Laubscher N.O. v Duplan and Another (CCT234/15) [2016] ZACC 44; 2017 (2) SA 264 (CC); 2017 (4) BCLR 415 (CC) (30 November 2016)

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[2016] ZACC 44
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Laubscher N.O. v Duplan and Another (CCT234/15) [2016] ZACC 44; 2017 (2) SA 264 (CC); 2017 (4) BCLR 415 (CC) (30 November 2016)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 234/15
In the matter
between:
RASMUS ELARDUS
ERASMUS LAUBSCHER
N.O.
Applicant
and
ERIC JEAN
SPIRIDION
DUPLAN
First Respondent
MASTER OF THE
HIGH COURT
PRETORIA
Second Respondent
and
COMMISSION FOR
GENDER
EQUALITY
Amicus Curiae
Neutral citation:
Laubscher N.O. v Duplan and Another
[2016] ZACC 44
Coram:
Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga
J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J
Judgments:
Mbha AJ (majority): [1] to [57]
Froneman J
(concurring): [58] to [87]
Heard on:
18
August 2016
Decided on:
30 November 2016
Summary:
same-sex
permanent partners — reciprocal duty of support — right
to inherit — intestate succession
Section 1(1) of the
Intestate Succession Act — Section 13(2)(b) of the Civil Union
Act — effect of reading-in remedy
— interplay between
Gory
and the Civil Union Act
ORDER
On direct appeal
from the High Court of South Africa, Gauteng Division, Pretoria:
1. Leave to appeal is granted.
2. The appeal is dismissed.
JUDGMENT
MBHA AJ (Nkabinde
ADCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Musi AJ and Zondo J concurring):
Introduction
[1]
The applicant seeks leave to appeal directly to this Court in
terms of section 167(6)(b) of the Constitution
[1]
read with rule 19 of the Rules of this Court,
[2]
against an order of Muller AJ in the Gauteng Division of the High
Court, Pretoria (High Court).  The primary issue for
determination
is whether Dr Rasmus Laubscher (applicant), in his
personal capacity, or Mr Eric Duplan (respondent),
[3]
who had lived with Mr Cornelius Daniel Laubscher (deceased) in a
permanent same-sex partnership until the latter’s death,
is
entitled to inherit from the intestate estate of the deceased.
[2]
This matter concerns the intestate succession rights of
unmarried same-sex partners in a permanent same-sex partnership, in
which
the partners have undertaken reciprocal duties of support.
It accordingly requires a consideration of the interplay between
the
“reading-in” order by this Court in the case of
Gory
[4]
into the provisions of section 1(1) of the Intestate Succession
Act (ISA),
[5]
after this Act had been found to be unconstitutional, and the Civil
Union Act (CUA).
[6]
The latter makes provision for the registration and solemnisation of
civil unions between same-sex couples.
Background
[3]
The deceased and the respondent had lived together since 2003
and during this time had undertaken reciprocal duties of support.

Their partnership was neither solemnised nor registered in terms of
CUA.  On 13 February 2015, the deceased died intestate
leaving
behind no descendants or adopted children.  The deceased’s
parents had predeceased him.  The applicant,
the brother of the
deceased and the only surviving child of their parents, is the
executor of the deceased estate.  The dispute
is about whether
the respondent is entitled to inherit the intestate estate
notwithstanding the fact that there was never a formal
solemnisation
or registration of their partnership.
[4]
The Commission for Gender Equality (CGE), a Chapter 9
institution whose mandate is to promote respect for gender equality
and to
protect, develop and attain gender equality, was admitted as
an
amicus curiae
(friend of the court).
Litigation
history
[5]
The issue before the High Court, which by agreement would be
adjudicated as a stated case, was whether the respondent was entitled

to inherit the intestate estate of the deceased.  Relying on
Gory
, the respondent contended that, notwithstanding the
non-solemnisation and non-registration of the civil partnership
between them
in terms of CUA,
[7]
he was entitled to inherit.
[6]
The applicant contended that, notwithstanding
Gory
, the
implication of CUA’s commencement was that only same-sex
partners who have solemnised and registered a civil union in
terms of
CUA qualify to inherit the intestate estate of a partner.
Accordingly, the applicant contended that the respondent
is not a
“spouse” of the deceased within the meaning of
section 1(1)(a) of ISA and is therefore disentitled to
inherit
from the intestate estate.
[7]
The High Court rightly noted that the recognition of same-sex
marriages in South Africa and across the globe has a long history of

discrimination and prejudice.  Accordingly, the need to
recognise same-sex marriages when CUA came into effect on 30 November

2006 was long overdue.  The legal consequences that flow from a
civil union concluded in terms of CUA are similar to those
accorded
to opposite-sex couples who are married in terms of the Marriage
Act.
[8]
The High Court noted, however, that CUA did not aim to alter the
position of opposite-sex couples who have elected not to
marry nor
did it aim to alter the position of same-sex couples who likewise
elected not to solemnise and register their same-sex
partnerships.
[8]
The High Court observed that prior to the enactment of CUA,
this Court had addressed the non-recognition of same-sex partnerships

and incidental issues, on a case-by-case basis.  Accordingly, in
Gory
this Court held that section 1(1) of ISA was
unconstitutional and invalid to the extent that the words “or
partner in a permanent
same-sex partnership in which the partners
have undertaken reciprocal duties of support” were excluded
after the word “spouse”.
[9]
These words were then read-in by this Court retrospectively with
effect from 27 April 1994.
[10]
At the time
Gory
was handed down, CUA had not yet come
into operation.
[9]
The High Court found that it was not at liberty to deviate
from a reading-in of those words owing to the principle associated
with
the doctrine of
stare decisis
which requires lower courts
to follow the decisions of higher courts in the judicial hierarchy to
ensure predictability, reliability,
uniformity, equality, certainty
and convenience.
[11]
It observed that a deviation may be possible in instances where a
provision that is declared unconstitutional has been amended
and has
undergone a material change by way of legislative intervention –
provided that the subsequent amendment or introduction
of a statute
that removes the constitutional complaint is not open to attack.
The High Court noted, albeit
obiter
, that the “reading-in”
led to discrimination against unmarried heterosexual couples.
It then granted an order
declaring the respondent to be the only
intestate heir to the estate of the deceased.  Furthermore, the
applicant was removed
as the appointed executor of the deceased
estate.  It is that decision that the applicant seeks to assail
in the present proceedings.
In this Court
Applicant’s submissions
[10]
The applicant submitted that the entire dispute is based on
the order in
Gory
and the effect that the subsequent enactment
of CUA had on that order.  According to the applicant, the High
Court incorrectly
confined itself to the principle of
stare
decisis
in finding that it could not interfere with
Gory
.
In doing so the High Court failed to appreciate the
Legislature’s power to amend the law (as contained in
Gory
)
and substitute the decisions of this Court.
[11]
The applicant submitted further that
Gory
was an
interim measure only until Parliament resolved the underlying
mischief.  His contention was that the mischief was the

inability of permanent same-sex partners to enter into legally
recognised unions, such as civil marriages.  This contention
was
based on the notion that the finding in
Fourie
[12]
spurred on a series of “piecemeal” judgments relating to
specific statutes.  In his view, the enactment of section

