Johannesburg — THE legislature and not the courts was the best place to develop the law to include the union of same-sex couples, the home affairs department argued before the Constitutional Court yesterday.

The Marriage Act defined marriage and only Parliament could change this, said counsel for the department, Marumo Moerane. The department is appealing against a Supreme Court of Appeals decision that the common-law definition of marriage, which defines marriage as the union between a man and a woman, discriminated against same-sex couples wishing to marry.

"What the applicants in the gay and lesbian sector are seeking is a redefinition of common-law marriage," Moerane said.

Adriaana Fourie and Cecelia Bonthuys, who have been living together since June 1994, approached the Pretoria High Court seeking a declaratory order that their union was legally binding in terms of the Marriage Act. The high court dismissed their application, ruling that marriage was between a male and a female.

They went to the appeal court, which ruled for them, and found the Marriage Act was discriminatory in defining marriage as the union of a man and woman only.

Moerane said the appeal court developed common law in a manner not contemplated by the constitution, violating the principle of the separation of powers.