Duplan v Loubser NO and Others (24589/2015) [2015] ZAGPPHC 849 (23 November 2015)

Duplan v Loubser NO and Others (24589/2015) [2015] ZAGPPHC 849 (23 November 2015)

The court held that, despite the promulgation of the Civil Union Act, the Constitutional Court's reading-in remedy in Gory v Kolver NO remains operative, as Parliament has not specifically amended s 1(1) of the Intestate Succession Act to exclude permanent same sex life partners who have undertaken reciprocal duties of support. The applicant, having lived in a permanent same sex partnership with the deceased and undertaken reciprocal duties of support, qualifies as a 'spouse' for intestate succession purposes. The court is bound by the doctrine of stare decisis and must apply the reading-in remedy. The applicant is therefore entitled to inherit the deceased's entire intestate estate, and...

Citation
[2015] ZAGPPHC 849
Parties
Applicant: Eric Juan Spiridion Duplan; Respondent: Rasmus Elardus Erasmus Loubser NO; Respondent: Gerhardus Jansen van Vuuren; Respondent: ABSA Bank Limited; Respondent: The Master of the High Court; Respondent: The Registrar of Deeds, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 November 2015
Case Number
24589/2015
Procedural Posture
Civil Application / Judgment on Stated Case
Outcome
Application granted in favour of the applicant.
Judges
GC Muller
Legal Topics
Intestate Succession, Same Sex Partnerships, Civil Union Act, Reading in Remedy, Equality Clause, Stare Decisis
Family and Children Constitutional Law Intestate Succession Same Sex Partnerships Civil Union Act Reading in Remedy Equality Clause Stare Decisis

Case Brief

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Parties

Eric Juan Spiridion Duplan

Applicant

Rasmus Elardus Erasmus Loubser NO

Respondent

Gerhardus Jansen van Vuuren

Respondent

ABSA Bank Limited

Respondent

The Master of the High Court

Respondent

The Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Civil Application / Judgment on Stated Case

Legal Issues

  1. 1 Whether a partner in a permanent same sex life partnership, not solemnised or registered under the Civil Union Act, qualifies as a 'spouse' for purposes of intestate succession under s 1(1)(a) of the Intestate Succession Act.
  2. 2 Whether the Constitutional Court's reading-in remedy in Gory v Kolver NO remains operative after the promulgation of the Civil Union Act.
  3. 3 Whether the applicant is entitled to inherit the deceased's estate as the only intestate heir.

Ratio Decidendi

The court held that, despite the promulgation of the Civil Union Act, the Constitutional Court's reading-in remedy in Gory v Kolver NO remains operative, as Parliament has not specifically amended s 1(1) of the Intestate Succession Act to exclude permanent same sex life partners who have undertaken reciprocal duties of support. The applicant, having lived in a permanent same sex partnership with the deceased and undertaken reciprocal duties of support, qualifies as a 'spouse' for intestate succession purposes. The court is bound by the doctrine of stare decisis and must apply the reading-in remedy. The applicant is therefore entitled to inherit the deceased's entire intestate estate, and...

Court Disposition

Application granted in favour of the applicant.

Orders

  • It is declared that the applicant is the only intestate heir of the estate of Cornelius Daniel Loubser who died on 13 February 2015.
  • The first respondent is removed as the appointed executor of the deceased estate of the late Cornelius Daniel Loubser.