13(2)(b) of CUA ensured that same-sex couples were brought in from
the legal cold.
[13]
The section remedied the constitutional defect that
Gory
sought
to cure because, according to the provision, same-sex partners who
enter into civil unions under CUA would now automatically
be included
within the definition of “spouse” in section 1(1) of
ISA.  The applicant accordingly submitted
that CUA had repealed
the
Gory
order.  Reliance was also placed on the
interpretational maxim
cessante ratione legis cessat ipsa lex
(meaning that once the reason for a law falls away, the law
itself ceases to exist) to contend that section 13(2)(b) of CUA

had indeed replaced the law that was created through reading-in by
Gory
.
[12]
The applicant sought to rely on this Court’s decision in
Volks
,
[14]
and contended that permanent same-sex partners have a choice to enter
into civil unions and are afforded the same legal protection
as
opposite-sex partners.  Furthermore, to continue enforcing
Gory
when the same protection does not extend to permanent
opposite-sex partners, would be unfairly discriminatory.
Respondent’s submissions
[13]
The respondent refuted the applicant’s case on three
bases.  First, he submitted that the
Gory
order was not
an “interim remedy” that expired when CUA came into
force.  In his contention,
Gory
amended section 1(1) of
ISA and the amendment endures indefinitely until Parliament amends or
repeals it.  Secondly, CUA did
not repeal
Gory
.  The
two positions, stemming from
Gory
and CUA, are not
incompatible and they can and do live side by side.  Thirdly,
the argument that
Gory
had fallen away under the
cessante
ratione legis cessat ipsa lex
rule was incorrect.  The
reason being that the purpose of
Gory
was to qualify same-sex
permanent partners to inherit from one another intestate despite not
being “married”.
The respondent accordingly
submitted that the purpose had not fallen away, since only some of
the people protected by
Gory
are now also protected under
CUA.  In his view, the question whether same-sex permanent
partners who are not partners in a
civil union should continue to be
protected was a choice that this Court left to the Legislature.
Amicus Curiae’s submissions
[14]
CGE contended that there were no sound policy reasons to undo
the protections provided by
Gory
, particularly in view of the
fact that the wording of section 1(1) of ISA, as amended by
Gory
,
has been left untouched by the Legislature for over a decade.
CGE also submitted that
Gory
better gives effect to the
spirit, purport and objects of the Bill of Rights because it makes
clear that this Court does not prescribe
or prefer one form of family
relationship over another.  To highlight the changing societal
tendencies, CGE submitted statistics
to show that, generally, the
prevalence of permanent life partnerships was on the increase.
Direct leave to
appeal
[15]
As mentioned earlier, the applicant seeks to appeal the High
Court’s decision directly to this Court.  The effect of
doing so is that the Supreme Court of Appeal (SCA) will be bypassed.
However, an adequate explanation has to justify that
it is in the
interests of justice to circumvent the SCA.
[16]
The main reasons for seeking direct leave to appeal, as
motivated by the applicant, are twofold.  First, because the
dispute
concerns the interplay between a judgment of this Court and
the effect of subsequently enacted legislation, it is most
appropriate
for this Court to deal with an interpretation of its own
judgment.  Secondly, as the High Court primarily relied on the
principle
of
stare decisis
to find in favour of the
respondent, an appeal to the SCA would present the same challenge.
Thus, the applicant submitted
that the interests of finality dictate
that the matter should be heard by this Court directly.
[17]
A constitutional issue is raised as this matter concerns the
unequal enjoyment of inheritance rights of permanent same-sex
partners
who have not solemnised their partnership in terms of CUA.
This is specifically in light of the reading-in order of this Court

in
Gory.
[15]
However, the mere fact that the existence of a constitutional issue
is established does not automatically mean that leave
to appeal will
be granted.
[16]
The applicant must also show that the interests of justice require
that this Court hears the matter.
[17]
[18]
For the reasons set out by the applicant, I am of the view
that the interests of justice require this matter to be heard on
direct
appeal.  As the question before this Court requires an
interpretation of the interplay between the
Gory
order and
CUA, this Court is best placed to properly interpret its own order.
Aspects to be
considered
[19]
In determining whether the respondent qualifies as the
intestate successor to the deceased estate, the following aspects
must be
considered:
1. Was the reading-in remedy in
Gory
an interim measure?
2. The interplay between the
Gory
order and CUA.
3. Are the principles stemming from
Volks
applicable to this
matter?
[20]
I must at this stage make mention of the judgment by my
colleague, Froneman J (second judgment), which raises
challenging questions
in relation to the reach of
Gory
and the
effect of
Volks
.  It is commonplace for cases similar to
this one to give rise to viable interpretative differences.
However, enticing
as the second judgment’s interpretation may
be, I take a different route.
The reading-in
remedy in Gory as an “interim” measure
[21]
It is clear that in exercising its powers under section 172 of
the Constitution, this Court found that section 1(1) of ISA was
invalid,
but sought to cure its invalidity by virtue of a
“reading-in” order.
[18]
To this effect, this Court stated:
“
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 . .
. will not change. . . .  In the interim, there would seem to be
no
valid reason for treating section 1(1) of [ISA] 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.”
[19]
[22]
The applicant relied on this paragraph in
Gory
to
contend that the reading-in order was merely an interim measure that
fell away once CUA had been enacted.  I do not agree.
A
reading of
Gory
reveals that the Court was alive to the fact
that legislation allowing same-sex couples to enter into a civil
union with the same
consequences as a marriage was soon to be
enacted.  Thus the Court reasoned that “there would [then]
appear to be no
good reason for distinguishing between unmarried
heterosexual couples and unmarried same-sex couples in respect of
intestate succession”.
[20]
[23]
The Court thus acknowledged the imminent legislation that
would be enacted subsequent to
Fourie
, but nevertheless
employed the remedy of reading-in to cure the constitutional
invalidity of section 1(1) in the same way in which
reading-in has
been adopted to cure defects in other statutory provisions.
[21]
This was based on the premise that the envisaged legislation would
not necessarily amend section 1(1) of ISA, as amended
by the
Gory
order.
[24]
This Court in
Gory
made it
clear that its reading-in order was of indefinite duration albeit
subject to amendment or repeal by Parliament.  To
this effect,
it stated that
“[i]n the absence of legislation amending
the relevant statutes, the effect on these statutes of decisions of
this Court .
. . will not change”.
[22]
Clearly, the Court did not curtail the life of the
order in any way.  The meaning of “interim”,
according to Black’s
Law Dictionary, is “[i]n the
meantime; meanwhile; temporary; between”.
[23]
There is little to support the notion that
“interim” means that the period should be shorter rather
than longer.
The fact that Parliament has not specifically
amended section 1(1) of ISA in over 10 years does not affect the
nature of the
order.  The
Gory
order remains an interim one and is
operative from 27 April 1994 until such time as the Legislature
chooses to specifically amend
it.
The interplay
between the Gory order and CUA
[25]
There is a twofold approach that must be adopted in
considering the interplay between the
Gory
order and CUA.
In the first instance, a contextual approach requires an assessment
of whether the enactment of CUA addressed
the mischief that the
reading-in in the
Gory
order sought to address.  In the
second instance, the interpretative approach prescribes an
interpretation of section 1(1)
of ISA (as amended by the
Gory
order) and whether it has been specifically amended by CUA.
A discussion on both approaches follows.
The contextual approach: addressing the mischief
[26]
The contextual approach requires that we interrogate
Gory
so as to assess whether the mischief, which the
Gory
order
sought to address, has since been resolved by the enactment of CUA.
Although it may be tempting to circumvent the reasoning
in
Gory
(since the litigants’ divergent stances suggest the
reasoning may be open to multiple interpretations), I am of the view
that
the reasoning must be confronted to provide legal certainty.
[27]
In
Gory
, this Court stated:
“
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.”
[24]
[28]
In paragraph 29, on which both parties rely, this Court
expressed that—
“
[i]t
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.
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.
”
[29]
This paragraph is arguably the main source of the disquiet
between the parties.  In the first part, the Court indicates
that
if Parliament fails to respond to the
Fourie
deadline
or
if it enacts legislation that allows permanent same-sex partners to
enjoy the status and benefits of opposite-sex couples (the
latter
being what the enactment of CUA did), then the section will still
apply to permanent same-sex partners who have undertaken
reciprocal
duties of support but who do not “marry” under the new
dispensation.  Since the legislation passed
by Parliament (CUA)
fell within the second condition set by this Court, an argument can
be made that a specific amendment of section 1(1)
of ISA by
Parliament is still required to remove the reading-in.  In my
view, the general amendment brought about by section 13(2)(b)
of
CUA did not achieve this goal.
[30]
In the latter part of the same paragraph, the Court then
expressed an
obiter
view in light of the submissions of the
Starke sisters,
[25]
namely that if the impediment were to be removed, then there would be
no good reason for distinguishing between unmarried opposite-sex

