Fourie and Another v Minister of Home Affairs and Another

The applicants, two women in a permanent same-sex relationship since 1994, applied to the Pretoria High Court for a declaratory order that their relationship constituted a legally valid marriage under the Marriage Act 25 of 1961, and for an order directing the Minister and Director-General of Home Affairs to register their relationship as a marriage. The High Court dismissed the application, holding that under the common law and the Marriage Act, marriage was limited to a union between a man and a woman, and that the court could not compel the respondents to act unlawfully. The applicants then sought leave to appeal directly to the Constitutional Court against the High Court’s decision.

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

This case clarified the Constitutional Court’s approach to direct appeals and reinforced the principle that matters involving the development of the common law should ordinarily be considered first by the Supreme Court of Appeal. Although not deciding the merits of same-sex marriage, the judgment formed part of the jurisprudential pathway leading to later recognition of same-sex marriage in South Africa.