Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC) (23 November 2006)

Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC) (23 November 2006)

Section 1(1) of the Intestate Succession Act 81 of 1987 is unconstitutional to the extent that it excludes permanent same-sex life partners from intestate succession rights, as this constitutes unfair discrimination on the ground of sexual orientation and violates the rights to equality and dignity. The appropriate remedy is to read in after the word 'spouse' the words 'or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support', with effect from 27 April 1994. The order operates retrospectively, except that completed transfers to bona fide third parties not on notice of a legal challenge are protected. Ancillary orders regarding...

Citation
[2006] ZACC 20
Parties
Applicant: Mark Gory; Respondent: Daniel Gerhardus Kolver NO; Respondent: Henry Harrison Brooks; Respondent: Maryke Brooks; Respondent: Master of the High Court, Pretoria; Respondent: Minister of Justice and Constitutional Development; Applicant: Erilda Starke and Others; Applicant: Bobby Lee Bell
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
23 November 2006
Case Number
CCT 28/06
Procedural Posture
Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity; Leave to Appeal Ancillary Orders; Applications for Intervention
Outcome
Application for confirmation granted; section 1(1) of the Intestate Succession Act declared unconstitutional and invalid to the extent of the omission; remedy of reading-in ordered; order operates retrospectively with protection for bona fide third parties; ancillary orders confirmed or set aside as specified;...
Judges
Van Heerden AJ, Langa CJ, Moseneke DCJ, Kondile AJ, Madala J, Mokgoro J, O'Regan J, Sachs J, Van der Westhuizen J, Yacoob J
Legal Topics
Intestate Succession, Equality Clause, Reading in Remedy, Retrospectivity of Invalidity, Same Sex Partnerships, Constitutional Invalidity
Constitutional Law Family and Children Intestate Succession Equality Clause Reading in Remedy Retrospectivity of Invalidity Same Sex Partnerships Constitutional Invalidity

Case Brief

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Parties

Mark Gory

Applicant

Daniel Gerhardus Kolver NO

Respondent

Henry Harrison Brooks

Respondent

Maryke Brooks

Respondent

Master of the High Court, Pretoria

Respondent

Minister of Justice and Constitutional Development

Respondent

Erilda Starke and Others

Applicant

Bobby Lee Bell

Applicant

Procedural Posture

Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity; Leave to Appeal Ancillary Orders; Applications for Intervention

Legal Issues

  1. 1 Whether section 1(1) of the Intestate Succession Act 81 of 1987 is unconstitutional for excluding permanent same-sex life partners from intestate succession rights.
  2. 2 What is the appropriate remedy for the constitutional invalidity found in section 1(1) of the Act.
  3. 3 Whether the remedy should operate retrospectively or prospectively.

Ratio Decidendi

Section 1(1) of the Intestate Succession Act 81 of 1987 is unconstitutional to the extent that it excludes permanent same-sex life partners from intestate succession rights, as this constitutes unfair discrimination on the ground of sexual orientation and violates the rights to equality and dignity. The appropriate remedy is to read in after the word 'spouse' the words 'or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support', with effect from 27 April 1994. The order operates retrospectively, except that completed transfers to bona fide third parties not on notice of a legal challenge are protected. Ancillary orders regarding...

Court Disposition

Application for confirmation granted; section 1(1) of the Intestate Succession Act declared unconstitutional and invalid to the extent of the omission; remedy of reading-in ordered; order operates retrospectively with protection for bona fide third parties; ancillary orders confirmed or set aside as specified;...

Orders

  • The application for leave to intervene by the first to fourth intervening parties is granted, with no order as to costs.
  • The conditional application for leave to intervene by Mr Bobby Lee Bell is granted, with no order as to costs.