couples and unmarried same-sex couples in respect of intestate
succession.
[26]
However this does not necessarily justify the applicant’s
position that the enactment of CUA cured the mischief behind
the
reading-in in the
Gory
order as: (i) this view was expressed
by this Court
obiter
and therefore was not binding, and (ii)
to the extent that section 13(2)(b) of CUA amended the relevant
provisions of ISA, the amendment
was indirect at best.
[27]
[31]
I agree that an inequality may exist between opposite-sex
permanent partners and their same-sex counterparts by virtue of the
Gory
order.
[28]
The question is whether same-sex permanent partners ought to be
deprived of the
Gory
benefit or whether the benefit should be
extended to include opposite-sex permanent partners.  The
respondent refers to this
process as “equalising up”
versus “equalising down” and contends that it is a task
perhaps best left to
Parliament.  In my view, the Legislature is
competent to adopt either a generous or a more restrictive approach
to its recognition
of permanent relationships, which it has done in
the past.  The legislative developments pursuant to
Satchwell
1
are instructive.
[29]
In that case, this Court declared the omission of the words “or
partner in a permanent same-sex life partnership in
which the
partners have undertaken reciprocal duties of support” from
sections 8 and 9 of the Judges’ Remuneration
and Conditions of
Employment Act,
[30]
to be inconsistent with the Constitution.
[31]
[32]
Although this Court had specifically ordered that the benefit
be extended to permanent same-sex partners,
[32]
the Legislature, within its rightful discretion, widened the ambit of
protection to include both same-sex and opposite-sex unmarried

partners.
[33]
The result is an apt example of the Legislature “equalising up”
while giving effect to the rights prescribed
by this Court’s
order.  In my view, the Court in
Gory
had clearly
foreseen the enactment of CUA and had envisioned that same-sex
permanent partners would continue to be protected despite
not
concluding a “marriage” (or union as it turned out to
be), under the new dispensation.  Any indication to
the contrary
is best left to Parliament to decipher.
[33]
In terms of section 13(2)(b) of CUA, a partner who registers a
union in terms of this Act is deemed to be a “spouse”
for
purposes of all law other than legislation expressly dealing with
civil and customary marriages.  CUA’s impact on
the
extended definition of spouse is that registered civil union partners
are protected by section 1(1) of ISA.  However,
the
Gory
order contemplated the inclusion of
all
permanent
same sex partners
within the ambit of section 1(1) of ISA.
Accordingly, CUA gave birth to an additional category of
beneficiaries (those permanent
same-sex partners who register their
union).  I am therefore minded to follow the interpretation that
registered civil union
partners are protected in their own right by
CUA – whereas same-sex permanent partners who have undertaken
reciprocal duties
of support but have not registered under CUA, enjoy
protection through the
Gory
order.  A same-sex partner’s
option to conclude a civil union or to remain in a permanent same-sex
life partnership (and
qualify as an intestate beneficiary in terms of
section 1(1) of ISA either way) may be perceived as offering double
protection
to same-sex permanent partners.
[34]
It needs to be emphasised that when
Gory
was handed
down, the Court was well aware of the deadline imposed as a result of
the matter of
Fourie
which would result in the protection of
same-sex partners who register their unions, whether or not
legislation was enacted.
For this reason, several paragraphs
within its judgment address the operation of its order
notwithstanding the introduction of
a new regime that gives same-sex
permanent partners the right to “marry”.
[34]
[35]
Despite the applicant’s contentions to the contrary, my
view is that a contextual or purposive approach would be more
appropriate
in this case.  It will allow us to afford as much
protection as we can to permanent same-sex partners who choose not to
“marry”
on the strength of
Gory
, read together
with similar equality cases and legislation.  This will also
allow us to defer to the Legislature as to whether
the correct
approach is to “equalise up” or “equalise down”.
[36]
The applicant, relying on the
cessante ratione legis cessat
ipsa lex
maxim, contended that section 13 of CUA was intended to
cure the constitutional defects brought about by the limited
definition
of “spouse” under section 1(1) of ISA.
The maxim, as already explained, is a tool of statutory
interpretation
and suggests that once the reason for the law ceases,
the law itself ceases too.  According to the applicant, because
CUA
enables same-sex permanent partners to “marry”, there
is no longer a reason for the
Gory
order to exist.
Without deciding whether this tool of statutory interpretation is
appropriate in cases of constitutional interpretation,
it does not
advance the applicant’s case.  A proper reading of
Gory
makes clear that the order sought to remedy the fact that
same-sex permanent partners could not inherit from an intestate
estate
under section 1(1) of ISA.  Whereas in
Fourie
, the
mischief underlying the order was that same-sex permanent partners
could not “marry”.  I am accordingly of
the view
that the reason for
Gory
did not fall away with the enactment
of CUA.
The interpretative approach: section 1(1) of ISA
[37]
An alternative approach that may be adopted is a purely
interpretative approach in terms of which this Court is required to
interpret
section 1(1) of ISA in order to assess whether or not
the respondent is entitled to inherit as the intestate heir of the
deceased
estate.  Section 1(1) of ISA, as amended by the
Gory
reading-in, now reads as follows:
“If 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 [
or partner in a permanent same-sex life
partnership in which the partners have undertaken reciprocal duties
of support
], but not by a descendant, such spouse [
or partner
in a permanent same-sex life partnership in which the partners have
undertaken reciprocal duties of support
] shall inherit the
intestate estate;
(b)
is survived by a descendant, but not by a spouse [
or partner in a
permanent same-sex life partnership in which the partners have
undertaken reciprocal duties of support
], such descendant shall
inherit the intestate estate;
(c)
is survived by a spouse [
or partner in a permanent same-sex life
partnership in which the partners have undertaken reciprocal duties
of support
] as well as a descendant—
(i) such spouse [
or partner in a permanent same-sex life
partnership in which the partners have undertaken reciprocal duties
of support
] shall inherit a child’s share of the intestate
estate or so much of the intestate estate as does not exceed in value
the
amount fixed from time to time by the Minister of Justice by
notice in the
Gazette
, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the
intestate estate;
(d)
is not survived by a spouse [
or partner in a permanent same-sex
life partnership in which the partners have undertaken reciprocal
duties of support
] or descendant, but is survived—
(i) by both his parents, his parents shall inherit the intestate
estate in equal shares; or
(ii) by one of his parents, the surviving parent shall inherit one
half of the intestate estate and the descendants of the deceased

parent the other half, and if there are no such descendants who have
survived the deceased, the surviving parent shall inherit
the
intestate estate; or
(e)
is not survived by a spouse [
or partner in a permanent same-sex
life partnership in which the partners have undertaken reciprocal
duties of support
] or descendant or parent, but is survived—
(i) by—
(aa)
descendants of his deceased mother who are related to the deceased
through her only, as well as by descendants of his deceased
father
who are related to the deceased through him only; or
(bb)
descendants of his deceased parents who are related to the deceased
through both such parents; or
(cc)
any of the descendants mentioned in subparagraph (aa), as well as by
any of the descendants mentioned in subparagraph (bb),
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; or
(ii) only by descendants of one of the deceased parents of the
deceased who are related to the deceased through such parent alone,

such descendants shall inherit the intestate estate;
(f)
is not survived by a spouse [
or partner in a permanent same-sex
life partnership in which the partners have undertaken reciprocal
duties of support
], descendant, parent, or a descendant of a
parent, the other blood relation or blood relations of the deceased
who are related
to him nearest in degree shall inherit the intestate
estate in equal shares.”
[38]
The question that arises is whether CUA has specifically
amended ISA.  It bears repeating that
Gory
stated that
“unless
specifically amended
, section 1(1) will then
also apply to permanent same-sex partners who have undertaken
reciprocal duties of support but who do not
‘marry’ under
any new dispensation”.
[35]
[39]
Based on the presumption that the Legislature does not intend
to alter existing law more than necessary, this Court in
Joseph
[36]
cautioned against inferring that the law has been impliedly
repealed.  The Court pointed out that the common law test is
that implied repeal can be present only where the laws are
irreconcilable.  The applicant was unable to demonstrate how the

