The detour to Africa's first marriage equality

On 31 July 2003, the South African Constitutional Court in Johannesburg dismissed the application of two women, thereby prolonging a legal battle that would make history a few years later.

Marié Adriaana Fourie and Cecelia Johanna Bonthuys had lived together as a couple since June 1994. They wanted the state to recognise their relationship as a marriage and went to the High Court in Pretoria. There they sought a declaration that a marriage between them would be valid under the Marriage Act of 1961, and an order directing the Department of Home Affairs to register the union. Judge Roux dismissed the case on 18 October 2002: under common law, marriage was the legal union of one man and one woman for life, and the 1961 Act referred exclusively to a man and a woman. The two women were also to bear the costs of the proceedings.

Fourie and Bonthuys wanted to take the case directly to the Constitutional Court, which had already ruled in favour of lesbians and gay men several times. A direct route would save costs, they argued, and restore their rights to equality and dignity more quickly.

Justice Dikgang Moseneke refused on behalf of the unanimous court. The question concerned the development of the common law, and the Supreme Court of Appeal was the first port of call for that; its view would carry particular weight. A footnote in the judgment recorded how deeply marriage was anchored in the law: at least 44 Acts of Parliament referred to "husband" or "wife".

The detour took a good two years. On 30 November 2004, the Supreme Court of Appeal ruled in the couple's favour. On 1 December 2005, the Constitutional Court declared the exclusion of same-sex couples from marriage unconstitutional and gave Parliament one year to act. At the end of November 2006, the Civil Union Act came into force. South Africa thus became the first country in Africa where same-sex couples could marry.