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

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 28/06
MARK GORY Applicant
versus
DANIEL GERHARDUS KOLVER NO First
Respondent
HENRY HARRISON BROOKS Second Respondent
MARYKE
BROOKS Third Respondent
MASTER OF THE HIGH COURT, PRETORIA Fourth
Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Fifth
Respondent
and
ERILDA STARKE AND OTHERS First to Fourth Applicants
for Intervention
and
BOBBY LEE BELL Conditional Applicant for
Intervention
Heard on : 24 August 2006
Decided on : 23
November 2006
JUDGMENT
VAN HEERDEN AJ:
[1]
This case concerns the
constitutional validity of section 1(1) of the Intestate Succession Act 81 of
1987 (the Act) to the extent
that it confers rights of intestate succession on
heterosexual spouses but not on permanent same-sex life partners, as well as the
appropriate remedy should this Court confirm the order of constitutional
invalidity made by the Pretoria High
Court.
Background
[2]
The applicant, Mr Mark Gory,
and the late Henry Harrison Brooks (the deceased) were, at the time of the
latter’s death, partners
in a permanent same-sex life partnership in which
they had undertaken reciprocal duties of support. The factual background of the
relationship between Mr Gory and Mr Brooks is set out fully in the reported
judgment of the High
Court.
[1]
As the factual findings of the High Court in this regard have not been
challenged, it is not necessary to repeat the facts in any
detail.
[3]
When Mr Brooks died
intestate on 30 April 2005, his parents, who were the second and third
respondents in the court below, nominated
the first respondent, Mr Daniel
Gerhardus Kolver, to be appointed by the Master of the High Court, Pretoria (the
sixth respondent
in the court below), as the executor of their son’s
estate. They claimed to be the deceased’s intestate
heirs
[2]
and entitled to his estate.
The resulting dispute with Mr Gory, who also claimed to be the deceased’s
sole intestate heir,
[3]
ultimately
resulted in motion proceedings being instituted by Mr Gory in the Pretoria High
Court in October 2005.
[4]
On 31 March 2006,
Hartzenberg J made the following order:
“1. 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 in the section, 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 of the
Republic of South
Africa.
2. It is declared that
section 1(1)
of the
Intestate Succession Act is
to be
read as though the following words appear therein, after the word
‘spouse’, wherever it appears in the section
– ‘or
partner in a permanent same-sex life partnership in which the partners have
undertaken reciprocal duties of support’.
3. The orders in paragraphs 1 and 2 above shall have no effect on the validity
of any acts performed in respect of the administration
of an intestate estate
that has been finally wound up by date of this order.
4. It is declared that the applicant and the late Henry Harrison Brooks were, at
the time of the death of the deceased, partners
in a permanent same-sex life
partnership in which they had undertaken reciprocal duties of support.
5. It is declared that the applicant is the sole heir of the late Henry Harrison
Brooks.
6. The agreement, dated 9 September 2005 in which the property situated at 152
First Avenue, Bezuidenhout Valley, Johannesburg was
purportedly sold to the
fourth and/or fifth respondents is declared to be of no force and effect. This
particular order has immediate
effect.
7. The applicant is entitled to occupation of the property mentioned in 6 above,
on condition that he pays the monthly bond instalments
and the municipal account
for rates, taxes, water and electricity.
8. The first second and third respondents jointly and severally, the one
complying the other to be absolved, are directed to return
the items on X2, as
amended by me,
[4]
to the applicant.
This order has immediate effect.
9.1
[5]
The first respondent is removed
as executor from the estate of the late Henry Harrison Brooks. This order is
suspended pending confirmation
of the orders in 1, 2 and 3 above.
9.2 Save as specifically dealt with in this order the administration of the
estate of the late Henry Harrison Brooks is suspended
pending confirmation of
the order in 1, 2, 3 and 4
[6]
above.
10. The first respondent is not entitled to remuneration for his services in
connection with the administration of the aforesaid
estate or to be reimbursed
for expenses. This order is suspended pending confirmation of 1, 2, 3 and
4
[7]
above.
11. The first respondent is ordered
de bonis propriis
to pay half of the
costs of the applicant and the second and third respondents, jointly and
severally, the one paying the other to
be absolved, are ordered to pay the other
half of the costs of the applicant. This order is suspended pending confirmation
of the
orders in 1, 2, 3 and 4
[8]
above.”
[5]
The Minister of Justice and
Constitutional Development, the seventh respondent in the court a quo, caused an
answering affidavit to
be filed in that court stating that the application was
moot because of the decision of this Court in
Minister of Home Affairs and
Another v Fourie and Another (Doctors for Life International and Others, Amici
Curiae); Lesbian and Gay
Equality Project and Others v Minister of Home Affairs
and
Others
.
[9]
In addition, it was contended that, while Mr Gory had made out a case for
prospective relief, practical difficulties in connection
with the administration
of relevant deceased estates would result from retrospectivity of an order of
constitutional invalidity.
Thus, it was argued that any such order should be
made to operate only prospectively, alternatively should not apply to those
estates
in which an executor has already been
appointed.
[10]
The Minister did
not, however, formally oppose Mr Gory’s application in the High Court.
Nonetheless, the answering affidavit
deposed to on her behalf in substance
constituted submissions in opposition to the order sought by Mr
Gory.
[6]
The fourth and fifth
respondents in the court below were a married couple to whom the executor had
purported to sell the late Mr Brooks’
house in which he and the deceased
were living at the time of his death. They did not oppose Mr Gory’s
application and, as
they also do not oppose the application for confirmation
before this Court, they are not cited as respondents in these
proceedings.
Proceedings before this
Court
[7]
Mr Gory applies to this
Court in terms of section 172(2)(d) of the Constitution for confirmation of
paragraphs 1, 2 and 3 of the High
Court order and a costs order against the
Minister. Neither Mr Kolver nor the Minister opposes the application for
confirmation.
Mr Kolver has, however, brought an application for leave to
appeal against paragraphs 9, 10 and 11 of the High Court order. The
application
was heard simultaneously with the application for confirmation. The Minister
appeared before this Court only to oppose
Mr Gory’s prayer for a costs
order against her.
[8]
There is also an application
to intervene in the matter by Ms Erilda Starke and her three sisters. Their
late brother, Mr William
Starke, was at the time of his death allegedly a
partner in a permanent same-sex life partnership with Mr Bobby Lee Bell. Mr
Starke
died intestate on 21 November 2005 and his sisters nominated an attorney,
Mr Myer Mervyn Smith, to be appointed by the Master of
the Cape High Court as
the executor of their brother’s estate. There is a dispute between the
four sisters and Mr Smith, on
the one hand, and Mr Bell, on the other,
concerning Mr Bell’s claim against Mr Starke’s intestate estate.
The applicants
for intervention (the Starke sisters) deny that the relationship
between their late brother and Mr Bell was a permanent
life partnership
and also deny that their brother and Mr Bell were “totally dependent on
each other for reciprocal support in
every sense of the word”, as alleged
by Mr Bell. This factual dispute will obviously have to be addressed in
proceedings before
the relevant High Court, should Mr Gory’s application
for confirmation be successful.
[9]
The Starke sisters argue
that, should the High Court order be confirmed, they will suffer prejudice by
being deprived of their vested
rights as their late brother’s intestate
heirs.
[11]
While they make no
specific submissions in respect of paragraph 1 of the High Court order, they
contend that paragraphs 2 and 3
of the order should not be confirmed, that
reading-in is not the appropriate remedy and that any order made by this Court
should
apply only to the intestate estates of persons who die after the order is
handed down. The Starke sisters do not seek costs from
any party in this
matter.
[10]
While Mr Bell does not
oppose the Starke sisters’ application for intervention, he opposes the
relief sought by them. He also
applies to intervene should their application be
granted. Like the Starke sisters, Mr Bell does not seek costs. Neither Mr
Kolver
nor the Minister opposes the application for intervention by the Starke
sisters, or the conditional application to intervene by Mr
Bell. Mr Gory, on
the other hand, takes the view that there is no merit in the Starke
sisters’ application and that it should
be dismissed with
costs.
Applications for leave to
intervene
[11]
The Starke sisters cite
Rule 8 of this Court’s Rules which deals with the intervention of parties
in proceedings, providing
that –
“(1) Any person entitled to join as a party or liable to be joined as a
party in the proceedings may, on notice to all parties,
at any stage of the
proceedings apply for leave to intervene as a
party.”
They acknowledge that Rule 12 of the Uniform
Rules of the High Court is not expressly listed in Constitutional Court Rule 29
as one
of the Uniform Rules which apply to the proceedings in this Court. They
submit, however, that the considerations applicable to Uniform
Rule 12 as
developed by the courts should be followed by this Court in construing
Constitutional Court Rule 8 and the effect
thereof.
[12]
This being so, the
decisive criterion for a court in exercising its discretion whether or not to
grant leave to intervene is whether
the applicant for intervention has a direct
and substantial interest in the subject matter of the
litigation.
[13]
[12]
As was pointed out on
behalf of Mr Bell, the considerations applicable to Uniform Rule 12 are not
necessarily wholly appropriate to
a case involving an order of constitutional
invalidity of a statute in terms of section 172 of the Constitution. The common
law
principles relating to intervention of parties applied by the courts in
respect of Uniform Rule 12 deal primarily with disputes
in personam
,
whereas an order under section 172 is an order
in
rem
.