position in terms of CUA and the position as a result of the
Gory
order resulted in an irreconcilable conflict.  Furthermore,
considering that CUA was enacted a week after the
Gory
order,
it is highly unlikely, if not impossible, that the Legislature
considered the effect of the
Gory
order and that the enactment
of CUA repealed it.
[40]
In
Gory
, the Court emphasised that its proposed
reading-in would not unnecessarily encroach on the separation of
powers and it was strengthened
by restating the dictum of this Court
in
National Coalition
:
[37]
“
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.”
[38]
The amendment of the
word “spouse” in ISA was nothing more than a “cut
and paste” exercise.  The Legislature
did not, in CUA,
specifically grapple with the issue of whether it was prudent to
limit the right that was extended to same-sex
partners as a
consequence of the
Gory
order.  Therefore I conclude
that, to date, the Legislature never intended to and has not
interfered with ISA.  Accordingly,
it is for the Legislature to
specifically amend the reading-in prescribed by the
Gory
order.
[41]
The second judgment cautions against going beyond remedying
the constitutional wrong – out of deference to the separation
of powers principle.  It points out that this deference should
also be observed when interpreting reading-in orders.
[39]
While I hold no issue with this proposition, this Court’s
reasoning in paragraph 29 of
Gory
cannot be so easily
avoided.  The Court said no more than what it deemed was
necessary to vindicate the equality rights of
same-sex permanent
partners.  Without entering into a protracted excursus on the
distinction between
ratio
and
obiter
statements,
[40]
this Court’s awareness of the imminent
Fourie
deadline
suggests that the paragraph’s inclusion was not only sensible
but also necessary.
[42]
Since I find that paragraph 29 of
Gory
cannot be
avoided, I stand by the interpretation that the enactment of CUA did
not specifically amend section 1(1) of ISA.
The implication
that the reading-in order has survived for almost over a decade is
not contentious and certainly not tantamount
to interpretative
legislating.
Volks
[43]
The applicant contended that this Court’s decision in
Volks
is analogous to the facts before us because both cases
address: (i) the right to claim against the deceased estate; and
(ii)
whether rights conferred on married couples can also be
conferred on unmarried couples.
[44]
The central question
was whether the protection the Maintenance of Surviving Spouses Act
afforded to a “survivor” could
be extended to a surviving
permanent life partner.  The deceased had left a will in terms
of which part of his estate was
bequeathed to his permanent life
partner, Mrs Robinson, with the remainder of estate being bequeathed
to, among others, his children.
[41]
The majority drew strongly on
the fact that Mrs Robinson’s right to claim maintenance would
unduly limit freedom of testation.
Particularly because it
would, by operation of law, create a posthumous duty to maintain
cohabitants when no such right existed
during the lifetime of the
deceased.
[42]
The conclusion of the Court
was that—
“
it
is not unfair to make a distinction between survivors of a marriage
on the one hand, and survivors of a heterosexual cohabitation

relationship on the other.  In the context of the provision for
maintenance of the survivor of a marriage by the estate of
the
deceased, it is entirely appropriate not to impose a duty upon the
estate where none arose by operation of law during the lifetime
of
the deceased.  Such an imposition would be incongruous, unfair,
irrational and untenable.”
[43]
[45]
The appeal was upheld
and this Court did not confirm the order of the High Court which
declared that section 1 of the Maintenance
of the Surviving Spouses
Act was inconsistent with the Constitution.
[46]
In my view,
Volks
concerned the right of a
permanent opposite-sex partner to claim maintenance from a deceased
estate in terms of the Maintenance
of Surviving Spouses Act – a
benefit that is given effect to before succession takes place.
[44]
However, I am not convinced that
Volks
is drawn directly into
question based on the facts and the law in this case.  Volks
is
distinguishable for the following reasons—
(i)
Volks
concerned
a surviving permanent life partner’s right to benefit from
maintenance under section 2(1) of the Maintenance of
Surviving
Spouses Act, whilst the present matter before this Court concerns a
right to benefit in terms of section 1(1) of ISA;
(ii) there was a will in
Volks
,
whereas the deceased in this case died intestate; and
(iii) the
Gory
order
expressly provides for the protection of same-sex permanent partners’
intestate succession rights.  Furthermore,
this case is not
concerned with an equality challenge, but is based on the
interpretation of the
Gory
order
in light of the subsequent enactment of CUA.
[47]
As can be seen, Mrs
Robinson had sought to claim maintenance over and above the benefit
that she was to receive in terms of the
will.  Her claim for
maintenance would proportionally reduce the size of the
beneficiaries’ share and frustrate the
testator’s
wishes.  The majority’s reluctance to grant a right for a
permanent partner to claim maintenance against
a deceased estate was
brought on by the fact that the right to claim maintenance would
never have arisen by operation of law during
the lifetime of the
deceased.  To this effect, Skweyiya J stated:
“
[I]t
is not the under-inclusiveness of section 2(1) which is the cause of
their misery.  The plight of a woman who is the survivor
in a
cohabitation relationship is the result of the absence of any law
that places rights and obligations on people who are partners
within
relationships of this kind
during
their lifetimes
.”
[45]
[48]
Clearly, the case
before us is not a comparable situation.  Conceptually, the law
of intestate succession applies only where
a deceased has not taken
steps to dispose of her property in terms of a will.
[46]
Importantly, the gears of succession
only begin to turn upon the death of one of the parties.  One
cannot place intestate succession
rights of permanent partners on the
same footing as maintenance claims against a deceased estate, because
there is never an obligation
to dispose of one’s estate during
her lifetime.  In contrast, the existence of a maintenance claim
in terms of the Maintenance
of Surviving Spouses Act does not depend
on the existence or absence of a will.  Generally, maintenance
exists in the course
of life and, by virtue of the Maintenance of
Surviving Spouses Act, passes on to the deceased estate as well.
The difference
is not arbitrary: maintenance and intestate succession
are different systems, meant to address different needs and they each
elicit
different considerations.  Unlike
Volks
,
there can be no impinging on the freedom of testation in this case
because there is no testator.
[49]
In
Paixão
,
[47]
the SCA expressed the view that
although the Court in
Volks
held
that no reciprocal duty of support arises by operation of law in the
case of unmarried cohabitants, such duty is not precluded
from being
fixed by agreement.
[48]
The SCA also distinguished the
rationale behind the Maintenance of Surviving Spouses Act
vis a vis
that of the dependents action at
common law, which the SCA stated was
sui generis
(of
its own class).
[49]
The SCA found that section 2(1) of
the Maintenance of Surviving Spouses Act addresses the question of
whether a spousal benefit
arising from a legally recognised marriage
should be extended to a surviving partner of a life partnership.
[50]
On the other hand, the object of the
dependant’s action remedy is to place the dependants of the
deceased to whom the deceased
owed a legally enforceable duty to
support or maintain in the same position as they would have been, as
regards support and maintenance,
had the deceased not been unlawfully
killed by a wrongdoer.
[51]
On this basis, the SCA in
Paixão
distinguished
Volks
and
the dependant’s action was extended to the permanent life
partner in that case.
[50]
Volks
is thus
distinguishable not just from the facts, but from the legal mechanism
being used.
Volks
continues
to apply with full precedential force within the context of
maintenance of surviving spouses.  To say, as the applicant

suggested, that we are called upon to decide whether to apply or to
roll-back on the
Volks
decision,
is to mischaracterise the issue.
[51]
Moreover, and as
discussed above, the
Gory
order
effectively legislated an amendment of section 1(1) of ISA.
Despite having had an opportunity for over 10 years,
the
Legislature has not specifically amended the effect of the
Gory
order.  Hence the position
stands – alongside and notwithstanding
Volks
.
The applicant’s submission that the principle of choice to
“marry” (or conclude a civil union as it were)
is equally
applicable to this case, is unpersuasive.
[52]
The applicant also contended that continuing to enforce
Gory
would have the effect of unfairly discriminating against
opposite-sex permanent partners – since they are not entitled
to
the same benefit.  This contention is neither here nor
there.  To wit, there has never been a constitutional challenge

for the right of opposite sex permanent partners to be included
within the ambit of section 1(1) of ISA.  An actual cause
of
action and a plea of unfair discrimination are thus required before
crossing this bridge.
[52]
[53]
The second judgment suggests that the approach followed above
“avoids [the] confrontation” of
Volks
by: (i)
“interpreting the
Gory
order broadly”; and (ii)
“distinguishing
Volks
on a number of grounds”.
[53]
However, this Court should be reluctant to revisit principles that
are not directly within the purview of the facts of a
case.  The
reasons put forward in the second judgment as to why the judgment of
Volks
cannot stand are stimulating and persuasive.
Nevertheless, for the reasons mentioned above, this is not directly
within the
purview of the facts of this case.  To overturn
Volks
on these facts would be undesirable.  There may be an
appropriate time when this Court is called upon to revisit the
principles
in
Volks
.  Now is not that time.
[54]
The second judgment concludes that “apart from those who
choose to accept [CUA’s] benefits by marriage formalisation,

