Justice Moseneke, in the Constitutional Court of South Africa

“ The court held that, under the common law, marriage is the legal union of a man and a woman for the purpose of a lifelong mutual relationship and that the Marriage Act contemplates a marriage between a male and a female, to the exclusion of all others. The court concluded that to require the respondents to register their relationship as a marriage would be to compel them to do what is unlawful. ”

“ When a constitutional matter is one which turns on the direct application of the Constitution and which does not involve the development of the common law, considerations of costs and time may make it desirable that the appeal be brought directly to this Court. But when the constitutional matter involves the development of the common law, the position is different. The Supreme Court of Appeal has jurisdiction to develop the common law in all matters including constitutional matters. ”

“ These issues are of importance not only to the applicants and the gay and lesbian community but also to society at large. While considerations of saving costs, and of “an early and definitive decision of the disputed issues” [20] are in themselves weighty, they should not oust the important need for the common law, read in the light of the applicable statutes, to develop coherently and harmoniously within our constitutional context. The views of the SCA on matters that arise in the appeal are of considerable importance. ”