[14]
In disputes concerning the constitutional validity of a statute, it would
– so it was submitted – be impractical if “the
test of a
direct and substantial interest in the
subject-matter of the action is
again regarded as being the
decisive
criterion” (emphasis
added).
[15]
This Court would not be
able to function properly if every party with a direct and substantial interest
in a dispute over the constitutional
validity of a statute was entitled, as of
right as it were, to intervene in a hearing held to determine constitutional
validity.
[13]
This submission is a
convincing one. In every case this Court must ultimately decide whether or not
to allow intervention by considering
whether it is in the interests of justice
to grant leave to intervene. Thus, in cases involving the constitutionality of
a statute,
while a direct and substantial interest in the validity or invalidity
of the statute in question will ordinarily be a
necessary
requirement to
be met by an applicant for intervention, it will not always be
sufficient
for the granting of leave to intervene. Even if the applicant is able to show a
direct and substantial interest, the Court has an
overriding power to grant or
to refuse intervention in the interests of justice. Other considerations that
could weigh with the
Court in this regard include the stage of the proceedings
at which the application for leave to intervene is brought, the attitude
to such
application of the parties to the main proceedings, and the question whether the
submissions which the applicant for intervention
seeks to advance raise
substantially new contentions that may assist the
Court.
[16]
[14]
The Starke sisters submit
that the relief sought by Mr Gory in his application for confirmation has a
direct and substantial effect
on their rights as well as on the rights of Mr
Bell. If the confirmation application were to succeed and it were later to be
determined
that Mr Bell and their late brother were, at the time of the
latter’s death, partners in a permanent same-sex life partnership
in which
they had undertaken reciprocal duties of support, then the Starke sisters would
retrospectively lose the rights to their
brother’s estate which vested in
them as intestate heirs in November 2005 when their brother
died.
[15]
Mr Gory takes issue with
the contention by the Starke sisters that their right to inherit the estate of
their late brother vested
in them upon his death. According to Mr Gory, as any
legislation which is inconsistent with the Constitution became invalid from
the
moment the relevant provisions of the Constitution or of the legislation came
into effect (whichever is the later date) and not
from the moment of the
court’s
order,
[17]
the challenged provisions of section 1(1) of the Act became invalid, at the
latest, on 4 February 1997 when the Constitution came
into
operation.
[18]
Thus, so Mr Gory submitted, if a trial court were to resolve the factual dispute
existing between the Starke sisters and Mr Bell
in favour of the latter, no
intestate succession rights would have vested in the Starke sisters on their
late brother’s death.
It is accordingly not correct that the Starke
sisters will be prejudiced if this Court were to confirm paragraphs 2 and 3 of
the
order of the High Court.
[16]
In my view, the Starke
sisters are correct in their contention that they do have the requisite direct
and substantial interest in
the subject matter of Mr Gory’s confirmation
application. Until such time as this Court confirms the order of constitutional
invalidity of section 1(1) of the Act made by the High Court, such order has no
force. When Mr Starke died intestate in November
2005, there was at that time
no confirmed order of constitutional invalidity in respect of section 1(1) of
the Act, and the rights
of intestate succession to Mr Starke’s estate thus
vested in his four sisters. They will cease to have these rights if the
High
Court’s order of constitutional invalidity is confirmed by this Court and
if the factual dispute between them and Mr Bell
regarding the nature of his
relationship with their late brother is resolved in Mr Bell’s favour. The
Starke sisters do therefore
have a direct and substantial interest in the
confirmation application.
[17]
The Starke sisters’
application for intervention was brought as soon as reasonably possible after
they became aware of the fact
that Mr Bell, in correspondence with the executor
of their late brother’s estate, claimed to be the latter’s sole
intestate
heir. Neither Mr Kolver nor the Minister opposes their application,
although Mr Gory takes the view, for the reasons outlined above,
that the
application has no merit and should be dismissed with costs. The submissions
advanced by the Starke sisters on the issues
of reading-in and retrospectivity
are indeed substantially new contentions not canvassed in any detail (if at all)
by the other parties
in this matter. As such, these submissions are of
considerable assistance to this Court. It would to my mind be unfair not to
allow
the Starke sisters to participate in the proceedings and the interests of
justice require that their application for leave to intervene
be
granted.
[18]
Once the Starke sisters are
allowed to intervene, Mr Bell should also be allowed to do so. Like the Starke
sisters, he has a direct
and substantial interest in the subject matter of the
confirmation application, his application was also timeously brought and his
submissions countering those made by the Starke sisters are certainly cogent and
helpful to this Court. There can be no question
that the interests of justice
require his application for intervention to be
granted.
The unconstitutionality of section
1(1) of the Act
[19]
Section 1(1) of the Act
confers rights of intestate succession on heterosexual spouses but not on
permanent same-sex life partners.
As these partners are not legally entitled to
marry, this amounts to discrimination on the listed ground of sexual orientation
in
terms of section 9(3) of the Constitution, which discrimination is in terms
of section 9(5) presumed to be unfair unless the contrary
is
established.
[19]
Given the recent
jurisprudence of South African courts in relation to permanent same-sex life
partnerships,
[20]
the failure of section 1(1) to include within its ambit surviving partners to
permanent same-sex life partnerships in which the partners
have undertaken
reciprocal duties of support is inconsistent with Mr Gory’s rights to
equality and dignity in terms of sections
9 and 10 of the
Constitution.
[21]
There was no
attempt by the respondents either in the High Court or in this Court to justify
the limitation of Mr Gory’s rights
in term of section 36 and, in my view,
there is no such justification. It follows that the High Court correctly found
section 1(1)
of the Act to be unconstitutional and invalid to the extent alleged
by Mr Gory and that paragraph 1 of the order of the High Court
must be
confirmed.
The appropriate remedy
[20]
In terms of section
172(1)(b) of the Constitution, a court which has declared a statutory provision
to be unconstitutional and invalid
may make any order that is just and
equitable, including “an order limiting the retrospective effect of the
declaration of
invalidity” and “an order suspending the declaration
of invalidity for any period and on any conditions, to allow the
competent
authority to correct the
defect”.
Appropriate relief –
“reading-in”
[21]
The Starke sisters argue
that reading words into section 1(1) as ordered by the High Court is not the
appropriate remedy in this case.
With reference to the principles which should
guide a court in deciding when an order of reading-in is appropriate, as
articulated
by this Court in
National Coalition for Gay and Lesbian Equality
v Minister of Home Affairs
,
[22]
they emphasise the need to ensure “that the result achieved would
interfere with the laws adopted by the Legislature as little
as
possible”
[23]
and that
–
“In deciding to read words into a statute, a Court should also bear in
mind that it will not be appropriate to read words in,
unless in so doing a
Court can define with sufficient precision how the statute ought to be extended
in order to comply with the
Constitution. Moreover, when reading in (as when
severing) a Court should endeavour to be as faithful as possible to the
legislative
scheme within the constraints of the
Constitution.”
[24]
[22]
The Starke sisters point
out that this Court in the
Fourie
judgment declared the common law
definition of marriage to be inconsistent with the Constitution and invalid to
the extent that it
does not permit same-sex couples to enjoy the status and the
benefits coupled with responsibilities it accords to heterosexual couples.
It
also declared the omission from section 30(1) of the Marriage Act 25 of 1961
after the words “or husband” of the
words “or spouse” to
be unconstitutional and the Marriage Act invalid to the extent of this
inconsistency. However,
the majority of the Court suspended these declarations
of invalidity for a period of 12 months from the date of the judgment (1
December
2005) to allow Parliament to correct the defects. Reading-in will
occur and section 30(1) of the Marriage Act will be read as including
the words
“or spouse” after the words “or husband” as they appear
in the marriage formula only if Parliament
should fail to correct the identified
defects within this twelve month period (ie by 1 December 2006). If this
happens, they submit,
the unconstitutionality that has been identified in the
Act would cease to exist because the word “spouse” as contained
in
section 1(1) of the Act would then include persons of the same sex who elect to
marry.
[23]
As regards the previous
cases in which the remedy of reading-in has been utilised by this Court in the
context of discrimination on
the ground of sexual orientation, the Starke
sisters point out that an important point of distinction between those cases and
the
present is that the previous cases concerned situations in which the
same-sex couple jointly sought relief in respect of rights that
they would have
had against a governmental agency but for the unconstitutional
legislation.
[25]
By contrast, in the present matter, it is not a same-sex couple seeking relief,
but rather a person who claims to be the surviving
partner of an alleged
permanent same-sex life partnership – different considerations apply to
this kind of situation.
[24]
Mr Bell contends that the
Starke sisters’ invocation of the
Fourie
decision in support of
their argument against reading-in is misplaced. He points out that there are
two fundamental differences between
the
Fourie
case and the present case
when it comes to the exercise by this Court of its remedial discretion. First,
the right to marry is a
right which can be exercised only prospectively, while
the right to inherit intestate is a right which can be asserted only
retrospectively.
