Last year the Supreme Court of Appeal ruled that the two should be allowed to get married but they later found that they were unable to register their Pretoria church wedding at the Department of Home Affairs.

The departments of Justice and Home Affairs were yesterday seeking leave to appeal against the SCA judgment on the grounds that only Parliament, not the courts, can amend legislation and that the court had ruled on something it had not actually been asked to do.

In a separate application yesterday, the couple and an alliance of gay and lesbian organisations asked that the marriage formula under the Marriage Act of 1961 be changed to include the words "or spouse" instead of the current "husband" and "wife".

Currently same sex couples may marry, but the marriage will not be recognised in law.

"Marriage today is a far cry from the classical concept of marriage," the couple's legal representative Pieter Oosthuizen told the court.

He said the focus on procreation in marriage was now socially and technologically obsolete.

"Procreation is not a defining characteristic of conjugal relations. This would be doubly offensive to those couples who are not able to procreate." The court heard that gay and lesbian couples could adopt children under the Children's Act, artificial insemination was available and children from previous unions were brought into relationships as with heterosexual couples.

"Developing separate rules for marriage for gays would be like separate development under the old apartheid regime," Oosthuizen said.

After exhaustive questioning, the court heard that children in same sex marriages, either from artificial insemination or from previous relationships, would be subject to the same laws as children in heterosexual relationships.

Earlier, the Marriage Alliance's Gerrit Pretorius said that heterosexual marriage would be diluted if same sex marriage was allowed.

"The reason why marriage was so successful was because it addressed procreation and the continuation of society in a particular form," he said.

But this does not prevent the elderly or people unable to conceive from being married, said Judge Kate O'Regan. "Nobody said that 'unless you can prove that you can procreate, you are not going to get married'."

Doctors for Life said the Bible spoke out strongly against homosexuality, and allowing same sex marriages would cause "violence to the mind and spirit" of deeply religious people.

Quoting a series of passages from the Bible on God's instructions that a man and a woman must "cleave" together to procreate, John Smyth was interrupted by Judge Albie Sachs who said it would be a "worrying day" if judges were asked to give meaning to religious texts.

Daniel Berger, representing a group of gay and lesbian organisations, said that for many gay people the solution was to find a religious person who would marry them.

"But not every lesbian or gay person is religious or wants to get married in church. The problem is that gay people can't go to the magistrate's court to get married."

Gay and lesbian couples did not want to tamper with the religious aspects of marriage - they just wanted the state not to discriminate against them.

At the beginning of the application, the public gallery gasped and laughed when the Department of Home Affairs' legal representative Marumo Moerane said: "Same-sex partnerships are a relatively new phenomenon ... We don't know whether single-sex relationships involve the idea of mutual support."

A woman who wanted to be identified only as Joan told an early morning press briefing: "When I was born in this country, I was given the right to be married. Now because I'm gay I don't have that right."

This had implications for custody of children and how estates were wound up without a will, she said.A number of sangomas sat in the public gallery.

"If a lesbian comes to a sangoma, we must accept them; we are not above God," said Nkomoyahlaba Baloyi, president of the National Herbalists and Nyangas' Association. - Sapa