Laubscher N.O. v Duplan and Another

Cornelius Daniel Laubscher (deceased) and Eric Jean Spiridion Duplan (first respondent) lived together in a permanent same-sex partnership from 2003 until the deceased's death on 13 February 2015. During this time, they undertook reciprocal duties of support. Their partnership was neither solemnised nor registered in terms of the Civil Union Act (CUA). The deceased died intestate, leaving no descendants or adopted children. His parents had predeceased him. The applicant, Rasmus Elardus Erasmus Laubscher N.O., is the executor of the deceased estate and the deceased's only surviving sibling. A dispute arose as to whether the respondent was entitled to inherit the intestate estate under section 1(1) of the Intestate Succession Act (ISA), as amended by the reading-in order in Gory v Kolver NO 2007 (4) SA 97 (CC), or whether the enactment of the Civil Union Act had removed such entitlement.

• Whether the reading-in remedy in Gory v Kolver NO was an interim measure that expired when the Civil Union Act came into force
• Whether the Civil Union Act specifically amended section 1(1) of the Intestate Succession Act to repeal the Gory order
• The interplay between the Gory reading-in order and the Civil Union Act
• Whether the principles in Volks NO v Robinson are applicable to same-sex permanent partners who have not formalised their union under the Civil Union Act
• Whether same-sex permanent partners who have not registered a civil union under the Civil Union Act are entitled to inherit from an intestate estate

1. Leave to appeal is granted. 2. The appeal is dismissed. The respondent was entitled to inherit as the intestate heir of the deceased estate.

The reading-in order in Gory v Kolver NO, which amended section 1(1) of the Intestate Succession Act to include permanent same-sex partners who have undertaken reciprocal duties of support, remains operative until specifically amended by Parliament. The Civil Union Act did not specifically amend section 1(1) of ISA. The general definition of "spouse" in section 13(2)(b) of CUA created an additional category of beneficiaries (registered civil union partners) but did not repeal the Gory order. Same-sex permanent partners who have undertaken reciprocal duties of support but have not registered a civil union under CUA remain entitled to inherit from intestate estates under section 1(1) of ISA as amended by Gory. A reading-in order by the Constitutional Court is not automatically repealed by subsequent legislation unless that legislation specifically addresses and amends the provision that was the subject of the reading-in remedy.

Majority judgment: The Court noted (obiter) that the Gory reading-in may lead to discrimination against unmarried heterosexual couples, but emphasized that this issue would require an actual constitutional challenge and plea of unfair discrimination to be properly addressed. The Legislature is competent to adopt either a generous or restrictive approach to its recognition of permanent relationships, and the choice of whether to "equalise up" (extend benefits to heterosexual permanent partners) or "equalise down" (remove benefits from same-sex permanent partners) is best left to Parliament. The Court also noted that Volks may need to be revisited in an appropriate case, but that this was not that case. Froneman J's concurring judgment: Froneman J stated (as part of his reasoning but potentially obiter to the main holding) that Volks NO v Robinson was clearly wrong and should be departed from. The decision created unfair discrimination by preferring a "marriage-centric" approach without adequate justification. The functional similarity of reciprocal duties of support in married and unmarried relationships requires equal protection regardless of formalization. The Constitution's prohibition on unfair discrimination based on marital status should be interpreted to protect factual reciprocal duties of support, not just legal duties arising from formalized marriage. Courts should move beyond requiring formalization of marriage as the sole route to equality, as this approach itself creates new forms of unfair discrimination.

This case clarified the continuing operation of the Gory reading-in order after enactment of the Civil Union Act. It established that same-sex permanent partners who have undertaken reciprocal duties of support retain intestate succession rights under section 1(1) of ISA even if they have not registered a civil union under CUA. The majority judgment confirmed that a reading-in order by the Constitutional Court endures until specifically amended by Parliament, and that general legislative amendments (such as CUA's section 13(2)(b)) do not constitute specific amendment. The concurring judgment by Froneman J represents a significant critique of Volks NO v Robinson and advocates for broader recognition of factual reciprocal duties of support between unmarried partners (both same-sex and heterosexual) as deserving equal protection under equality jurisprudence. The case demonstrates the Constitutional Court's approach to balancing separation of powers concerns with the protection of equality rights, and the evolution of constitutional interpretation to address changing social contexts regarding family relationships.