By suspending the order of invalidity in
Fourie
’s
case, this Court did not deprive the successful litigants of their rights
– it merely required them to wait for a period
of one year for their
relief. However, if the order of constitutional validity in the present case is
suspended or not given retrospective
effect, this will permanently deprive Mr
Gory, Mr Bell and other similarly situated persons of the relief to which they
are entitled
under the Constitution. Second, the remedial question in the
present case does not have the complexity of the remedial question
in the
Fourie
case, nor does it present the kind of concerns which militated in
favour of a remedy in
Fourie
which required Parliamentary
consideration.
[25]
Mr Gory counters the Starke
sisters’ argument on the question of reading-in by pointing out that,
despite repeated dicta of
this Court to the effect that the legislative
framework must be changed so as to accommodate same-sex life partnerships in a
constitutionally
acceptable
manner,
[26]
Parliament has continued
to deal with unfair discrimination against gays and lesbians on a piecemeal
basis, often in response to
court decisions. It thus remains to be seen whether
Parliament will in fact enact any legislation by the
Fourie
deadline of 1
December 2006. Moreover, it is possible that any legislation which Parliament
does
enact in this regard may be susceptible to a court challenge. Any
such legislation will not, as enacted, necessarily deal with the
law of
intestate succession. In any event, any change in the law pursuant to
Fourie
will not protect or vindicate the rights of Mr Gory and others in a similar
situation, namely those gay and lesbian people whose permanent
same-sex life
partners have already died or who die before the law is changed or before they
have the opportunity to make use of
any new
dispensation.
[26]
In my view, paragraph 2 of
the High Court order should be confirmed for the reasons that
follow.
[27]
As was stated by Sachs J in
Fourie
,
[27]
the judgment in
that case –
“. . . [left] open for appropriate future legislative consideration or
judicial determination the effect, if any, of this judgment
on decisions this
Court has made in the past concerning same-sex life partners who did not have
the option to marry. Similarly, this
judgment does not pre-empt in any way
appropriate legislative intervention to regulate the relationships (and in
particular, to safeguard
the interests of vulnerable parties) of those living in
conjugal or non-conjugal family units, whether heterosexual or gay or lesbian,
not at present receiving legal protection. As the
SALRC
[28]
has indicated, there are a
great range of issues that call for legislative attention.” (footnote
omitted).
[28]
Any change in the law
pursuant to
Fourie
will not necessarily amend those statutes into which
words have already been read by this Court so as to give effect to the
constitutional
rights of gay and lesbian people to equality and dignity. In the
absence of legislation amending the relevant statutes, the effect
on these
statutes of decisions of this Court in cases like
National Coalition for Gay
and Lesbian Equality v Minister of Home
Affairs
,
[29]
Satchwell
,
[30]
Du
Toit
[31]
and
J v
Director-General, Department of Home
Affairs
[32]
will not change.
The same applies to the numerous other statutory provisions that expressly
afford recognition to permanent same-sex
life
partnerships.
[33]
In the interim,
there would seem to be no valid reason for treating section 1(1) of the Act
differently from legislation previously
dealt with by this Court by, inter alia,
utilising the remedy of reading-in where it has found that such legislation
unfairly discriminates
against permanent same-sex life partners by not including
them in the ambit of its application.
[29]
It is true that, should
this Court confirm paragraph 2 of the High Court order, the position after 1
December 2006 will be that section
1(1) of the Act will apply to both
heterosexual spouses and same-sex spouses who “marry” after that
date, if Parliament
either fails to respond before the
Fourie
deadline or
if it does enact legislation permitting same-sex couples to “enjoy the
status and the benefits coupled with responsibilities
it accords to heterosexual
couples.” Unless specifically amended, section 1(1) will then also apply
to permanent same-sex
life partners who have undertaken reciprocal duties of
support but who do not “marry” under any new dispensation.
Depending
on the nature and content of the new statutory dispensation (if any),
there is the possibility that unmarried heterosexual couples
will continue to be
excluded from the ambit of section 1(1) of the
Act.
[34]
As was argued by the
Starke sisters, the rationale in previous court decisions for using reading-in
to extend the ambit of statutory
provisions applicable to spouses/married
couples so as to include permanent same-sex life partners was that same-sex
couples are
unable legally to marry and hence to bring themselves within the
ambit of the relevant statutory provision. Once this impediment
is removed,
then there would appear to be no good reason for distinguishing between
unmarried heterosexual couples and unmarried
same-sex couples in respect of
intestate succession.
[30]
In this regard, it is
useful to reiterate the following dictum of this Court in
National Coalition
for Gay and Lesbian Equality v Minister of Home
Affairs
:
[35]
“It should also be borne in mind that whether the remedy a Court grants is
one striking down, wholly or in part; or reading
into or extending the text, its
choice is not final. Legislatures are able, within constitutional limits, to
amend the remedy, whether
by re-enacting equal benefits, further extending
benefits, reducing them, amending them, ‘fine-tuning’ them or
abolishing
them. Thus they can exercise final control over the nature and
extent of the benefits.” (footnotes omitted).
[31]
As contended by Mr Bell,
questions like what status to accord pre-existing same-sex life partnerships
after the expiry of the
Fourie
deadline, whether to provide a
“transitional” period in which partners to pre-existing same-sex
life partnerships will
be expected to marry or to register their pre-existing
partnerships to continue to qualify for the benefits conferred by law on
“spouses”,
and if so, the length of such a transitional period are
pre-eminently legislative decisions. This kind of decision ought to be taken
by
Parliament when it enacts the legislation contemplated in the
Fourie
case, and ought not to be anticipated by this Court. It is clearly the task
of the legislature to enact legislation that deals with
the whole gamut of
different types of marital and non-marital domestic partnerships in a
sufficiently detailed and comprehensive
manner. The primary responsibility of
this Court in the present matter is to cure the existing and historical
unconstitutionality
of section 1(1) of the Act, the fulfilment of which
responsibility clearly requires the reading-in ordered by the High
Court.
Appropriate relief –
retrospectivity
[32]
The Starke sisters contend
that, if this Court declares section 1(1) of the Act to be unconstitutional and
also finds that the remedy
of reading-in is appropriate, then the Court should
limit the retrospectivity of the order of constitutional invalidity in terms
of
section 172(1)(b)(i) of the Constitution so that it has only prospective effect
(ie that it applies only to the estates of persons
who die after the date of the
order).
[33]
Citing
S v
Ntsele
[36]
in support of the contention that questions of retrospectivity often depend
on factors in respect of which evidence is necessary,
the Starke sisters argue
that the only evidence that was adduced concerning the issue of retrospectivity
is that contained in the
answering affidavit filed in the court below on behalf
of the Minister. The deponent to this affidavit, Ms Theresia Bezuidenhout,
canvassed various practical difficulties in respect of the administration of
affected deceased estates that would result from a retrospective
order,
including delays in the finalisation of such estates, and complications and
additional costs arising from the “effective
nullification” of the
appointment of the executor and the appointment of a new executor. Ms
Bezuidenhout concluded that any
order made by the Court “should operate
prospectively; alternatively should not apply to estates in which an executor
has already
been appointed”. In view of the fact that an order with
retrospective effect would cause uncertainty and, in addition, would
ignore the
wishes of those deceased persons who had consciously and deliberately decided
not
to make a will but to let their estates devolve in accordance with
the scheme of intestate succession set out in the Act, any declaration
of
constitutional invalidity and reading-in order should be limited so that they
apply only prospectively.
[34]
In response, Mr Gory
submits that limiting the retrospective effect of the declaration of invalidity
and reading-in to those intestate
estates of persons who die after the date of
this Court’s order would deny relief to him and others who are similarly
situated.
This would not be just and
equitable.
[35]
As regards the argument
that a reading-in would interfere with the autonomy interest of intestate
same-sex life partners who elect
not to make a will, Mr Bell points out that the
purpose of the Act is to provide normative standards and not to protect the
autonomy
of
testators.
[37]
Testators who wanted to protect their autonomy would have executed wills.
Moreover, according to Mr Gory, this argument itself amounts
to discrimination
on the grounds of sexual orientation in that, irrespective of any deliberate
intention of a heterosexual spouse
in not making a will (whatever such intention
may be), his or her surviving spouse is nonetheless an intestate heir of the
deceased
estate.
[36]
It is submitted further
that there is really no evidence to support the contention that the confirmation
of paragraph 3 of the order
of the High Court would cause any significant
disruption to or dislocation in the administration of deceased estates that had
not
been finally wound up by the date of the confirmation order. The
retrospective operation of an order of reading-in will not, of
itself, affect
the validity of the appointment of an executor. In circumstances where a
surviving same-sex life partner can persuade
a court to remove an executor under
section 54
of the
Administration of Estates Act 66 of
1965
,
[38]
it would be contrary to
the interests of justice to allow that executor to continue in his or her
office. To deprive the order of
any retrospective effect would also be
inconsistent with the orders made in the cases previously decided by this Court
in matters
affecting substantive rights of
inheritance.
[39]
In any event, it
would be neither just nor equitable to deny the applicant and those in a similar
situation to him effective relief
because of any inconvenience and delay that
might result from the recognition and vindication of their constitutional
rights. Any
residual concerns about potential dislocation that may be caused by
the retrospective effect of the order can be accommodated in
the manner in which
this Court has previously addressed these concerns in similar cases, namely by
making provision for variation
of the order on application by any interested
party who can show that serious administrative or practical difficulties
necessitate
any
variation.
