Gory v Kolver NO and Others (4928/05) [2006] ZAGPHC 28; [2006] 2 All SA 640 (T); 2006 (7) BCLR 775 (T); 2006 (5) SA 145 (T) (31 March 2006)

Gory v Kolver NO and Others (4928/05) [2006] ZAGPHC 28; [2006] 2 All SA 640 (T); 2006 (7) BCLR 775 (T); 2006 (5) SA 145 (T) (31 March 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 who have undertaken reciprocal duties of support from inheriting as intestate heirs. The applicant and the deceased were in such a partnership, and the applicant is entitled to inherit as sole heir. The omission of same-sex partners from the definition of 'spouse' constitutes unfair discrimination on the basis of sexual orientation, violating the constitutional right to equality and dignity. The appropriate remedy is to read in the words 'or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of...

Citation
[2006] ZAGPHC 28
Parties
Applicant: Mark Gory; Respondent: Daniel Gerhardus Kolver NO; Respondent: Henry Harrison Brooks; Respondent: Maryke Brooks; Respondent: Laeequ Eyssen; Respondent: Mogamat Sedick Eyssen; Respondent: Master of the High Court, Pretoria; Respondent: Minister of Justice and Constitutional Development
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
31 March 2006
Case Number
4928/05
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Application granted. Section 1(1) of the Intestate Succession Act declared unconstitutional and words read in to include permanent same-sex life partners. Applicant declared sole heir. Sale of property invalid. Executor removed. Orders suspended pending Constitutional Court confirmation.
Judges
Hartzenberg
Legal Topics
Intestate Succession, Same Sex Partnerships, Constitutional Equality, Reading in, Executor Removal, Property Transfer
Constitutional Law Family and Children Land and Property Intestate Succession Same Sex Partnerships Constitutional Equality Reading in Executor Removal +1 more

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Parties

Mark Gory

Applicant

Daniel Gerhardus Kolver NO

Respondent

Henry Harrison Brooks

Respondent

Maryke Brooks

Respondent

Laeequ Eyssen

Respondent

Mogamat Sedick Eyssen

Respondent

Master of the High Court, Pretoria

Respondent

Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether section 1(1) of the Intestate Succession Act, 81 of 1987 is unconstitutional for excluding same-sex life partners from intestate inheritance.
  2. 2 Whether the applicant and the deceased were in a permanent same-sex life partnership with reciprocal duties of support.
  3. 3 Whether the sale of the deceased's property was valid given the applicant's claim as sole heir.

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 who have undertaken reciprocal duties of support from inheriting as intestate heirs. The applicant and the deceased were in such a partnership, and the applicant is entitled to inherit as sole heir. The omission of same-sex partners from the definition of 'spouse' constitutes unfair discrimination on the basis of sexual orientation, violating the constitutional right to equality and dignity. The appropriate remedy is to read in the words 'or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of...

Court Disposition

Application granted. Section 1(1) of the Intestate Succession Act declared unconstitutional and words read in to include permanent same-sex life partners. Applicant declared sole heir. Sale of property invalid. Executor removed. Orders suspended pending Constitutional Court confirmation.

Orders

  • It is declared that the omission in section 1(1) of the Intestate Succession Act, 81 of 1987 after the word 'spouse', wherever it appears, of the words 'or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support' is inconsistent with the Constitution.
  • Section 1(1) of the Intestate Succession Act is to be read as though the words 'or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support' appear after 'spouse' wherever it occurs.