there is a residual category of unmarried same-sex and heterosexual
partners with reciprocal support duties that are not excluded
on a
literal reading of the section.  They remain entitled to
inherit”.
[54]
I do not agree. Save for the Marriage Act and the Recognition of
Customary Marriages Act,
[55]
section 13(2)(b) of CUA extends the definition of the words “husband,
wife or spouse in any other law, including the common
law” to
include a civil union partner.  Needless to say, there are
statutes in which permanent life partners who have
undertaken a
reciprocal duty of care are considered, for all intents and purposes,
as being husbands, wives, or spouses.
[56]
However, it does not follow that where
Volks
is overturned
(which, as I have stated, is not appropriate on these facts) such
partners are now considered as “husband, wife
or spouse”
on a literal reading of CUA – and remain entitled to inherit.
Conclusion
[55]
For the reasons set out above, I am of the view that the
enactment of CUA, particularly section 13(2)(b), did not specifically
amend
section 1(1) of ISA as was required by
Gory
.  Civil
unions concluded under CUA constitute a new category of beneficiary
for purposes of ISA and are distinguishable from
same-sex permanent
life partnerships.  As a result, same-sex permanent partners
will continue to enjoy intestate succession
rights under section 1(1)
of ISA, as per the
Gory
order, until such time that the
Legislature specifically amends the section.  It is not for this
Court to proscribe protections
it previously extended when there is
no clear legislative indication that the
proscription is
mandated.  To do so would undermine the aspirations of the human
rights culture that we seek to cultivate.
Whether to provide
“equality of the graveyard or the vineyard”
[57]
to permanent same-sex partners, is a matter best left to the
competencies of the Legislature.
Costs
[56]
The applicant contended that the costs should be costs in the
deceased estate.  The respondent submitted that the ordinary
rules relating to costs should apply.  I am of the view that for
costs to come from the deceased estate would be unfairly punitive

towards the successful party.  Both parties made cogent
submissions and the losing party’s argument had substance –

which warranted the applicant’s persistence through to this
Court.  Accordingly, the interests of justice dictate that
each
party should bear their own costs.
Order
[57]
The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
FRONEMAN J:
Introduction
[58]
I have had the privilege of reading the judgment by my
colleague Mbha AJ (first judgment).  I agree with the conclusion
he
reaches.  The reasoning too, is temptingly persuasive.
Regretfully though, not sufficiently so.  We differ on (1)
the
reach of the order
made by this Court in
Gory
and (2) the import of the majority
judgment of this Court in
Volks
.
[59]
As to the reach of
Gory
, I come to the conclusion that
it must be restricted to the discriminatory mischief it was called
upon to remedy, namely to remove
the impediment suffered by permanent
same-sex life partners of not being legally entitled to marry.
Volks
established the general principle that to remove the
impediment to marry for same-sex partners is a legitimate choice for
the Legislature
to make in remedying gender discrimination.  The
logic of these holdings forces one to confront directly the obstacle
that
the principle, as laid down in
Volks
, presents to the
success of the respondent’s claim to inherit from the intestate
estate.  CUA has now removed the impediment
to marry for
same-sex couples.  The discriminatory mischief of
Gory
appears to have been addressed.
[60]
The first judgment avoids this confrontation by first,
interpreting the
Gory
order broadly, as in effect legislating
for the rights of unmarried same-sex partners to intestate succession
and, second, distinguishing
Volks
on a number of grounds.
[58]
It is a tempting path, but in respect of each choice I consider there
to be difficulties.  So this judgment meets
Volks
head-on,
something I regard as inevitable.  And it concludes that
Volks
cannot stand.  That is a huge statement to make and I will
attempt to justify the grounds for doing so as responsibly as
possible, as is required when previous decisions of this Court are
revisited.
[59]
It may be necessary for this Court to consider a legal issue raised
by the facts, even if the parties themselves did not
rely on it, as
long as there is no prejudice involved.
[60]
The reach of Gory
[61]
What discriminatory mischief did
Gory
seek to address?
We need not speculate.  Under the heading “The
unconstitutionality of section 1(1) of the Act”
Van Heerden
AJ, writing for the Court, states:
“
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.  Given the
recent
jurisprudence of South African courts in relation to permanent
same-sex life partnerships, 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.

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 terms 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.”
[61]
[62]
How did the Court see its function in regard to the chosen
remedy of “reading-in”?  Again no speculation is
necessary:
“
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 [L]egislature 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.
”
[62]
[63]
If this was all, there would have been little to quibble
about.  The order would then have to be read in the context of
being
restricted to cure the “existing and historical
unconstitutionality of section 1(1) of the Act”, which lay in
the fact
that same-sex partners “[were] not legally entitled to
marry”.
[63]
[64]
But in between these statements there is another paragraph,
which formed the subject of intense debate during argument:
“
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.  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.”
[64]
[65]
What this paragraph appears to be dealing with is what the
possible consequences would be if the deadline for amending
legislation
following upon this Court’s decision in
Fourie
was not met or, if it was met, to “legislate” for
same-sex couples to enjoy the same status, benefits and
responsibilities
accorded to heterosexual couples.  It is not
clear to me why this was necessary to expound upon if the
constitutional issue
at stake was the constitutionality of the
existing and historic discriminatory mischief of not allowing
same-sex couples the same
benefit of marriage afforded to
heterosexual couples and how to remedy it.
[66]
It does not logically follow that removal of the obstacle to
marry will nevertheless also entail the protection of permanent
same-sex
life partners who have undertaken reciprocal duties of
support but who do not “marry” under any new
dispensation.
That assertion requires further and different
justification, which is not given.  And the further statement
that the reason
for distinguishing between unmarried heterosexual
couples and unmarried same-sex couples should also disappear, is also
not a logical
consequence of the removal of the obstacle to marry.
It is dependent on the prior assertion that unmarried same-sex
couples
who have undertaken reciprocal duties of support are entitled
to continuing protection insofar as intestate succession is concerned

and, implicitly, that it would amount to unfair discrimination to
make a distinction between same-sex and heterosexual couples.

But again the underlying reasoning is absent.
[67]
So it appears that these statements were, first of all, not
necessary for the reasoning on the issue at stake in
Gory
and
were, in any event, not based on any substantive reasoning justifying
the conclusions expressed in them.  That may be
sufficient
reason not to give them the status as a necessary part of
understanding the order made in
Gory
, but there is another.
That reason flows from the separation of powers principle.  When
the Court “legislates”
by a reading-in-remedy it must
tread cautiously.
[65]
[68]
In
Satchwell 1
, Madala J warned against going
beyond
remedying the constitutional wrong in the
impugned provisions:
“
This
Court is not at large to grant any relief under its power to grant
‘appropriate relief’ – it cannot import
matters
that are remote to the case in question – otherwise it will be
intruding too far into the legislative sphere.
The intended
accommodation of heterosexuals cannot be introduced via the backdoor
into this case.”
[66]
[69]
A similar caution applies to
interpreting the order in
Gory
as “legislating” for a situation beyond the
constitutional wrong in the case, namely the obstacle to marriage for
same-sex couples.  The issue of what should happen when that
obstacle is removed was not in issue in
Gory
,
nor was the issue of differentiation or discrimination between
unmarried same-sex and heterosexual couples.
[70]
The
Gory
order thus relates to same-sex partners who
“are not legally entitled to marry”.
[67]
Even if this is not the only possible interpretation it is
nevertheless a reasonable one.  The caution against
“legislating”
too widely when fashioning a reading-in
remedy implies that the more restrictive of alternative reasonable
interpretations of the
Gory
order should carry the day.
[71]
CUA removed the impediment to “marry” for same-sex
couples.  If that was a legitimate choice for the Legislature
to
make, then those same-sex life partners with reciprocal duties of
support who did not take advantage of the removal of the obstacle
to
marriage would seemingly still be excluded from intestate
inheritance.
[72]
This is where the significance of
Volks
comes to the
fore.
The import of
Volks
[73]
The first judgment states that the central question in
Volks
was whether the protection which the Maintenance of Surviving Spouses
Act afforded to a “survivor” in terms of that
Act could
be extended to a surviving permanent life partner.
[68]
It then goes on:
“
Volks
concerned the right of a permanent opposite-sex
partner to claim maintenance from a deceased estate in terms of the
Maintenance
of Surviving Spouses Act – a benefit that is given
effect to before succession takes place.  However, I am not
convinced
that
Volks
is drawn into question based on the facts
and the law in this case.
Volks
is distinguishable for
the following reasons—
(i)
Volks
concerned a surviving permanent life partner’s
right to benefit from maintenance under section 1(1) of the
Maintenance of
Surviving Spouses Act; whilst the matter before the
court at present concerns a right to benefit in terms of section 1(1)
of ISA;
(ii)
there was a will in
Volks
, whereas the deceased in this case
died intestate, and;
(iii)
the
Gory
order expressly provides for the protection of
same-sex permanent partners’ intestate succession rights.
Furthermore,
this case is not concerned with an equality challenge,
but is based on the interpretation of the
Gory
order in light
of the subsequent enactment of CUA.”
[74]
In view of the fact that the
Gory
order cannot be read
as a general “legislative” kind of protection for
same-sex partners’ intestate succession
rights, the last ground
for distinguishing
Volks
is not open to me.  It is
tempting to follow the first judgment in accepting the difference
between maintenance and intestate
succession as sufficient reason for
distinguishing
Volks
, but I am not sure that the distinction
withstands critical scrutiny.
[75]
The majority in
Volks
relied on a general principle:
“From this recognition, it follows that the law may distinguish
between married people and unmarried people.  Indeed,
this Court
in
Fraser
[69]
noted:
‘In
the context of certain laws there would often be some historical and
logical justification for discriminating between
married and
unmarried persons and the protection of the institution of marriage
is a legitimate area for the law to concern itself
with.’
The law may in appropriate circumstances accord benefits to married
people which it does not accord to unmarried people.”
[70]
[76]
Implicit in the acceptance of the principle that it is a
legitimate choice for the Legislature to accord benefits to married
people
in appropriate circumstances, is its underlying corollary:
that those who wish to taste the fruits of the benefits have the
choice
to marry.  If they do not, they cannot complain.
[71]
[77]
It seems to me that the difference between the subject-matter
of intestate succession and post-death maintenance of spouses does