[40]
[37]
In response to the argument
that a retrospective declaration of invalidity would deprive third parties of
vested rights, Mr Gory repeats
that, in the absence of a court order limiting
the retrospective effect of a declaration of invalidity, the law which is the
subject
of the declaration is regarded as having become invalid from the moment
the relevant provisions of the Constitution came into
force.
[41]
This means that unless
the Starke sisters can satisfy the Court that the interests of justice and
equity require an order of prospective
invalidity to be made, the challenged
provisions of section 1(1) of the Act would have become invalid long before the
date of death
of the deceased in both the matters before this Court. If this
Court confirms paragraphs 1, 2 and 3 of the High Court order, then
Mr Gory will
be regarded as having been Mr Brooks’ intestate heir from the date of the
latter’s death and the rights
in respect of intestate succession which
vested in Mr Brooks’ parents at the date of his death would
retrospectively cease
to exist. The same would apply to the rights to inherit
their late brother’s deceased estate which vested in the Starke sisters
on
the date of his death if a trial court were, at a later date, to resolve the
factual dispute between them and Mr Bell in favour
of the
latter.
[38]
It is important to note
that, as pointed out on behalf of the Starke sisters, this is the first case
dealing with the recognition
of the entitlements of permanent same-sex life
partners in which the effect of such recognition will be to deprive third
parties
of vested claims.
[42]
However, a not dissimilar situation confronted this Court in the
Bhe
and
Shibi
cases,
[43]
in which
(inter alia) the rule of male primogeniture as it applies in customary law to
the inheritance of property was declared to
be inconsistent with the
Constitution and invalid to the extent that it excluded or hindered women and
extra-marital children from
inheriting property. This Court also held that
section 1 of the Act is, subject to certain modifications to accommodate
polygynous
unions, applicable to intestate deceased estates that would formerly
have been governed by section 23 of the Black Administration
Act 38 of
1927.
[44]
In terms of these
statutory provisions and “Black law and custom” as it applied at the
time of the deceased’s
death in both
Bhe
and
Shibi
,
a
“third party”
[45]
acquired vested rights to inherit upon the death of the relevant deceased. The
effect of the declarations of constitutional invalidity
made by the Court was
that such rights ceased to exist and the applicants were declared to be the
deceased’s intestate heirs,
their rights in this regard obviously dating
from the date of death of the relevant
deceased.
[39]
As already discussed, a
pre-existing law or provision of a law which is unconstitutional became invalid
at the moment the Constitution
took effect. This is the effect of the so-called
“supremacy clause” of the Constitution (section 2), in terms of
which
the Constitution is the supreme law of the Republic and all law or conduct
inconsistent with it is invalid.
[46]
Item 2(1) of Schedule 6 to the Constitution provides that all law that was in
force when the Constitution took effect, continues
in force until amended or
repealed, but only to the extent that it is consistent with the new
Constitution.
[47]
When making a
declaration of invalidity, a court simply declares invalid what has already been
invalidated by the Constitution.
This doctrine, known as “objective
constitutional invalidity”, means that an unconstitutional law in force at
the time
of the commencement of the interim Constitution might be invalidated by
that Constitution with effect from 27 April 1994, even if
the applicant’s
cause of action arose after the coming into force of the 1996 Constitution on 4
February
1997.
[48]
Thus, in terms of section 172(1)(a) of the Constitution, a court deciding a
constitutional matter
must
declare any law or conduct that is
inconsistent with the Constitution to be invalid to the extent of its
inconsistency. However,
as indicated above, the operation of the doctrine of
objective constitutional invalidity is subject to the possibility that the court
making the declaration of invalidity may, in the interests of justice and
equity, limit the retrospective effect of such declaration
in terms of section
172(1)(b)(i) of the
Constitution.
[49]
[40]
This Court has consistently
emphasised that, where a litigant does establish that an infringement of an
entrenched right has occurred,
he or she should as far as possible be given
effective relief so that the right in question is properly
vindicated.
[50]
In this case, on
the factual findings of the High Court, which are not challenged before us, Mr
Gory and Mr Brooks were permanent
same-sex life partners who had undertaken
reciprocal duties of support. Mr Gory has established that the failure of
section 1(1)
of the Act to include him and others similarly situated to him
within its ambit
does
violate his rights to equality and dignity.
Bearing in mind the significant pre-existing disadvantage and vulnerability of
same-sex
life partners resulting from “the long history in our country and
abroad of marginalisation and persecution of gays and
lesbians”,
[51]
it would not in
my view be just and equitable to deny Mr Gory any effective constitutional
relief by making the declaration of invalidity
of section 1(1) fully
prospective, despite the effect of such declaration of invalidity on the
interests of third parties (such as
Mr Brooks’
parents).
[52]
[41]
In order to protect the
public interest in the finality of completed acts, the High Court framed
paragraph 3 of its order to exclude
the retrospective effect of the order of
constitutional invalidity contained in paragraphs 1 and 2 of its order on
“any acts
performed in respect of the administration of an intestate
estate that [had] been finally wound up by date of [the] order.”
I agree
with the argument advanced by Mr Bell that, for the reasons set out by this
Court in the
Bhe
case,
[53]
a
limiting order framed in these terms goes too far. In the words of Langa DCJ
(as he then was) in the majority judgment in
Bhe
,
[54]
such an order
–
“. . . would make it impossible to re-open a transaction even where the
heir who received transfer knew at the time that the
provisions which purport to
benefit him or her were to be challenged in a court . . .
To limit the order of retrospectivity to cases in which transfer of ownership
[had] not yet been completed would enable an heir to
avoid the consequences of
any declaration of invalidity by going ahead with transfer as speedily as
possible. What will accordingly
be just and equitable is to limit the
retrospectivity of the order so that the declaration of invalidity does not
apply to any completed
transfer to an heir who is
bona fide
in the sense
of not being aware that the constitutional validity of the provision in question
was being challenged. It is fair and
just that all transfers of ownership
obtained by an heir who was on notice ought not to be
exempted.”
[42]
It is necessary to balance
the potentially disruptive effects of an order of retrospective invalidity of
section 1(1) of the Act and
the effect of such an order on the vested rights of
third parties, on the one hand, with the need to give effective relief to Mr
Gory and similarly situated persons, on the other. The most appropriate way to
achieve this balance is to fashion a limiting order
along the lines of the
relevant part of this Court’s order in
Bhe
[55]
and also to
make provision
[56]
for a variation
of its order on application by an interested party who can show that serious
administrative and practical difficulties
require such
variation.
[43]
To summarise my conclusions
thus far: first, I am of the view that the High Court correctly found section
1(1) of the Act to be unconstitutional
and invalid to the extent that it confers
rights of intestate succession on heterosexual spouses but not on permanent
same-sex life
partners. Second, the most fitting way to cure this
unconstitutionality is by reading in after the word “spouse”,
wherever
it appears in section 1(1), the words “or partner in a permanent
same-sex life partnership in which the partners have undertaken
reciprocal
duties of support”, as was ordered by the High Court. Third, this order
of constitutional invalidity should in
the main operate retrospectively, but
this Court should, in the exercise of its powers in terms of section
172(1)(b)(i) of the Constitution,
fashion an order limiting the retrospective
effect of the order of constitutionality so as to reduce the risk of disruption
in the
administration of deceased estates and to protect the position of bona
fide third parties as best possible.
The
first respondent’s application for leave to appeal
[44]
Appeals can only be made to
this Court on constitutional matters or issues connected with decisions on
constitutional matters.
[57]
At the
hearing, both Mr Gory and Mr Kolver accepted, without any argument on the point,
that the issues raised by the latter in
his application for leave to appeal
against paragraphs 9.1, 9.2, 10 and 11 of the High Court order are not
constitutional matters,
but are issues connected with the decisions to be made
by this Court on the constitutional matters raised in the application for
confirmation. Is this premise correct?
[45]
In
Alexkor Ltd and
Another v The Richtersveld Community and
Others
,
[58]
an important case on
the interpretation of section 167(3)(b) of the Constitution, this Court
held
[59]
that the phrase
“issues connected with decisions on constitutional matters” was
intended –
“. . . to extend the jurisdiction of this Court to matters that stand in a
logical relationship to those matters that are primarily,
or in the first
instance, subject to the Court’s jurisdiction. The underlying purpose is
to avoid fettering, arbitrarily and
artificially, the exercise of this
Court’s functioning when obliged to determine a constitutional matter. If
any anterior
matter, logically or otherwise, is capable of throwing light on or
affecting the decision by this Court on the primary constitutional
matter, then
it would be artificial and arbitrary to exclude such consideration from the
Court’s evaluation of the primary
constitutional matter. To state it more
formally, when any
factum probandum
of a disputed issue is a
constitutional matter, then any
factum probans
, bearing logically on the
existence or otherwise of such
factum probandum
, is itself an issue
‘connected with a decision on a constitutional matter’.”
(footnote omitted)
[46]
Alexkor
dealt
with the question whether various questions of fact bearing on or related to the
establishment of the existence of the constitutional
matters before the Court
(such constitutional matters including issues relating to the interpretation and
application of legislation
enacted to give effect to constitutional rights)
constituted “issues connected with decisions on constitutional
matters”.
