South Africa has a ‘mixed legal system’ comprised of influences from Roman-Dutch law, English law and indigenous customary law. The foundation of South African common law is Roman Dutch law . This was derived from Roman law and applied in Holland during the 17th-18th centuries and then brought to South Africa by the Dutch settlers in 1652 . In the Fourie case , the common law definition of marriage was challenged, and it was declared that it excluded same-sex unions. It was requested that the common law be developed to accommodate for them. The court considered this matter one of importance as it is the duty of the judiciary to develop the common law in line with, and promoting the values of the Constitution, in terms of section 39(2) . Thus, the courts, in this case, had to consider the origins of the common law definition, which is Roman Law. Only by analysing the Roman Law definitions and its influences on South African common law, would the courts be able to determine whether the development of this definition would be necessary.
The case began when the two applicants, Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys, a lesbian couple, approached the courts as they wanted to be legally married. They argued that they were unable to celebrate the love and commitment as a couple due to the exclusion of gay and lesbian people in the common law definition of marriage, which only accommodated for heterosexual couples, the definition stating that marriage in South Africa is a union of one man with one woman. They felt that the common law violated their right to dignity, non-discrimination and protection of the law in the Constitution.
Because of the fact that the South African common law is derived from Roman Law, and because the particular case at hand questioned the Constitutionality of the common law that it was relevant to look at the history of views on marriage in Roman Law. In the SCA judgement there is a complete section dedicated to the analysis and background of Roman Law customs and views on marriage and how they have developed before reaching South Africa from paragraph 68 to 82 . To summarize, it says that the Romans did not regard marriage (matrimonium) to be a legal relationship but rather a social one, later with the influence of Christianity it became a religious one, in which only God had a say. When Roman Law was applied in Holland, the introduction of civil marriage came about due to the Political Ordinance of 1580. This version of Roman-Dutch law is what arrived in South Africa and provided the foundations for our common law. However, despite its continuous growth throughout the centuries, Roman Law, in any of its forms had never made provision for same-sex marriages . And in fact, due to religious control, did not permit sodomy. The section also makes it clear that court has no intention to interfere with religious institutions or their opinions on same sex marriage but rather it deals only with secular institutions . And because marriage in South Africa is based on Roman Dutch Law, it is based legally on secular institutions and magistrates granting civil marriages, because the basic ideals of this policy have not changed since it reached S.A. along with the Dutch in 1652. Thus, the exclusion of same-sex couples from secular marriage is an issue of legality and involves the courts having to develop the common law, as such rules are not in line with the values of the Constitution.
The Hight Court held that the appellants had not challenged the Constitutionality of the Marriage Act and thus should not be given an order allowing them to be legally married. The Supreme Court of Appeal held in the majority that until a challenge to the Marriage Act was made, the right of same-sex couples to be secularly married would have to wait, but in the meanwhile the common law should be developed to embrace same-sex marriage. Cameron JA saying, “The current common law definition of marriage deprives committed same-sex couples of this choice. In this our common law denies gays and lesbians who wish to solemnise their union a host of benefits, protections and duties” The minority however, also believed the development should be suspended to allow Parliament time to enact better legislation.
The Constitutional court ruling lead by Sachs J determined that by failing to allow same-sex couples the same status, entitlements and responsibilities as heterosexual couples in marriage, the common law and the Marriage Act were unjustly violating their rights to equal protection of the law under section 9(1) and to not be discriminated against unfairly in terms of section 9(3) . It also ruled that under section 10 , their rights to dignity were being violated by such a failure.
It stated that there is a “need for common law to be consonant with a completely new and different set of legal norms.” And that it therefore urged that courts “remain vigilant and not hesitate to ensure that common law is developed to reflect the spirit, purport and objects of the Bill of Rights”.
To provide a more comprehensive background on South African law concerning same-sex marriages we must look at the history of rules and views that have developed on marriage, beginning with Roman Law.
In Ancient Rome there were two forms of marriage. Matrimonium non iustum was a relationship between one woman and one man who wanted to marry but were unable to in terms of Roman law, and iustum matrimonium were formally recognized marriages. Early Germanic law practiced marriage in a similar way to the lobolo of indigenous customary law. In the Late Middle Ages, marriage came under the jurisdiction of the Roman Catholic Church, this resulted in divorce being made illegal, a human could not dissolve a marriage because according to Canon law, marriage was a natural bond bestowed by the grace of God. This still had a real impact on modern South Africa. After the Renaissance or Reformation, the views on marriage in society altered, it transformed from identifying only with religious values and institutions and to recognizing nonreligious institutions. This was conferred to Holland which was the first country in Europe to introduce civil marriages . This affected South African law as this is where our common law originates.
During the apartheid the Dutch Reform Church had a profound authority and link to the state. The State was notorious during this time to interfere with the private sphere of people’s lives, and so all private conduct deemed ‘wrong’ by the National Party or the church were unacceptable. First introduced was the Immorality Act 5 of 1927, which was replaced by the Sexual Offences Act 23 of 1957 , both of which restricted and discriminated against same-sex couples. This regime treated gays, lesbians and other sexual minorities as criminals and excluded them from society.
After the first democratic elections in 1994, the Interim Constitution and the Constitution of the Republic of South Africa were introduced to free the marginalised from oppression and create a free, open and democratic society. One of the goals stated in the preamble of the Constitution is to, “Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law” . This means all people, including those of differing sexual orientations, are to be seen as equal, dignified and protected by the law. Thus, the judiciary aims to develop any common law which does not meet the standards of the constitution. Some discriminatory laws still exist but the process of reforming them is a continuous and important priority of the courts. It is evident that discriminatory and oppressive values of the past systems that have influenced and made up the foundations of South African law still exist, some of these ostracising principles stemming as far back as Roman Law. That is why cases such as the Fourie case are important for the development of our common law to be in line with the Constitution. Many principles of Roman Law are still applicable in the South African legal system but in this case, Roman law was used to trace the origins of an inequitable principle or law in order to reform or replace it to further promote equality, freedom and dignity in our country.