IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No CCT 60/04

In the matter between:

MINISTER FOR HOME AFFAIRS ( FIRST APPLICANT)

AND

DIRECTOR GENERAL OF HOME AFFAIRS (SECOND APPLICANT)

AND

MARIE ADRIAANA FOURIE (FIRST RESPONDENT)

AND

CECELIA JOHANNA BONTHUYS (SECOND RESPONDENT)

In the Application of Doctors for Life International to be admitted as amicus

curiae

FOUNDING AFFIDAVIT

I, the undersigned,

JOHN JACKSON SMYTH

MAKE OATH, and say as follows:

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1. I am a retired member of the Bar of England and Wales, and was appointed

Queen’s Counsel in 1979. I now reside in South Africa and work as a voluntary

legal adviser to Doctors for Life International (hereinafter called ‘DFL’). I am

authorised to make this affidavit on their behalf.

2. The applicant is a non-profit making association registered under section 21

of the Companies Act No. 61 of 1973. The association was founded in South

Africa in 1991 and has spread to other parts of the world. It has a registered

membership of approximately 1100 doctors comprising professors of medicine,

medical specialists, doctors, and dentists, about three-quarters of whom are South

Africans.

3. Doctors for Life is extremely active as a humanitarian organisation in all

matters relating to health care. Examples are building and running care centres for

AIDS orphans in the rural areas, promoting HIV/AIDS initiatives, assisting

victims of abuse and prostitution, running projects promoting awareness of

harmful substance abuse and much more.

4. The association is also committed to upholding the Constitution and the law

in all matters relating to health. To this end the Company runs a small legal

department staffed by volunteers.

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5. Since the SCA judgement in this matter was handed down on November 30

2004, I have been in touch with counsel and attorneys for the parties. I wrote, on

behalf of DFL, to the Minister of Home Affairs, on 3 December 2004, asking her

to lodge an appeal in this case and informing her that we wished to intervene as

amicus curiae. I went on leave on December 16th and returned to work on

January 17th 2005. I discovered immediately that an appeal had been lodged on

December 23 2004.

6. On 24 January I faxed a letter to both the State Attorney ( acting on behalf

of the Applicants) and to the Respondents’ attorney, Mr van den Berg, asking for

their consent to the intervention of myself and DFL as amici curiae. Both have

indicated on the telephone that they are happy to consent but no written consents

have been forthcoming. Hence this application under Rule 10(4).

7.. DFL’s INTEREST IN THE PROCEEDINGS:

7.1 In January 2004 DFL submitted a 63 page submission to the South African
Law Reform Commission relating setting out the health implications, and the
implications for family life, which would be likely to follow a change in the law
relating to the definition of marriage. This was a highly researched document with
no less than 10 pages of references at the end. DFL desire to place before the
Court an abbreviated version of these submissions in so far as they are relevant to
the present issue.
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7.2 Accordingly DFL approach the Court under sub- sections 38(d) and (e) of
the Constitution.

8.. DFL’S POSITION IN THE PROCEEDINGS will be to support the

Applicants. They ask the Court to study their written submissions. They do not
ask for permission to present oral argument., but they do desire to introduce a
limited amount of material pursuant to Rule 31. Such material will be screened as
far as possible to ensure it complies with the two provisos of Rule 31.

9. THE SUBMISSIONS DFL WILL ADVANCE:

The Headings are as follows:

• The Importance and Value of traditional heterosexual marriage to the

partners and to the children. Statistics will be included.

• The disadvantages of same sex relationships from a Health point of view,

physically and mentally.

• Some evidence on the issue of to what extent same sex relationships are

monogamous and lasting.

• Statistics as to the increased risk of exposing children to sexual molestation

in homosexual families.

• The evidence that shows that homosexuality is learned rather than

inherited. This is particularly relevant to the issue of ‘choice’ which the

learned Justices of Appeal regarded as of such importance in the SCA.

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• The right to sexual orientation cannot be regarded as absolute – some of the

legal implications of giving legal recognition to same sex relationships.

• Reasons why Heterosexual marriage should therefore enjoy special

privileges.

10. The judgements of Cameron JA and Farlam JA in the SCA would suggest

that none of these matters was argued at the Bar in the SCA, and accordingly we

believe they will be of great value to the Court and different from the submissions

of other parties.

11. Accordingly we ask this Honourable Court for leave to intervene as amicus

curiae in order to present written argument.

…………………………………………….JOHN JACKSON SMYTH

THUS SIGNED AND SWORN BEFORE ME AT UMHLANGA ROCKS ON

THIS DAY OF FEBRUARY 2005, THE DEPONENT HAVING
ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE
CONTENTS OF HIS AFFIDAVIT, HAS NO OBJECTION TO TAKING THE
PRESCRIBED OATH AND CONSIDERS IT BINDING ON HIS
CONSCIENCE.

_________________________

COMMISSIONER OF OATHS