognition afforded to married couples, despite their equal capacity to form permanent, committed relationships and establish family life. Extending the common law definition of marriage to same-sex couples constitutes an incremental development of the common law rather than a fundamental change requiring legislative intervention. The reformulated definition is: "Marriage is the union of two persons to the exclusion of all others for life."

Cameron JA observed that South Africa's Constitution was unique when adopted in 1994 as the first in the world to expressly prohibit discrimination on the ground of sexual orientation. He noted that the paradox of South Africa's constitutional history—coming from oppression by law to seeking freedom through regulation by law—demanded a generous and inclusive approach to constitutional protections. Cameron JA emphasized that developing the common law does not intrude on religious freedom, as section 31 of the Marriage Act ensures ministers of religion cannot be compelled to solemnize marriages contrary to their religious tenets. Farlam JA discussed extensively the historical development of marriage law from Roman times through the Reformation to modern South African law, emphasizing that law is concerned only with marriage as a secular institution. He noted that procreative capacity is not a defining characteristic of marriage. Farlam JA also observed that Parliament may prefer incremental development of same-sex partnership rights through the courts rather than comprehensive legislation, and that courts must maintain a "weather eye" on community values while adhering to constitutional obligations. Both judgments referenced extensive international jurisprudence and developments in other jurisdictions, particularly Canada and the United States.

This landmark decision was the first by a South African appellate court to extend the common law definition of marriage to include same-sex couples. It recognized that the Constitution's prohibition of unfair discrimination on the ground of sexual orientation requires substantive equality for LGBTQI+ persons. The case affirmed that permanent same-sex relationships are capable of establishing consortium omnis vitae and family life indistinguishable from heterosexual marriages. It demonstrated the courts' duty to develop the common law in accordance with the Bill of Rights. The decision influenced subsequent Constitutional Court consideration of the issue and contributed to South Africa's eventual legislative recognition of same-sex marriage through the Civil Union Act 17 of 2006. The case is significant in the global context as South Africa became one of the first countries in the world to constitutionally protect sexual orientation and recognize same-sex marriages.