not adequately explain why this principle of legitimate legislative
choice, preferring the formality of marriage, should apply
in one
case but not the other.  Both are predicated on the existence of
a reciprocal duty of support.  In
Volks
a crucial point
of distinction was that marriage created a legal duty of support,
unlike the possible factual duty in the unmarried
relationship at
stake there.  In
Gory
the existence of a factual duty of
support was the justification for removing the formal impediment of
marriage in order to attain
the blessing of legal validation of that
factual duty.
[78]
So the crucial question to ask is this: if our law recognises,
as
Volks
does, that it is a legitimate choice for the
Legislature to accord benefits to married people, which it does not
accord to unmarried
people, why should the amended section 13(2)(b)
of CUA
[72]
not be read as making that choice?  If the
Gory
order
does not amount to a “legislative” exception, created by
this Court as a permanent default position that survives
the
amendment, is there any way out?
Beyond Volks
[79]
Why, though, should we even be talking of a way out?
What is it that compelled this Court to pen paragraph 29 in
Gory
,
and what compels us to want to uphold the propositions made therein?
[80]
The majority judgment in
Volks
has been subjected to
academic criticism.
[73]
For the present it is necessary to consider only two main related
points of that criticism.  The first is that
Volks
represents one of the instances where this Court has “contrive[d]
to avoid the issue of discrimination against the unmarried”.
[74]
The second, related point is that it was wrong in excluding a factual
reciprocal duty of support between unmarried couples
as worthy of
protection, as opposed to the immediate legal duty of reciprocal
support created by marriage.
[75]
These points of criticism are two sides of the same coin.
[81]
The Bill of Rights prohibits unfair discrimination on the
ground of marital status.
[76]
The jurisprudence of this Court has given recognition to this in two
different ways that are not always easily reconcilable
with each
other.  The one, as exemplified by the initial reasoning in
Gory
, has been to characterise the unfair sting in the
discrimination to lie in the lack of entitlement to marry and to
remedy it by
removing the disentitlement.
[77]
The other has been to recognise the many forms of co-habitation and
reciprocal duties of support outside of formal marriage

institutions.
[78]
On the surface this seemed to be in line with a change from a formal
approach to life partnerships to a functional one, with
the focus “on
the substance of different relationships and the needs of the parties
to them, rather than their form or official
status”.
[79]
[82]
These two strands of the Court’s jurisprudence are in
some tension with each other.  On the one hand the jurisprudence

recognises that discrimination based on marital status exists between
married and unmarried couples, be they same-sex couples who
could not
marry or heterosexual couples whose “marriage” was not
legally recognised.  In general, however, critics
say, this is
remedied by allowing, and requiring, unmarried couples to formalise
their unmarried status by marrying in the formal
legal manner.  This
“marriage-centric” approach
[80]
is the “bad” part, at least for some critics.  It is
bad because the reason for being “marriage-centric”
is
unarticulated, and the unarticulated preference lies in moral choices
not countenanced by the Constitution.
[81]
The decision in
Volks
is said to be an example of this
unreasoned moral preference.
[83]
Before dealing further with this aspect it is necessary to
refer to the other main point of criticism, namely that the majority
in
Volks
failed to give proper recognition to the factual
reality of reciprocal support between the unmarried partners.
Had proper
recognition been given to that, the rationale for
preferring the marriage validated legal duty of support would have
been severely
undermined.
[82]
It is a feature of this Court’s jurisprudence that the
existence of factual reciprocal duties of support in unmarried

relationships underlies the reasoning that it is unfair to
discriminate between married legal duties of support and unmarried
factual duties of support.  Formally they may be different, but
functionally they are similar.
[83]
[84]
These criticisms of
Volks
– of being
“marriage-centric”, and disregarding this Court’s
previous acceptance of factually-existing
reciprocal duties of
support as the crucial functional feature of discrimination based on
marital status – suggest an answer
to the question posed
earlier; why do we seek a way out from
Volks
?  We seek a
way out, even though we do not articulate it in that way, because,
first, the criticisms appear to be valid and,
second,
Volks
reflected views of its time, not inclusive enough in the present
social context.  It is either time to articulate the underlying

preference for equalisation by way of the formalisation of marriage
route, or to recognise that its justification is wanting.
[85]
The by now famous paragraph 29 of
Gory
, suggesting that
there is no reason for both same-sex and heterosexual unmarried
partners who owed reciprocal duties of support
not to inherit from
the intestate estate, is also better understood in this light.
The paragraph itself does not articulate
the premises for the
propositions it makes, and we need to recognise that too.  But
we can flesh out the premises.  And
I suggest that part of them
is this.  The initial obvious way to change our society’s
views on unmarried partnerships
was to show that they exhibited the
same characteristics as married partnerships.  Central to this
was the existence of reciprocal
duties of support between partners in
both married and unmarried relationships.  The most comfortable
way to ease the road
to equality was to remove the impediment of
formal marriage to previous unmarried partners.  But that was
only a pragmatic
start on the road we need to travel.  The logic
of similar reciprocal duties of support does not necessitate
equalisation
in that particular way.  To the contrary, it
creates a new form of unfair discrimination against unmarried couples
who do
not wish to marry.  The same reciprocal duties of support
remain, but some are protected, others still not.  That residual

unfair discrimination cannot be allowed to stand.
[86]
When we depart from a previous decision we must be satisfied
that it is clearly wrong.  With hindsight I think we can now
acknowledge
that it is clearly wrong to attempt to eradicate unfair
discrimination by creating another form of unfair discrimination.

Because it is hindsight that helps us to this conclusion we remain
respectful of the earlier start along the road to eradicate

discrimination in our society. But the application of our
Constitution to changing circumstances can never be static.  Our

law of precedent recognises the possibility of change and I have
attempted to justify this change within those substantive
parameters.
[84]
Conclusion
[87]
Unshackled from
Volks
, section 13(2)(b) of CUA must be
interpreted in a manner that best conforms and least infringes the
fundamental right to equality
in the Bill of Rights.  Apart from
those who chose to accept its benefits by marriage formalisation,
there remains a residual
category of unmarried same-sex and
heterosexual partners with reciprocal support duties that are not
excluded on a literal reading
of the section.  They remain
entitled to inherit from the intestate estate.  The respondent
falls within that category.
For that reason I support the order
made in the first judgment.
For the Applicants:
J G Bergenthuin SC and B Bergenthuin instructed by Els Attorneys
For the First
Respondent: W Trengove SC and L Kellermann instructed by Ross &
Jacobz Inc
For the Amicus
Curiae: K Pillay SC and U Dayanand-Jugroop instructed by Legal
Resources Centre
[1]
Section 167(6) of the Constitution, in relevant part, provides:
“National legislation or the rules of the Constitutional Court
must allow a person, when it is in the interests of justice
and with
leave of the Constitutional Court—
. . .
(b) to appeal directly to the Constitutional Court from any other
court.”
[2]
This rule sets out the procedure to be followed in an application
for leave to appeal to this Court.  The appeal must concern
a
decision on a constitutional matter, not including an order of
constitutional invalidity in terms of section 172(2)(a) of the

