The applicant sought leave to appeal directly to the Constitutional Court in terms of section 167(6)(b) of the Constitution, against an order handed down by the Honourable Muller AJ in the Gauteng Division of the High Court, Pretoria.
The principle issue before the High Court was the question of whether the respondent, who had lived with Mr Cornelius Daniel Laubscher (“deceased”) in a permanent same-sex partnership since 2003 until his passing, is entitled to inherit from the intestate estate of the deceased.
It is noteworthy that the deceased and the respondent had never solemnised nor registered their partnership, but had undertaken reciprocal duties of support. At the time of the deceased’s death, the deceased had no descendants or living parents. The applicant, the deceased’s brother, is the only living child from their parents.
This issue necessitated consideration of the case of Gory v Kolver NO  ZACC 20 (“Gory”), section 1(1) of the Intestate Succession Act and the Civil Union Act. In this regard, the Civil Union Act makes provision for the registration and solemnisation of civil unions between same-sex couples.
In Gory the Constitutional Court held that section 1(1) of the Intestate Succession Act was unconstitutional and invalid to the extent that the following words had been omitted from the definition of “spouse”: “or partner in a permanent same-sex partnership in which the partners have undertaken reciprocal duties of support”. Accordingly, those words there then read-in retrospectively with effect from 27 April 1994. It is pertinent to point out that at the time that Gory was handed down, the Civil Union Act had not yet come into operation.
The High Court was of the view that it could not deviate from a reading-in of those words owing to the principle of stare decisis and granted an order declaring the respondent the only intestate heir to the deceased’s estate.
The applicant argued that the Civil Union Act’s commencement meant that only same-sex partners who have solemnised and registered a civil union in terms of said Act would be able to inherit the intestate estate of a partner, and as such, respondent is not a “spouse” as contemplated in section 1(1)(a) of Intestate Succession Act. The applicant also argued that Gory was an interim measure only until the legislature had rectified the inability of permanent same-sex partners to enter into legally recognised unions. The operation of the Civil Union Act rectified this position, since same-sex partners who enter into civil unions in terms of the Civil Union Act would now automatically be included within the definition of “spouse”.
Furthermore, the applicant referred to the Constitutional Court’s judgment in the case of Volks NO v Robinson  ZACC 2 (“Volks”) in support of his contention that permanent same-sex partners have a choice to enter into civil unions and are afforded the same legal protection as opposite-sex partners. Accordingly, enforcing Gory when the same protection does not extend to permanent opposite-sex partners, would be unfairly discriminatory.
On the other hand, the respondent argued that Gory was not an interim remedy, and the amendment endures indefinitely, until such time as the legislature amends or repeals it, a decision the Constitutional Court left in the hands of the legislature. In addition, the respondent was of the view that the Civil Union Act did not repeal Gory. The purpose of Gory was to make same-sex permanent partners eligible to inherit from one another intestate despite not being married.
In order to determine whether the respondent qualifies as an intestate successor, the constitutional Court identified 3 points for consideration, namely:
- Whether the remedy in Gory was an interim measure?
- The interplay between Gory and the Civil Union Act and whether the Civil Union Act specifically amended the Intestate Succession Act? and
- Whether the principles of Volks are applicable to this matter?
With regard to the first issue, the Constitutional Court found that the Gory remedy was not interim and that the Constitutional “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”.”
The Constitutional Court adopted a twofold approach in dealing with the second issue. Firstly, a contextual assessment of whether the Civil Union Act rectified the situation Gory sought to address and, secondly, an interpretative assessment of section 1(1) of the Intestate Succession Act (as amended by Gory). With regard to the first leg, the Constitutional Court, in deciding that the reason for Gory did not fall away with the enactment of Civil Union Act, stated as follows:
“I agree that an inequality may exist between opposite-sex permanent partners and their same-sex counterparts by virtue of the Gory order. 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. …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.“
With regard to the second leg, the Constitutional Court has previously cautioned against inferring that law has been impliedly repealed. To this end, the common law test is that only where laws are irreconcilable, can an implied repeal exist. In this matter, the Constitutional Court was of the view that the applicant had not sufficiently demonstrated how the two positions of Gory and the Civil Union Act were irreconcilable. Accordingly, the Civil Union Act did not specifically amend the Intestate Succession Act.
Finally, the Constitutional Court was not convinced that the Volks case was applicable to this matter for, inter alia, the reason that the Volks case was concerned with testate succession, a surviving permanent life partner’s right to benefit from maintenance and from the legal mechanisms used.
Accordingly, the Constitutional Court held as follows:
“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” to permanent same-sex partners, is a matter best left to the competencies of the Legislature.”
The appeal was dismissed.
Same-sex permanent partners will continue to enjoy intestate succession rights under section 1(1) of Intestate Succession Act, until such time as the Legislature specifically amends the section.