This Court answered the question in the affirmative. The
question in the application for leave to appeal currently before us is,
however,
quite a different one. Paragraphs 9.1, 9.2, 10 and 11 of the order made by the
High Court in this case are ancillary to
and dependent on the order of
constitutional invalidity contained in paragraphs 1, 2 and 3 of the High Court
order. The orders contained
in these paragraphs were expressly suspended by the
High Court pending confirmation by this Court of the order of constitutional
invalidity contained in paragraphs 1, 2 and 3. If the High Court order of
constitutional invalidity were to be varied or confirmation
thereof were to be
refused, then these ancillary orders would of necessity have to be
revisited.
[47]
Whatever the precise
meaning of the word “connected” in the phrase “issues
connected with decisions on constitutional
matters”, it must include a
relationship of dependence between a primary order on a constitutional matter
and an ancillary
order. What constitutes “dependence” must be
understood in a broad sense. There are important policy reasons for such
an
approach: if a party may not approach this Court for leave to appeal on these
ancillary matters, this would give rise to a bifurcated
appeal and confirmation
procedure in which the appeal on the ancillary matters could not be resolved
before this Court together with
the confirmation application, but would have to
be heard and resolved in separate proceedings before another court. This would
obviously
be a most undesirable state of affairs, undermining the achievement of
finality for the parties and resulting in an unnecessary waste
of judicial
resources.
[48]
It
follows that the issues raised by Mr Kolver in his application for leave to
appeal against the ancillary orders made by the High
Court contained in
paragraphs 9.1, 9.2, 10 and 11 of the High Court order are, at the very least,
“issues connected with decisions
on constitutional matters”, in
terms of section 167(3)(b) of the Constitution and fall within the jurisdiction
of this Court.
The same would of course apply to the orders contained in
paragraphs 4, 5, 6, 7 and 8 of the High Court
order.
[49]
It may well be that the
matters to which the orders set out in paragraphs 4 to 11 of the High Court
order relate fall within the jurisdiction
of this Court as “constitutional
matters” in terms of section 167(3)(b). These orders were made by the
High Court, in
the exercise of its powers in terms of section 172(1) of the
Constitution, as a direct consequence of the declaration of invalidity
made in
respect of section 1(1) of the Act and in the interests of justice and equity.
In making these orders, the High Court was
in every sense controlling the
consequences of the declaration of invalidity. As was stated by this Court in
Dawood and Another; Shalabi and Another; Thomas and Another v Minister of
Home Affairs and Others
:
“[I]t is not only the direct order of unconstitutionality itself that must
be confirmed but all the orders made by the High
Court that flowed from that
finding of unconstitutionality . . . All of these orders granted relief
consequent upon the finding of
unconstitutionality and are accordingly before
this Court as part of the confirmation
proceedings.”
[60]
[50]
If one accepts this
reasoning, then Mr Kolver might not require our leave to appeal against any of
the ancillary orders contained
in paragraphs 4 to 11 of the High Court order,
but might have a right of appeal pursuant to section 172(2)(d) of the
Constitution.
In terms of this section –
“[a]ny person or organ of state with a sufficient interest may appeal, or
apply, directly to the Constitutional Court to confirm
or vary an order of
constitutional invalidity by a court in terms of this
subsection.”
It could be argued that the phrase
“order of constitutional invalidity” should be read broadly to
include any ancillary
order that is dependent upon the declaration of
constitutional invalidity and that was made pursuant to such declaration in the
interests
of justice and equity. However, in view of the conclusion reached in
paragraph
[48]
above, it is not
necessary to decide this question for the purposes of the present proceedings
and, in the absence of any argument
on this point, I would prefer not to do so.
I am satisfied that, once this Court decides to confirm the declaration of
invalidity
in terms of section 172(2)(a) of the Constitution, then it should
logically also re-examine all the ancillary orders made by the
High Court,
including the orders forming the subject of Mr Kolver’s application for
leave to appeal, to determine whether these
orders are just and equitable.
[51]
Paragraphs 4 and 5 of the
order made by the High Court can be dealt with briefly. As already stated, the
factual finding of the High
Court to the effect that Mr Gory and the late Mr
Brooks were, at the time of the latter’s death, partners in a permanent
same-sex
life partnership in which they had undertaken reciprocal duties of
support was not challenged before this Court and is in my view
clearly correct.
Paragraph 4 of the High Court order simply encapsulates this factual finding and
is certainly just and equitable.
So too, once this Court confirms the
declaration of invalidity of section 1(1) of the Act and the reading-in order
made by the High
Court, then paragraph 5 of the High Court order – which
declares Mr Gory to be the sole heir of the late Mr Brooks –
clearly
follows.
[52]
As regards paragraph 6 of
the High Court order, it was in my view equitable for the agreement of purchase
and sale in terms of which
Mr Kolver purportedly sold the deceased’s house
to be set aside. Mr Gory and the deceased were living in the house at the
time
of the latter’s death. The agreement was entered into at a time when the
constitutionality of section 1(1) of the Act
had not yet been determined. Had
it been clear that Mr Gory was the sole intestate heir of the deceased, the
property would in all
probability not have been sold at that stage. The
agreement of sale has not been approved by the Master and the purchasers do not
oppose the setting aside of the agreement (concluded more than a year ago).
Indeed, as indicated above, the purchasers are not even
cited as respondents in
the present proceedings. On the other hand, Mr Gory is currently living on the
property, paying the monthly
bond instalments and the municipal account for
rates, taxes, water and electricity. He is the sole heir of the deceased estate
and
will inherit whatever remains of the estate after the debts have been paid.
In my view, paragraph 6 of the High Court order is in
all the circumstances just
and equitable and should be confirmed by this
Court.
[53]
However, once the setting
aside of the agreement is confirmed, paragraph 7 of the High Court order becomes
unnecessary: it is up to
the executor of the deceased estate, whoever he or she
may be, to decide how the property is to be dealt with in the execution of
his
or her duty properly to administer the estate. I do not think it desirable that
the executor be fettered in the fulfilment of
this duty by a court order dealing
with conditional entitlement to occupation of the property. Paragraph 7 of the
High Court order
should thus be set aside.
[54]
Paragraph 8 of the High
Court order should, in my view, be confirmed by this Court. The circumstances
in which the movable assets
belonging to Mr Gory and/or the deceased referred to
in paragraph 8 of the High Court order were removed from the former’s
possession after the deceased’s death by the first, second and third
respondents and members of the deceased’s family
are sketched in the
reported High Court judgment.
[61]
Understandably, the emotions of the deceased’s parents and other members
of his family seem to have been running high during
this period and the manner
in which many of these assets were removed from Mr Gory’s possession was
regrettably somewhat high-handed
and insensitive to the grief and confusion
which he was also suffering. Most, if not all, of these assets are apparently
still in
the possession of the second and third respondents (the
deceased’s parents). Once Mr Gory is declared to be the sole intestate
heir of the deceased, there is no reason whatsoever for any of these assets to
remain in the possession of the respondents.
[55]
I turn now to paragraphs
9.1, 9.2, 10 and 11 of the High Court order. These orders removed Mr Kolver
from the position of executor
(paragraph 9.1), suspended the administration of
the deceased estate (paragraph 9.2), deprived him of entitlement to remuneration
for services rendered in connection with the administration of the deceased
estate and to reimbursement for expenses incurred in
this regard (paragraph 10),
and ordered costs
de bonis propriis
against him (paragraph 11). Mr
Kolver contended that the High Court failed to exercise its discretion properly
and appropriately
in coming to the conclusion that his conduct in his capacity
as executor of the late Mr Brooks’ deceased estate was so unreasonable
that the court was justified in making these
orders.
[56]
In terms of
section
54(1)(a)(v)
of the
Administration of Estates Act 66 of 1965
, an executor may at
any time be removed from his office by the Court if for any reason other than
those set out in the rest of
section
54(1)(a)
,
[62]
“the Court is
satisfied that it is undesirable that he should act as executor of the estate
concerned”. In
Die Meester v Meyer en
Andere
,
[63]
Margo J (with
whom Davidson J and Franklin J concurred), dealing with the approach to be
followed by a court in exercising its discretion
under this section, held as
follows:
[64]
“Hoe dit ook al sy onder die gemenereg en ingevolge die gewysdes onder die
ou Boedelwet, 24 van 1913, is die Hof nou gemagtig
kragtens art. 54(1)(a)(v) van
die huidige Boedelwet om ’n eksekuteur te verwyder indien dit onwenslik is
dat hy as eksekuteur
van die betrokke boedel optree. Die Hof het hier ’n
diskresie en myns insiens bly die oorheersende oorweging die belange van
die
boedel en van die
begunstigdes.”
[65]
[57]
It
seems clear that there has been a complete breakdown of trust between Mr Gory
and Mr Kolver and that the former has lost all faith
in the latter as executor.
On the other hand, as will be discussed in greater detail below, it cannot in my
view be said that Mr
Kolver has been guilty of any maladministration or any
other form of misconduct in respect of Mr Brooks’ deceased
estate.
[66]
The question whether it
is just and equitable that Mr Kolver be removed from his office as executor is
thus a difficult one. The
discretion vested in the High Court by
section
54(1)(a)(v)
is a discretion in the strict sense and an appellate court will
ordinarily only interfere with the exercise of that discretion in
limited
circumstances; for example if it is shown that the High Court did not act
judicially in exercising its discretion, or based
the exercise of that
discretion on a misdirection on the material facts or on wrong principles of
law.