Constitution, which has been given by any other court.
[3]
The second respondent is the Master of the High Court, Pretoria.
The Master did not participate in these proceedings.
For
simplicity’s sake, the first respondent will be referred to
throughout the judgment as the respondent.
[4]
Gory v Kolver NO
[2006] ZACC 20
;
2007 (4) SA 97
(CC);
2007
(3) BCLR 249
(CC).  The order, in relevant part, reads as
follows:
“
(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’.”
[5]
81 of 1987.  Prior to reading-in following the
Gory
order,
section 1(1)
of ISA read as follows:
“(1) If 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;
(b) is survived by a descendant, but not by a spouse, such
descendant shall inherit the intestate estate;
(c) is survived by a spouse as well as a descendant—
(i) such spouse shall inherit a child’s share of the intestate
estate or so much of the intestate estate as does not exceed
in
value the amount fixed from time to time by the Minister of Justice
by notice in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the
intestate estate;
(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; or
(ii) by one of his parents, the surviving parent shall inherit one
half of the intestate estate and the descendants of the deceased

parent the other half, and if there are no such descendants who have
survived the deceased, the surviving parent shall inherit
the
intestate estate; or
(e) is not survived by a spouse or descendant or parent, but is
survived—
(i) by—
(aa)
descendants of his deceased mother who are related to the deceased
through her only, as well as by descendants of his deceased
father
who are related to the deceased through him only; or
(bb)
descendants of his deceased parents who are related to the deceased
through both such parents; or
(cc)
any of the descendants mentioned in subparagraph (aa), as well as by
any of the descendants mentioned in subparagraph (bb),
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; or
(ii) only by descendants of one of the deceased parents of the
deceased who are related to the deceased through such parent alone,

such descendants shall inherit the intestate estate;
(f) is not survived by a spouse, descendant, parent, or a descendant
of a parent, the other blood relation or blood relations
of the
deceased who are related to him nearest in degree shall inherit the
intestate estate in equal shares.”
[6]
17 of 2006.
[7]
See
section 4
(solemnisation of civil union),
section 8
(requirements for solemnisation and registration of civil union) and
section 12
(registration of civil union).
[8]
25 of 1961.
[9]
Gory
above n 4 at para 43.
[10]
Id at para 66.
[11]
See
Turnbull-Jackson v Hibiscus Coast Municipality
[2014]
ZACC 24
;
2014 (6) SA 592
(CC);
2014 (11) BCLR 1310
(CC) at para 54.
[12]
Minister of Home Affairs v Fourie
[2005]
ZACC 19
;
2006 (1) SA 524
(CC); 2006 (3) BCLR (CC) (
Fourie
)
at para 162 (1)(c)(i) and (ii), where this Court declared the common
law and statutory definitions of marriage invalid but suspended
the
declaration of invalidity for 12 months in order to allow Parliament
to remedy the defect.  If Parliament failed to
do so, this
Court ordered that words would be read into the definitions to allow
for same sex marriages.
[13]
Section 13(2)(b)
of CUA reads as follows:
“13. Legal consequences of civil union
. . .
(2) With the exception of the Marriage Act and the Customary
Marriages Act, any reference to—
. . .
(b) husband, wife or spouse in any other law, including the common
law, includes a civil union partner.”
[14]
Volks NO v Robinson
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC)
(
Volks
).
[15]
Gory
above n 4 at para 66(f)(2).
[16]
Paulsen v Slip Knot Investments 777 (Pty) Ltd
[2015] ZACC 5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at para 29.
[17]
Id.
[18]
Gory
above n 4 at paras 20-31.
[19]
Id at para 28.
[20]
Id at para 29.
[21]
Id at para 43.
[22]
Id at para 28.
[23]
Black
Black’s Law Dictionary
6 ed (West Publishing Co,
St. Paul MN 1991) at 562.
[24]
Gory
above n 4 at para 19.
[25]
The Starke sisters were intervening parties in
Gory
above n 4
at para 8.
[26]
See
Turnbull-Jackson
above n 11 at paras 61-71 for a powerful
excursus on the distinction between
ratio
and
obiter
remarks.  At para 61, Madlanga J observed:
“Literally,
obiter dicta
are things said by the way or
in passing by a court.  They are not pivotal to the
determination of the issue or issues at
hand and are not binding
precedent.  They are to be contrasted with the
ratio
decidendi
of a judgment, which is binding.”
[27]
From the internal question paper [No 3-2006] published by the
National Assembly on its website and available at
http://www.parliament.gov.za/live/commonrepository/Processed/20140411/52830_1.pdf
(accessed on 30 September 2016), it appears to be quite unlikely
that the Legislature contemplated the
Gory
order when it
enacted CUA (in this regard see the question 133 of the internal
question paper which was circulated on 17 February
2006, where
the Legislature considered the order and deadline imposed by this
Court in
Fourie
– in particular what action the
Department of Home Affairs would take pursuant to
Fourie
).
No internal question papers of the Legislature after the
abovementioned internal question paper were published until
19
December 2006, which was after CUA was enacted.
Interestingly, the
Civil Union Bill (Bill), which was published in September 2006 for
comment, made provision for registered and
unregistered domestic
partnerships.  Whilst section 32 provided that a partner in a
registered domestic partnership would
constitute a “spouse”
for purposes of section 1(1) of ISA; section 43 of the Bill provided
for a court procedure
to be followed by a partner in an unregistered
domestic partnership for purposes of intestate succession.
Nevertheless,
CUA makes no mention of an amendment to ISA and does
not contemplate domestic partners at all.
[28]
Opposite-sex permanent partners were not included within the ambit
of the
Gory
order and, as ISA currently stands, cannot
inherit from a partner who dies intestate.
[29]
Satchwell v President of the Republic of South Africa
[2002]
ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC) (
Satchwell
1
).
[30]
88 of 1989.
[31]
Satchwell 1
above n 29 at para 37.
[32]
Id at para 37.
[33]
See the definition of “partner” in section 1 of the
Judge’s Remuneration and Conditions of Employment Act 47
of
2001.  See also the effect of the reading-in order in
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC)
(
National Coalition
) at para 98 on the definition of “spouse”
in section 1 of the Immigration Act 13 of 2002 (previously the
Aliens Control
Act 96 of 1991).
[34]
Gory
above n 4 at paras 22, 25 and 29.
[35]
Gory
above n 4 at para 29.
[36]
Joseph v City of Johannesburg
[2009] ZACC 30; 2010 (4) SA 55
(CC); 2010 (3) BCLR 212 (CC).
[37]
National Coalition
above n 33 at para 76.
[38]
Gory
above n 4 at para 30.
[39]
Second judgment at [67] to [70].
[40]
See above n 26.
[41]
Volks
above n 14 at para 7.
[42]
Id at para 57.
[43]
Id at para 60.
[44]
Id at para 39.
[45]
Id at para 65.
[46]
Section 4(b) of ISA explains that “‘intestate estate’
includes any part of an estate which does not devolve
by virtue of a
will”.
[47]
Paixão v Road Accident Fund
[2012] ZASCA 130; 2012 (6)
SA 377 (SCA).
[48]
Id at para 26.
[49]
Id.
[50]
Id.
[51]
Id.
[52]
See
Christian Lawyers Association v Minister of Health
2005
(1) SA 509
(T) at 521F.
[53]
Second judgment at [60].
[54]
Second judgment at [87].
[55]
120 of 1998.
[56]
See above n 33.
[57]
Fourie
above n 12 at para 149.
[58]
First judgment at [43] to [54].
[59]
Turnbull-Jackson
above n 11 at paras 54-6.
[60]
CUSA v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA
204
(CC);
2009 (1) BCLR 1
(CC) at para 68.
[61]
Gory
above n 4 at para 19.
[62]
Id at para 31.
[63]
The same approach was adopted in the High Court:
Gory v Kolver NO
[2006] ZAGPHC 28
;
2006 (7) BCLR 775
(T) at paras 19 and 21.
[64]
Gory
above n 4 at para 29.  The paragraph number has
entered academic writing; see Kruuse “‘Here’s to
you, Mrs
Robinson’: Peculiarities and Paragraph 29 in
Determining the Treatment of Domestic Partnerships” (2009) 25
SAJHR
380.
[65]
While a fluid mechanism is encouraged and indeed necessary in a
transformative sense in order to facilitate dialogue with the
State,
the Court must always be cautious to interfere with legislation
through reading-in.  See Ngcobo J in
Director of Public
Prosecutions Transvaal v Minister for Justice and Constitutional
Development
[2009] ZACC 8
;
2009 (4) SA 222
(CC),
2009 (7) BCLR
637
(CC) at para 183;
De Lange v Smuts NO
[1998] ZACC 6
;
1998
(3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 60; and
Minister
of Health v Treatment Action Campaign (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC) (
TAC
) at paras
37-8. In
TAC
at para 38, this Court noted that “[t]he
Constitution contemplates rather a restrained and focused role for
the courts,
namely, to require the state to take measures to meet
its constitutional obligations. . . .  In this way the
judicial, legislative
and executive functions achieve appropriate
constitutional balance”.  In
Ferreira v Levin NO;
Vryenhoek v Powell NO
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996
(1) BCLR 1
(CC) at para 183, Chaskalson P stated that “[i]t is
important that we bear in mind that there are functions that are
properly
the concern of the courts and others that are properly the
concern of the legislature”. See also
National Coalition
above n 33 at paras 75, 66-88.  In
National Coalition
above n33 at para 75, this Court stated that “[i]n
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.”
Much has been written about the role of the Constitutional

