Marie Adriaana Fourie and Cecelia Johanna Bonthuys v The Minister of Home Affairs and The Director General: Home Affairs

The applicants are two women who have been living together as partners in a permanent same-sex relationship since June 1994. They approached the Pretoria High Court seeking a declaratory order that a marriage between them would be legally binding under the Marriage Act 25 of 1961, and an order directing the respondents to register their relationship as a marriage. The High Court (Roux J) dismissed their application on 18 October 2002, holding that under common law marriage is the legal union of a man and a woman, and that the Marriage Act contemplates marriage between a male and a female only. The court also ordered the applicants and The Lesbian and Gay Equality Project (amicus curiae) to pay the respondents' costs. The applicants then sought leave to appeal directly to the Constitutional Court under Rule 18.

• Whether the application raised a constitutional matter suitable for direct appeal to the Constitutional Court
• Whether it is in the interests of justice to grant leave to appeal directly to the Constitutional Court rather than the Supreme Court of Appeal
• Whether the High Court's dismissal of the application on the basis that same-sex marriages are not recognized under common law or the Marriage Act involved constitutional issues
• Whether the common law definition of marriage should be developed to include same-sex couples
• Whether the exclusion of same-sex couples from marriage violates constitutional rights to dignity and equality

The application for leave to appeal directly to the Constitutional Court was refused. No order as to costs was made.

When a constitutional matter involves the development of the common law, particularly in complex areas affecting core legal institutions such as marriage and with implications across multiple areas of law, it is ordinarily not in the interests of justice for an appeal to be brought directly to the Constitutional Court without first being considered by the Supreme Court of Appeal. The Supreme Court of Appeal's expertise and jurisdiction in developing the common law makes its views particularly important in such matters, even where constitutional rights are engaged. The interests of justice include considerations of the coherent and harmonious development of the common law within the constitutional context, not merely considerations of cost and speed. The fact that prospects of success may be high does not alone determine whether direct access to the Constitutional Court is appropriate.

The Court noted that at least 44 Acts of Parliament make reference to 'husband' and/or 'wife' either in the body of the Act or in regulations, including in areas such as citizenship, family violence, sexual offences, insolvency, child care, divorce, taxation, compensation, criminal procedure, shipping, pensions, and various other areas of law. This observation highlighted the complexity and far-reaching implications of any decision on same-sex marriage. The Court also observed that whether the relief formulated by the applicants would be appropriate and sufficient to secure effective relief for them if they succeeded was not a matter that needed to be decided in the application for direct access. The Court further noted that the applicants had not sought a declaration of constitutional invalidity of the Marriage Act or Identification Act, nor had they sought an order for the development of the common law to make provision for same-sex partnerships with appropriate consequences, although such relief would clearly have raised constitutional matters.

This case is significant in South African jurisprudence as it illustrates the Constitutional Court's approach to determining when it is appropriate for appeals to come directly to it versus first being considered by the Supreme Court of Appeal. The case demonstrates the Court's recognition that complex matters involving the development of common law, particularly in fundamental areas such as marriage and family law with wide-ranging statutory implications, should benefit from the Supreme Court of Appeal's expertise before reaching the Constitutional Court. The case is also historically important as it was part of the evolving litigation concerning same-sex marriage rights in South Africa, which ultimately led to the landmark Fourie judgment by the Constitutional Court in 2005 (2006 (1) SA 524 (CC)) that resulted in the recognition of same-sex marriages. This 2003 decision on direct access demonstrates the Court's careful consideration of procedural and systemic justice considerations, even when substantive constitutional rights of significant importance are at stake.