Court: No gay consummation

2002-10-18 21:35

Pretoria - The Lesbian and Gay Equality Project (LGEP) on Friday said it had expected that the Pretoria High Court would dismiss an application by lesbian couple Marie Fourie and Cecilia Bonthuys for same sex marriages be legalised, recognised and registered.

"The ruling was expected in view of the problems expressed by the pesiding jdge (Mr Justice Pierre Roux) in regards to the manner in which the Notice of Motion was drafted," LGEP acting director Evert Knoesen said in a statement.

"As a result, the application was dismissed with costs on the basis of the legal technical difficulties."

Knoesen stressed that Roux made no finding on the legal merits of same sex marriages.

"There were some shortcomings in the manner in which (Fourie and Bonthuys) presented their case. As a friend of the court (amicus curiae) we were not in a position to correct these. We nevertheless regret the outcome," Knoesen said.

However, as the judgment in no way addressed the merits of same sex marriage, all legal avenues remained open.

"It will be fair to assume that we will pursue this legal principal in due course."

Procreating not central to marriage

Knoesen went on to express concern regarding some remarks made by the judge.

"We are concerned about some remarks made by the judge, particularly relating to his view that lesbian and gay marriages could not be consummated, which on the face of it, seems to be out of step with the position of the Constitutional Court, which holds that ability to procreate is not central to a marriage.

"We also had difficulty understanding why the judge maintained that he thought it unlikely that any marriage officer in Pretoria would ever agree to marry same sex couples regardless of what the law said.

"One would have thought that if no one else, at least (the one self-acknowleged) lesbian judge (on the bench of the) Pretoria High Court, would be willing to perform such a marriage, if the law allowed for it. In any other context these remarks would have been considered homophobic," Knoesen said.

Roux ruled that the matter was of a constitutional nature and that he was not prepared to exercise his own discretion. The law considered marriage the union of one man and one woman, and nothing that he was aware of had changed.

The couple expressed their disappointment on the ruling and indicated that they would appeal.

- SAPA