Court in facilitating transformative measures through a fluid notion
of separation of powers.  See Liebenberg
A Transformative
Jurisprudence on Socio-Economic Rights
(Juta & Co Ltd, Cape
Town 2010) at 66-75; Calland and Taylor “Parliament and the
Socio-economic Imperative – What
is the Role of the National
Legislature?” (1997) 1
Law Democracy & Development
193; Moseneke “Transformative Adjudication”
(2002) 18
SAJHR
309
at 316; Gloppen
South Africa: The Battle Over
the Constitution
(Dartmouth Publishing Co Ltd, Dartmouth 1997)
218-26; and Davis “The Relationship Between Courts and the
Other Arms of
Government in Promoting and Protecting Socio-Economic
Rights in South Africa: What About Separation of Powers?”
(2012)
15
PER/PELJ
7.  Our jurisprudence has noted the
careful balance that must be struck between ensuring an adequate
diffusion of power
from any one source of the branches of state and
– while allowing for overlap – avoiding a transgression
of the mutually-defined
boundaries between each.
[66]
Satchwell 1
above n 29 at para 33.
[67]
The words used in
Gory
above n 4 at para 19.
[68]
First judgment at [44].
[69]
Fraser
v Children
’
s Court, Pretoria North
[1997] ZACC 1; 1997 (2) SA 218 (CC); 1996 (8) BCLR 1085 (CC).
[70]
Volks
above n 14 at para 54.
[71]
This point is made explicitly in the judgment of Ngcobo J in
Volks
above n 14, but it also forms part of the majority judgment of
Skweyiya J at para 55:
“Mrs Robinson never married the late Mr Shandling.  There
is a fundamental difference between her position and spouses
or
survivors who are predeceased by their husbands.  Her
relationship with Mr Shandling is one in which each was free to

continue or not, and from which each was free to withdraw at will,
without obligation and without legal or other formalities…”
[72]
Section 13(2)(b) provides that “with exception of the
Marriages Act or Customary Marriages Act any reference to . . .
husband, wife or spouse in any other law, including the common law,
includes a civil union partner.”
[73]
Wood Bodley “Intestate Succession and Gay and Lesbian Couples”
(2008) 125
SALJ
46
; De Vos “Still out in the Cold?
The Domestic Partnerships Bill and the (Non)protection of
Marginalised Woman”
(sic) in Sloth-Nielson and Du Toit (eds)
Trials & Tribulations, Trends & Triumphs: Developments in
International, African and South African Child and Family Law
(Juta
& Co Ltd, Cape Town 2008) 129; De Vos and Barnard “Same-sex
Marriage, Civil Unions and Domestic Partnerships in
South Africa:
Critical Reflections on an Ongoing Saga” (2007) 124
SALJ
795; Picarra “
Gory v Kolver NO
2007 (4) SA 97
(CC)”
(2007) 23
SAJHR
563
; Bonthuys “Race and Gender in the
Civil Union Act”
(2007) 23
SAJHR
526
; Schäfer
“Marriage and Marriage-like Relationships: Constructing a New
Hierarchy of Life Partnerships”
(2006) 123
SALJ
626
;
Lind “Domestic Partnerships and Marital Status Discrimination”
(2005)
Acta Juridica
108
; Wildenboer “Marrying Domestic
Partnerships and the Constitution: A Discussion of
Volks NO v
Robinson
2005 5 BCLR 446
(CC)” (2005) 20
SA Public Law
459.
[74]
Meyerson “Who’s In and Who’s Out?  Inclusion
and Exclusion in the Family Law Jurisprudence of the Constitutional

Court of South Africa” (2010) 3
Constitutional Court Review
295 at 297.
[75]
Smith “Rethinking
Volks v Robinson
: The Implications of
Applying a ‘Contextualised Choice Model’ to Prospective
South African Domestic Partnerships
Legislation” (2010) 13
PER/PELJ
238 at 247-57.
[76]
Section 9(3) reads:
“The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race,

gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,

belief, culture, language and birth.”
[77]
Daniels v Campbell NO
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC);
Satchwell v President of Republic of
South Africa
[2003] ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR
1
(CC) at paras 10, 16 and 22;
Dawood v Minister of Home Affairs;
Shalabi v Minister of Home Affairs; Thomas v Minister of Home
Affairs
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 37;
National Coalition
above n 33 at para 47.
[78]
Consider for example
National Coalition
id at para 47.
[79]
Meyerson above n 74 at 295.
[80]
I borrow the term from Meyerson id at 298.
[81]
Id:
“The Court makes no attempt to explain the reasoning behind
this concession, which only makes sense on the supposition
that the
Court regards marriage in terms of religious law as morally superior
to other kinds of informal partnerships: religious
marriage, it
appears, is better than no marriage.  It seems that it is this
unarticulated moralistic belief that leads the
Court to resort to a
one-off expansion of the concept of ‘marriage’ beyond
the
de jure
concept so as to favour religious unions.  I
will argue that while it is desirable to extend the protections of
marriage
more generously, to do so in favour of only religious
unions is unprincipled.  Furthermore, the Court’s special
solicitude
towards religious unions serves to aggravate the
unfairness of the Court’s moralistic and exclusionary approach
to other
functionally equivalent relationships.”
[82]
Smith “Rethinking
Volks v Robinson
: The Implications of
Applying a ‘Contextualised Choice Model’ to Prospective
South African Domestic Partnerships
Legislation” (2010) 13
PER/PELJ
238 at 247-257.  Courts in South Africa have
extended recognition of a common law duty of support based on
factual existence
in a long line of cases.  In
Union
Government v Warneke
1911 AD 657
(
Warneke
) the action was
extended so as to give an action to a husband who had suffered
patrimonial loss through the death of his wife.
In
Abbott v
Bergman
1922 AD 53
the principle laid down in
Warneke
was
applied to enable a husband to sue for patrimonial loss sustained by
him through non-fatal injury to his wife.  In
Santam Beperk
v Henery
[1999] ZASCA 5
;
1999 (3) SA 421
(SCA) the action was
extended to cover a divorced woman entitled to maintenance from the
deceased in terms of an order of court
granted in terms of
section
7(2)
of the
Divorce Act 70 of 1979
.  A contractual right to
support arising out of a marriage in terms of Islamic law was,
within defined parameters, recognised
for purposes of the
dependant’s action in
Amod v Multilateral Motor Vehicle
Accidents Fund (Commission for Gender Equality Intervening)
[1999] ZASCA 76
;
1999 (4) SA 1319
(SCA).  In
Paixão
above n 47 it was held that the dependants’ action is
to be extended to unmarried persons in heterosexual relationships

who have established a contractual reciprocal duty of support.
[83]
Consider for example
Satchwell 1
above n 29 at para 23;
Fourie
above n 12 at para 54.
[84]
See
Turnbull-Jackson
above n 11 at para 54.  See also
Kruuse above n 64 at 386; Rycroft “The Doctrine of Stare
Decisis in Constitutional
Court Cases”
(1995) 11
SAJHR
587
; Devenish “The Doctrine of Precedent in South Africa”
(2007) 28
Obiter
1.