[67]
Following this approach, I
am of the view that this Court should not interfere with the exercise by the
High Court of its discretion
in this regard. The estate is a small one and much
of the work of administration has already been done by Mr Kolver and will not
have to be repeated. It is also quite possible that Mr Gory himself may be
appointed as executor, thereby keeping the additional
costs to a minimum. On
balance, therefore, it would seem that the interests of the estate and the
beneficiaries will be served by
the removal of Mr Kolver as executor. This will
render it necessary to reformulate paragraphs 9.1 and 9.2 of the High Court
order
so as to suspend the administration of the deceased estate pending the
appointment of a new executor by the Master.
[58]
Paragraph 10 of the High
Court order deprived Mr Kolver of entitlement to remuneration for his services
in connection with the administration
of the deceased estate and to
reimbursement for expenses incurred. In my opinion, the High Court did exercise
its discretion unjudicially
in this regard in that its decision was not based on
substantial reasons.
[68]
Mr Kolver
may have been insensitive, lacking in tact and closed-minded in his dealings
with Mr Gory. Nonetheless, the High Court’s
conclusion that he was
“obstructive and tried his best to steamroller the administration of the
estate through on a basis that
the applicant’s claim be negated”
failed to give proper weight to the fact that he could not recognise Mr
Gory’s
claim given the law in existence at the time. In fact, Mr Kolver
would have been acting unlawfully had he recognised Mr Gory as
the surviving
spouse of the deceased Mr Brooks for the purposes of section 1(1) of the Act.
Before he was legally able to do so,
the constitutionality of this section had
to be challenged in legal proceedings, a court had to declare the section to be
unconstitutional
and such a declaration of invalidity had to be confirmed by
this Court. This being so, the High Court’s statement that Mr
Kolver
“bluntly refused to consider the applicant’s claim” is based
on an incorrect principle.
[59]
Mr Kolver advised Mr Gory
at an early stage that the immovable property would in his view have to be sold
to generate cash to settle
the debts of the deceased estate. Notwithstanding Mr
Gory having legal representation from shortly after the death of the deceased
on
30 April 2005, he made contradictory claims against the estate without
furnishing Mr Kolver with sufficient facts in support of
these claims. He also
failed to institute proceedings for a declaration of constitutional invalidity
until early in October 2005.
In the meantime, Mr Kolver was obliged to take the
movable assets of the estate into his
custody
[69]
and to take steps to
sell the immovable property to defray the debts of the estate which were
increasing continually as no income
was being received from the property or from
any other source. In view of the small size of the estate, he could not
realistically
be expected to suspend winding-up the estate until such time as Mr
Gory had formally challenged the legislation in question. Had
Mr Gory acted
more expeditiously in challenging the constitutional validity of section 1(1) of
the Act, certain of the problems which
later arose between the parties in
relation to the assets of the intestate estate might well have been avoided. In
the light of
these circumstances, paragraph 10 of the High Court order must be
set aside.
Costs
[60]
In terms of paragraph 11 of
the High Court order, Mr Kolver was ordered
de bonis propriis
to pay one
half of Mr Gory’s costs, the other half of such costs to be paid by the
second and third respondents jointly and
severally. In this regard, it is
important to note that Mr Kolver did not oppose the declaration of
constitutional invalidity of
section 1(1) sought. He opposed only the costs
order sought against him in his capacity as executor. Contrary to what was said
by the High Court in its judgment, Mr Gory did
not
in his notice of
motion ask for costs against Mr Kolver in his personal capacity. Counsel for Mr
Gory eventually conceded before
us that it was only in argument before
Hartzenberg J that reference was made to a
de bonis propriis
costs order
against Mr Kolver and that the notice of motion was not amended in this regard.
This being so, and in the light of the
circumstances set out in the preceding
two paragraphs of this judgment, it was neither just nor equitable for Mr Kolver
to have been
burdened by the High Court with a costs order in his personal
capacity and paragraph 11 of the High Court order must be set
aside.
[61]
Who then should, as a
matter of justice and equity, pay Mr Gory’s costs in the court below? The
reason why Hartzenberg J ordered
the second and third respondents to pay one
half of such costs was that, in his view, Mr Kolver “was aided and abetted
[in
what Hartzenberg J regarded as his ‘obstructive’
conduct
[70]
] by the second and third
respondents” and that their denial of a permanent life partnership with
reciprocal duties of support
between Mr Gory and their son could not “be
justified”.
[71]
To my mind,
it is apparent from the affidavits filed in the court below that, while the
second and third respondents treated Mr
Gory, in the period after their
son’s sudden death, in a manner that was insensitive to Mr Gory’s
shock and grief, they
had nevertheless gone some way during their son’s
life towards acknowledging Mr Gory as their son’s life partner and
overcoming such prejudices as they may have had based on their son’s
sexual orientation. As with all inheritance disputes,
it is distressing to see
people who apparently cared deeply for the deceased in their own ways set at
loggerheads over the question
of entitlement to the deceased’s estate. I
do not consider it to be in the interests of justice and equity that the second
and third respondents be mulcted in costs. For reasons on which I will
elaborate below, I am of the view that the fairest solution
would be to order
the fifth respondent (the Minister) to pay the costs incurred by Mr Gory in the
High Court.
[62]
As indicated above, apart
from filing an answering affidavit dealing in the main with the question of
retrospectivity of the declaration
of constitutional invalidity of section 1(1)
of the Act, the Minister did not
formally
oppose Mr Gory’s
application in the High Court.
[72]
In his application for confirmation of the relevant paragraphs of the order of
the High Court, however, Mr Gory asked that the Minister
be ordered to pay his
costs in the proceedings in this Court.
[63]
The Minister relied on a
number of judgments of this Court in support of the proposition that government
departments should provide
assistance to the courts by providing them with
sufficient information in order to enable them to consider matters involving a
constitutional
challenge to legislation on full
facts.
[73]
The Minister submitted
that, as she had raised valid constitutional concerns in the High Court on the
issue of retrospectivity,
she had “done her duty” by assisting the
High Court in arriving at a just and fair
conclusion.
[64]
The problem with this
argument is that, despite the fact that the High Court did not limit its
declaration of constitutional invalidity
of section 1(1) of the Act in the
manner suggested by the Minister in her affidavit, the Minister opposed Mr
Gory’s application
to this Court for confirmation of such declaration on
the sole basis that Mr Gory had also asked for a costs order against her in
this
Court. Despite some initial confusion and uncertainty in argument before us, it
was ultimately made clear that the Minister
still abided by the concerns
expressed in the answering affidavit on the question of retrospectivity and that
these concerns had
not
been addressed by the order made by the High
Court. This notwithstanding, the Minister did not see fit to oppose Mr
Gory’s
application to this Court for confirmation of, inter alia,
paragraph 3 of the High Court order dealing with retrospectivity. To
my mind,
something more substantive is required when a state official is called upon to
deal with the constitutionality of a statutory
provision falling under his or
her administration and with the formulation of an appropriate remedy in the
event that such provision
is held to be constitutionally invalid is under
consideration by a court.
[65]
The State is under an
ongoing constitutional obligation to “respect, protect, promote and fulfil
the rights in the Bill of
Rights”
[74]
by ensuring (inter
alia) that legislation which violates constitutional rights is amended or
replaced. Despite this obligation,
and despite dicta of this Court to the
effect that comprehensive legislation accommodating same-sex life partnerships
in a constitutionally
acceptable manner is
necessary,
[75]
such legislation has
not yet been forthcoming. Members of the gay and lesbian community have
continued to have to approach the courts
to challenge legislation violating
their constitutional rights and, in this way, to achieve piecemeal reform of the
law. This is
illustrated yet again by the present proceedings. In the final
analysis, it is the State which is responsible for section 1(1) of
the Act still
remaining on the statute books in its unconstitutional form. The estate is a
small one, but the principle involved
is important. The effect of ordering Mr
Gory, Mr Brooks’ parents or Mr Kolver in his capacity as executor to pay
costs would
be to burden those ill-resourced to do so with the costs of
asserting important constitutional rights in the interests of the broader
society. The exceptional circumstances of this case call for an exceptional
costs order. Justice and equity thus require that the
Minister should be
ordered to pay Mr Gory’s costs, not only in this Court, but also in the
court below, as well as the costs
of the first respondent in both
courts.
Order
[66]
In the circumstances, the
following order is made:
(a)
The application for leave to intervene by the first to the fourth
intervening parties is granted, with no order being made as to
costs.
(b)
The conditional application for leave to intervene by Mr Bobby Lee
Bell is granted, with no order being made as to costs.
(c)
The first respondent’s application for leave to appeal is
granted, the appeal succeeds in part and is dismissed in part, as
appears from
paragraph
(f)
below.
(d)
The application for confirmation is granted to the extent set out
in paragraph
(f)
below.
(e)
The order handed down by the
Pretoria High Court on 31 March 2006 is set aside.
(f)
1. It is declared that, with effect from 27 April 1994, the
omission in
section 1(1)
of the
Intestate Succession Act 81 of 1987
after the
word “spouse”, wherever it appears in the section, of the words
“or partner in a permanent same-sex life
partnership in which the partners
have undertaken reciprocal duties of support” is unconstitutional and
invalid.
