'Glitch' in gay marriage case

2002-10-16 15:07

Pretoria - Indications were on Wednesday that an application brought before the Pretoria High Court by a lesbian couple wanting their union formalised, would not be handled as a test case.

An apparent glitch in their notice of motion prompted Judge Pierre Roux to state that he could not consider the wider question of gay and lesbian marriages.

The wording of the notice limited him to deciding whether the union of Marie Adriaana Fourie and Cecelia Johanna Bonthuys should be legally recognised as a marriage, the judge said.

The document made no mention of the marital rights of homosexuals in general, and these could therefore not be considered by the court.

Roux is to deliver judgment on Friday morning.

Pieter Oosthuizen, for the applicants, urged the court to develop the common law, currently recognising only marital unions between heterosexual couples, to also include gay and lesbian marriages.

This was their constitutional right, he argued. The court had a duty to develop the common law where it was in conflict with the constitution.

"These people are being discriminated against because of their sexual orientation," Oosthuizen told the court. "They are not asking the State for any favours, they are asking the court to recognise their rights."

He referred to Constitutional Court judgments granting gays and lesbians other rights as partners such as joint adoption and sharing certain employment benefits.

"Instead of them having to go to court on an ad hoc basis every time to be given access to marital rights, they are now asking the court to recognise that very right of marriage.

"You have the privilege today to put the last piece in the jig-saw puzzle," Oosthuizen said.

Arguments were also led as to whether the Lesbian and Gay Equality Project should be joined to the case as an amicus curiae, or friend of the court. Judgment in this matter was also reserved.

For the project, Danny Berger argued that many other marriage laws had been changed over the years. At one stage, for example, it was unlawful for black and white South Africans to tie the knot.

"That law has been repealed," Roux responded. "But that still does not allow a black man to marry a white man."

Berger also argued that the state gave no justification for denying homosexuals the right to marry.

On the question of potential procreation, he said this was no longer considered a prerequisite for marriage to be legal. Such a view would also be offensive to heterosexual couples unable to have children.

Roux pointed out that what was being asked of him was impossible. The notice of motion required of him only to rule on whether Fourie and Bonthuys were legally married.

And in terms of the law, they were not, he said. The Marriage Act required such a union to be officiated over by a marriage officer, which did not happen in this case.

"Do you want me just to ignore that?" the judge asked. "I can say this, that and the other is highly desirable, but I can't change the plain provisions of the act."

] Solly Sithole, SC, argued for the minister and director-general of home affairs that the court could not give legal embodiment to "what they call a marriage".

Exchanges between the advocates and the judge made for several lighter moments.

Questioned about the consummation of gay marriages, Berger told Roux: "But gay and lesbian couples have sex all the time."

"I am sure they do," the judge retorted. "Or else there is no point to the union."

Non-consummation of a marriage is a basis for an annulment.

As Oosthuizen and Berger were swapping notes at one point, Roux told the pair: "I can see the two of you are in cahoots. Just don't get married." Berger replied that Oosthuizen was not his type.

- SAPA