Edwin Cameron

“ It was because the majority of South Africans had experienced the humiliating legal effect of repressive colonial conceptions of race and gender that they determined that henceforth the role of the law would be different for all South Africans. Having themselves experienced the indignity and pain of legally regulated subordination, and the injustice of exclusion and humiliation through law, the majority committed this country to particularly generous constitutional protections for all South Africans. ”

“ Developing the common law involves a simultaneously creative and declaratory function in which the court puts the final touch on a process of incremental legal development that the Constitution has already ordained. This requires a deepening understanding of ourselves and our commitment to each other as South Africans across the lines of race, gender, religion and sexual orientation. ”

“ In any event the Constitutional Court has held that ‘from a legal and constitutional point of view procreative potential is not a defining characteristic of conjugal relationships’. [34]
[18] ⁠The appellants moreover do not seek to limit procreative heterosexual marriage in any way. They wish to be admitted to its advantages, notwithstanding the same-sex nature of their relationship. Their wish is not to deprive others of any rights. It is to gain access for themselves without limiting that enjoyed by others. ”

“ The focus in this case falls on the intrinsic nature of marriage, and the question is whether any aspect of same-sex relationships justifies excluding gays and lesbians from it. What the Constitution asks in such a case is that we look beyond the unavoidable specificities of our condition—such as race, gender and sexual orientation—and consider our intrinsic human capacities and what they render possible for all of us. ”

“ But it is action no less. The statutory formula in other words encodes a ‘performative utterance’ [50] which the statute requires as a precondition to the happening of the marriage and its legal consequences.
[33] ⁠In my view where the legislature prescribes a formula of this kind its words can not be substituted by ‘updating’ interpretation. If the Court, and not the legislature, is to make a constitutionally necessary change to such a formula, that must be done not by interpretation but by the constitutional remedy of ‘reading in’. ”

“ This Court has now developed it to encompass same-sex marriages. The impediment the statute presents to the broader relief the appellants seek is only partial. This lies in the fact that s 30 (1) prescribes a default—but not exclusive—marriage formula. That formula must be used by (a) marriage officers who are not ministers of religion or persons holding a ‘responsible position’ in a religious denomination or organisation; and (b) marriage officers who are ministers of religion or who do hold such a position, but whose marriage formulae have not received ministerial approval. ”

“ Legislation is the province of Parliament. If granting the remedy of ‘reading in’ does not intrude on the legislative domain, then development of the common law in accordance with the Constitution—the particular responsibility of the judiciary—does so even less. [44] ⁠The reference in the judgment of Farlam JA to the recent decision of the Constitutional Court in Zondi v Member of the Executive Council for Traditional and Local Government Affairs (15 October 2004) does not, with respect, take the matter any further. ”

“ For though oppression on the ground of sexual orientation was not paramount in the scheme of historical injustice, it formed part of it, and the negotiating founders deliberately committed our nation to a course that disavowed all forms of legalised oppression and injustice. ”

“ The South African public and their elected representatives have for the greater part accepted the sometimes far-reaching decisions taken in regard to sexual orientation and other constitutional rights over the past ten years. It is not presumptuous to believe that they will accept also the further incremental development of the common law that the Constitution requires in this case. ”

“ Consensual sexual conduct between adults in private has been freed from criminal restriction, not only because sexual orientation is specifically listed in the Bill of Rights, but on wider grounds of dignity and privacy. [9] Same-sex partners have been held to be entitled to access to statutory health insurance schemes. [10] The right of permanent same-sex partners to equal spousal benefits provided in legislation has been asserted. [11] The protection and nurturance same-sex partners can jointly offer children in need of adoption has been put on equal footing with heterosexual couples. ”

“ Though apartheid used legal means to exclude the majority of this country's people from civic and material justice, the law—embodied in a detailed founding document—would now form the basis for our national aspirations. ”

“ At issue is access to an institution that all agree is vital to society and central to social life and human relationships. More than this, marriage and the capacity to get married remain central to our elf-definition as humans. ”

“ SA 936 (CC) para 30, per O'Regan J for the Court (‘such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others’) . ↑ National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) para 37 (‘A notable and significant development in our statute law in recent years has been the extent of express and implied recognition the Legislature has accorded same-sex partnerships’) . ”

“ Department of Home Affairs 2003 (5) SA 621 (CC) para 23 (‘Comprehensive legislation regularising relationships between gay and lesbian persons is necessary’) . ↑ Compare Halpern v Attorney-General of Canada 225 DLR 529 (Ontario Court of Appeal) para 104 (piecemeal legislation extending benefits to same-sex couples may impose preconditions while ‘married couples have instant access to all benefits and obligations’) . ↑ Tshepo L Mosikatsana ‘The Definitional Exclusion of Gays and Lesbians from Family Status’ (1996) 12 SAJHR 549 566. ”