2. It is declared that, with effect from 27 April 1994,
section 1(1)
of the
Intestate Succession Act is
to be read as though the following words appear
therein after the word “spouse”, wherever it appears in the section:
“or partner in a permanent same-sex life partnership in which the partners
have undertaken reciprocal duties of support”.
3. In terms of section 172(1)(b) of the Constitution, the orders in the
preceding two paragraphs of this order shall not invalidate
any transfer of
ownership prior to the date of this order of any property pursuant to the
distribution of the residue of an estate,
unless it is established that when
such transfer was effected, the transferee was on notice that the property in
question was subject
to a legal challenge on the grounds upon which the
applicant brought the present application.
4. If serious administrative or practical problems are experienced, any
interested person may approach this Court for a variation
of this order.
5. It is declared that the applicant and the late Henry Harrison Brooks were, at
the time of the death of Mr Brooks, partners in
a permanent same-sex life
partnership in which they had undertaken reciprocal duties of support.
6. It is declared that the applicant is the sole intestate heir of the late
Henry Harrison Brooks.
7. The agreement, dated 9 September 2005, in which the property situated at 152
First Avenue, Bezuidenhout Valley, Johannesburg was
purportedly sold to the
fourth and/or fifth respondents in the Pretoria High Court is declared to be of
no force and effect.
8. The first, second and third respondents jointly and severally, the one
complying the other to be absolved, are directed to return
the items on X2, as
amended by the Pretoria High Court, to the applicant within seven days of the
date of this order.
9. The first respondent is removed from his office as executor of the estate of
the late Henry Harrison Brooks and the administration
of this estate is
suspended pending the appointment of a new executor by the Master of the High
Court, Pretoria.
(g)
The fifth respondent is
ordered to pay the applicant’s and the first respondent’s costs in
this Court and in the Pretoria
High Court, including the costs of two counsel in
the case of the applicant where applicable.
Langa CJ, Moseneke
DCJ, Kondile AJ, Madala J, Mokgoro J, O’Regan J, Sachs J, Van der
Westhuizen J and Yacoob J concur in the
judgment of Van Heerden AJ.
For the Applicant: Advocate DI Berger SC and Advocate PL Mokoena instructed
by Nicholls, Cambanis & Associates.
For the First Respondent: Advocate E Prinsloo instructed by Danie Kolver
Inc.
For the Seventh Respondent: Advocate S Nthai and Advocate M Mokadikoa
instructed by The State Attorney, Pretoria.
For the Intervening Parties: Advocate P Hodes SC and Advocate A Katz
instructed by Smith, Tabata, Buchanan Boyes Attorneys.
For the Counter-intervening Party: Advocate M Chaskalson and Advocate M
Sikhakhane instructed by Morkel & De Villiers.
[1]
Gory v Kolver NO and Others
[2006] ZAGPHC 28
;
2006 (7) BCLR 775
(T).
[2]
In terms of section 1(1)(d)(i)
of the Act, which provides that –
“[i]f after the commencement of this Act a person (hereinafter referred to
as the ‘deceased’) dies intestate, either
wholly or in part, and
– . . . (d) is not survived by a spouse or descendant, but is survived
– (i) by both his parents,
his parents shall inherit the intestate estate
in equal
shares”.
[3]
In
terms of section 1(1)(a) of the Act, which provides that –
“[i]f after the commencement of this Act a person (hereinafter referred to
as the ‘deceased’) dies intestate, either
wholly or in part, and
– (a) is survived by a spouse, but not by a descendant, such spouse shall
inherit the intestate
estate”.
[4]
X2,
as amended by Hartzenberg J, is a list of movables belonging to the deceased
and/or to Mr Gory which were removed from Mr Gory’s
possession after the
deceased’s death by the first, second and third respondents and members of
the deceased’s family.
These movable assets were still in the possession
of the first, second and/or third respondents at the time the court order was
made.
[5]
Both this paragraph and the
next one were numbered 9 in the order of the High Court. I have numbered them
9.1 and 9.2 to avoid confusion.
[6]
In terms of section 172(2)(a)
of the Constitution, para 4 of the order of the High Court does not need to be
“confirmed”,
whereas paras 1, 2 and 3 have no force unless they are
confirmed by this Court. The same applies to the reference to para 4 of the
order of the High Court in paras 10 and 11 of that order.
[7]
Id.
[8]
Id.
[9]
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3)
BCLR 355
(CC).
[10]
In the absence of a
testamentary executor, or if a person nominated to be a testamentary executor
cannot be found, is dead, refuses
or is incapacitated to act as executor, then
an executor is appointed in accordance with the provisions of
sections 18
and
19
of the
Administration of Estates Act 66 of 1965
.
[11]
In terms of section
1(1)(e)(i) of the Act, which provides that –
“[i]f after the commencement of this Act a person (hereinafter referred to
as the ‘deceased’) dies intestate, either
wholly or in part, and
– . . . (e) is not survived by a spouse or descendant or parent, but is
survived – (i) by –
. . . (bb) descendants of his deceased parents
who are related to the deceased through both such parents . . . the intestate
estate
shall be divided into two equal shares and the descendants related to the
deceased through the deceased mother shall inherit one
half of the estate and
the descendants related to the deceased through the deceased father shall
inherit the other half of the
estate”.
[12]
See in this regard Erasmus
Superior Court Practice
(Service 22, 2004)
C4-16, commenting on CC Rule 8.
[13]
See for example
United
Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another
1972 (4) SA 409
(C) at 415C-416C.
[14]
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 26;
National Director of Public Prosecutions and
Another v Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR 476
(CC)
at para 58.
[15]
United Watch &
Diamond Co (Pty) Ltd v Disa Hotels Ltd
above n
13
at 416C.
[16]
See the approach of this
Court to the underlying principles governing the admission of an
amicus
curiae
in any given case, apart from the interest of the prospective
amicus
in the proceedings, as articulated in cases such as
Fose v
Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC)
at para 9 and
In re certain amicus curiae applications: Minister of Health
and Others v Treatment Action Campaign and Others
2002 (5) SA 713
(CC);
2002
(10) BCLR 1023
(CC) at paras 3-5.
[17]
See for example
Ferreira
v Levin NO
above n
14
at paras
27-28 and
Fose v Minister of Safety and Security
above n
16
at para 94. See further the discussion
in paras [37]-[39] below.
[18]
Both the interim
Constitution (Act 200 of 1993, date of operation 27 April 1994) and the 1996
Constitution (Constitution of the Republic
of South Africa, 1996, date of
operation 4 February 1997) prohibit unfair discrimination on the (specified)
ground of sexual orientation
and provide that discrimination on any specified
ground is presumed to be unfair unless the contrary is established (sections
8(2)
and 8(4) of the interim Constitution, sections 9(3) and 9(5) of the final
Constitution). Furthermore, both Constitutions protect
the right to dignity in
substantially identical terms (section 10 of both the interim and the final
Constitutions). The Act came
into operation on 18 March 1988. Thus, as will be
discussed further below,
if
this Court agrees with the High Court that
section 1(1) of the Act unjustifiably violates the applicant’s fundamental
rights
to equality and dignity, then this section is unconstitutional and
invalid with effect from 27 April 1994 and must be declared to
be so, unless an
order limiting the retrospective effect of the declaration of invalidity in
terms of section 172(1)(b)(i) is required
in the interests of justice and
equity.
[19]
For the relevant provisions
of the interim Constitution, see preceding note.
[20]
See
National Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000
(2) SA 1
(CC) at para 37 n 41
[1999] ZACC 17
; ;
2000 (1) BCLR 39
(CC) at para 37
n 42;
Satchwell v President of the Republic of South Africa and Another
2002 (6) SA 1
(CC) at para 32 n 27
[2002] ZACC 18
; ;
2002 (9) BCLR 986
(CC) at para 32 n 22;
Du Toit and Another v Minister of Welfare and Population Development and
Others (Lesbian and Gay Equality Project as Amicus Curiae)
[2002] ZACC 20
;
2003 (2) SA 198
(CC);
2002 (10) BCLR 1006
(CC) at para 32 n 33.
[21]
See n
18
above for the relevant provisions of
the interim Constitution.
[22]
Above n
20
at paras 64-67, 70 and 73-75.
[23]
Id at para 74.
[24]
Id at para 75.
[25]
See
National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs
above n
20
(unconstitutionality of provision of
immigration statute which gave special benefits to foreigners married to South
African citizens
or permanent residents, but did not confer such benefits on
permanent same-sex life partners);
Satchwell
above n
20
(unconstitutionality of provisions of
statute and of certain regulations issued in terms thereof which accorded
financial benefits
to the surviving “spouse” of a deceased judge,
but not to a deceased judge’s surviving permanent same-sex life
partner);
Du Toit
above n
20
(unconstitutionality of provision in child care legislation which allowed
married persons to adopt children jointly, but did not
allow permanent same-sex
life partners to do so);
J and Another v Director General, Department of Home
Affairs, and Others
[2003] ZACC 3
;
2003 (5) SA 621
(CC);
2003 (5) BCLR 463
(CC)
(unconstitutionality of statutory provision providing for the parental rights of
a husband in cases where the child in question
had been conceived through the
artificial insemination of his wife, but not for the parental rights of
permanent same-sex life partners
in similar cases). See also
Langemaat v
Minister of Safety and Security and Others
1998 (3) SA 312
(T);
1998 (4)
BCLR 444
(T) (unconstitutionality of medical scheme regulations not allowing for
the registration of a permanent same-sex life partner as
a dependant under the
scheme);
Farr v Mutual & Federal Insurance Co Ltd
2000 (3) SA 684
(C)
(an exclusion of liability by the insurer in respect of “a member of the
policy holder’s family normally resident
with him” held to apply to
a person who shared the insured’s home and had been in a same-sex
relationship with him for
a period of ten years preceding the accident in which
such person had been injured);
Du Plessis v Road Accident Fund
2004 (1)
SA 359
(SCA) (extension of third party action for damages for loss of support
and for funeral expenses to partners in a permanent same-sex
life partnership
who had undertaken a contractual duty to support each other).
[26]
Thus, in
J and Another v
Director General, Department of Home Affairs, and Others
above n
25
at para 23, this Court stated that
–
“[c]omprehensive legislation regularising relationships between gay and
lesbian persons is necessary. It is unsatisfactory
for the Courts to grant
piecemeal relief to members of the gay and lesbian community as and when aspects
of their relationships are
found to be prejudiced by unconstitutional
legislation.”
Further at para 25, that “[t]he
executive and the legislature are . . . obliged to deal comprehensively and
timeously with existing
unfair discrimination against gays and
lesbians.”
[27]
Above n
9
at para 160.
[28]
South African Law Reform
Commission, in its Project 118 on
Domestic Partnerships
, discussed by
Sachs J in
Fourie
at paras 125-131. In 1998, a Project Committee under
the chairmanship of Howie P of the Supreme Court of Appeal was appointed by
the
Minister of Justice and Constitutional Development to assist the SALRC in this
Project 118, an investigation into domestic partnerships
(heterosexual and
same-sex). In October 2001, the Commission published an issue paper in the form
of a questionnaire (Issue Paper
No 17). This elicited a lively and widespread
response and, in August 2003, a discussion paper (Discussion Paper No 104) was
published
for general information and comment (see further in this regard the
judgment of Sachs J in
Fourie
at paras 28 and 126-128). In March 2006,
the Commission handed its final
Report on Domestic Partnerships
, with
draft legislation attached,
to the Minister for her consideration and
this report was subsequently released in October 2006.
[29]
Above n
20
.
[30]
Above n
20
.
[31]
Above n
20
.
[32]
Above n
25
.
[33]
See
National Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs
above n
20
at para 37 n 41; para 37 n 42;
Satchwell v President of the Republic of South Africa and Another
above n
20
at para 32 n 27; para 32 n 22;
Du
Toit v Minister of Welfare and Population Development (Lesbian and Gay Equality
Project as Amicus Curiae)
above n
20
at para 32 n 33.
[34]
Cf the majority decision of
this Court in
Volks NO v Robinson and Others
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC).
[35]
Above n
20
at para 76.
[36]
[1997] ZACC 14
;
1997 (2) SACR 740
(CC);
1997
(11) BCLR 1543
(CC).
[37]
This is evident from both of
the other decisions of this Court on the constitutionality of section 1(1) of
the Act, in
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission
for Gender Equality as Amicus Curiae); Shibi v Sithole and Others;
South African
Human Rights Commission and Another v President of the Republic of South Africa
and Another
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC) and
Daniels v
Campbell NO and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC).
[38]
See para [56] below.
[39]
See the cases cited in n
37
above.
[40]
See, for example, the
Bhe
case above n
37
at para 132 and
para 136 order 10;
Moseneke and Others v The Master and Another
[2000] ZACC 27
;
2001 (2)
SA 18
(CC);
2001 (2) BCLR 103
(CC) at para 30 and para 31 order 5.
[41]
See para [15] above and the
authorities there cited.
[42]
See para [23] above, in
particular the cases referred to in n
25
above.
[43]
Above n
37
.
[44]
That section, together with
the Regulations for the Administration and Distribution of the Estates of
Deceased Blacks (R200) published
in
Government Gazette
No 10601 dated 6
February 1987, were also declared to be unconstitutional and invalid.
[45]
The deceased’s father
in
Bhe
and the deceased’s two male cousins in
Shibi
.
[46]
Section 4(1) of the interim
Constitution likewise provided that –
“[t]his Constitution shall be the supreme law of the Republic and any law
or act inconsistent with its provisions shall, unless
otherwise provided
expressly or by necessary implication in this Constitution, be of no force and
effect to the extent of the
inconsistency.”
[47]
See in this regard section 229 of the interim Constitution, as also
Zantsi v
The Council of State, Ciskei, and Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10)
BCLR 1424
(CC) at para 27 and
Ynuico Ltd v Minister of Trade and Industry and
Others
[1996] ZACC 12
;
1996 (3) SA 989
(CC);
1996 (6) BCLR 798
(CC) at para 8.
[48]
See
Bhe
above n
37
at para 128 and para [15] above,
especially n
18
above. See further
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
above n
14
at paras 26-28 and 30;
Prince v President, Cape Law Society, and Others
[2000] ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC) at paras 35-38 and, generally, Currie & De Waal
The Bill of Rights Handbook
5 ed (Juta, Cape Town 2005) at 55-57;
Rautenbach “Introduction to the Bill of Rights” in
Bill of Rights
Compendium
(Butterworths, Durban 1998, with looseleaf updates) para 1A6 at
1A-11–1A-12.
[49]
See
S v Bhulwana; S v
Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32;
S v
Ntsele
above n
36
at para 14; see
further Currie & De Waal above n
48
at 206-209; Rautenbach
above n
48
para 1A98.5 at 1A-202–1A-203 and
the other authorities there cited.
[50]
See for example
Fose v
Minister of Safety and Security
above n
16
at para 69.
[51]
Fourie
above n
9
at para 59; see also
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
above n
20
at paras 42-54.
[52]
See the
Bhe
case
above n
37
at para 126.
[53]
Above n
37
.
[54]
Id at paras 126-127.
[55]
Id at para 136 order 8.
[56]
As was done in both
Bhe
above n
37
at para 132 and para 136
order 10 and
Moseneke and Others v The Master and Another
above n
40
at para 30 and para 31 order 5.
[57]
Section 167(3)(b) of the
Constitution.
[58]
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003
(12) BCLR 1301
(CC).
[59]
Id at para 30.
[60]
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000
(8) BCLR 837
(CC) at para 18.
[61]
Above n
1
at paras 9-13 and 25.
[62]
None of which is applicable
to the present case.
[63]
1975 (2) SA 1
(T).
[64]
Id at 17E-F.
[65]
“[Whatever the
position may be] [u]nder the common law and according to the authorities under
the old Administration of Estates
Act, 24 of 1913, the Court is now empowered in
terms of section 54(1)(a)(v) of the present
Administration of Estates Act, 66 of
1965
, to remove an executor from office if it is undesirable that he should act
as executor of the estate concerned. The Court has a
discretion and the
predominating consideration remains the interests of the estate and of the
beneficiaries.” (Translation
taken from the headnote to the reported
judgment at 2E-F.)
[66]
On the removal by the court
of an executor in terms of
section 54(1)(a)(v)
, see generally Meyerowitz
The
Law and Practice of Administration of Estates and Estate Duty
2004 ed (The
Taxpayer CC, Cape Town) at 11-1–11-5 and the authorities there cited.
[67]
See
National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs
above n
20
at para 11;
Mabaso v Law Society,
Northern Provinces, and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC)
at para 20;
S v Basson
2005 (12) BCLR 1192
(CC) at para 110;
Giddey NO
v JC Barnard and Partners
CCT 65/05, 1 September 2006, as yet unreported at
para 19;
South African Broadcasting Corporation Limited v The National
Director of Public Prosecutions and Others
CCT 58/06, 21 September 2006, as
yet unreported at paras 39 and 41.
[68]
See for example
Ex parte
Neethling and Others
1951 (4) SA 331
(A) at 335D-E.
[69]
Section 26(1)
of the
Administration of Estates Act 66 of 1965
.
[70]
See para [52] above.
[71]
See the reported judgment,
above n
1
at para 30.
[72]
Nevertheless, as pointed out
above, the submissions made in the Minister’s answering affidavit did, in
substance, constitute
opposition to the relief sought by Mr Gory.
[73]
See
Minister of Justice v
Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6) BCLR 677
(CC) at para 41;
Khosa and
Others v Minister of Social Development; Mahlaule v Minister of Social
Development and Others
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC) at paras
13, 14, 19 and 25,
S v Ntsele
above n
36
at para 13;
Parbhoo and Others v
Getz NO and Another
1997 (4) SA 1095
(CC);
1997 (10) BCLR 1337
(CC) at para
5;
S v Mello and Another
[1998] ZACC 7
;
1998 (3) SA 712
(CC);
1998 (7) BCLR 908
(CC) at
para 11;
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
above n
20
at para 7.
[74]
Section 7(2) of the
Constitution.
[75]
See
J and Another v
Director General, Department of Home Affairs, and Others
above n
25
at paras 23 and 25;
Minister of Home
Affairs and Another v Fourie and Others
above n 9 at paras 58 and 116.