Gory v Kolver NO and Others

Mark Gory and the late Henry Harrison Brooks were partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support. When Brooks died intestate on 30 April 2005, his parents nominated an executor and claimed to be his intestate heirs in terms of section 1(1) of the Intestate Succession Act 81 of 1987. Gory claimed to be the sole intestate heir, but section 1(1) only recognized heterosexual spouses, not permanent same-sex life partners. Gory challenged the constitutional validity of section 1(1). The Pretoria High Court declared section 1(1) unconstitutional to the extent it excluded permanent same-sex life partners and ordered reading-in of words to include such partners. The High Court also made various ancillary orders including removing the executor, setting aside a property sale, ordering return of movables, and costs orders. The matter came to the Constitutional Court for confirmation of the declaration of invalidity.

• Whether section 1(1) of the Intestate Succession Act 81 of 1987 is unconstitutional to the extent it confers rights of intestate succession on heterosexual spouses but not on permanent same-sex life partners
• Whether reading-in is the appropriate remedy
• Whether the declaration of invalidity should operate retrospectively or only prospectively
• Whether interested third parties (the Starke sisters and Bobby Lee Bell) should be permitted to intervene
• Whether the ancillary orders made by the High Court (removal of executor, return of movables, setting aside property sale, costs orders) were just and equitable
• The appropriate costs order

1. Leave to intervene granted to Starke sisters and Bobby Lee Bell, with no order as to costs. 2. First respondent's leave to appeal granted; appeal succeeds in part. 3. Application for confirmation granted. 4. High Court order set aside and replaced with order: (a) declaring section 1(1) unconstitutional with effect from 27 April 1994 and reading in words to include "partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support"; (b) limiting retrospective effect to protect bona fide transferees not on notice of legal challenge; (c) providing for variation if serious practical problems arise; (d) declaring Gory and Brooks were partners in such a relationship; (e) declaring Gory the sole intestate heir; (f) setting aside property sale; (g) ordering return of movables within seven days; (h) removing first respondent as executor and suspending administration pending new appointment. 5. Minister ordered to pay applicant's and first respondent's costs in Constitutional Court and High Court, including costs of two counsel for applicant.

1. Section 1(1) of the Intestate Succession Act 81 of 1987 is unconstitutional and invalid to the extent that it confers rights of intestate succession on heterosexual spouses but not on partners in permanent same-sex life partnerships in which the partners have undertaken reciprocal duties of support, as this constitutes unfair discrimination on the listed ground of sexual orientation in violation of sections 9 and 10 of the Constitution. 2. Reading-in is the appropriate remedy where it can be defined with sufficient precision, interferes as little as possible with the legislative scheme, and is faithful to that scheme within constitutional constraints. 3. Under the doctrine of objective constitutional invalidity, pre-existing unconstitutional legislation becomes invalid from the date the Constitution came into force, but a court may limit retrospective effect of a declaration of invalidity under section 172(1)(b)(i) to protect the interests of bona fide third parties and prevent serious administrative disruption, while still providing effective relief to vindicate constitutional rights. 4. In matters involving constitutional validity of legislation, an applicant for intervention must show: (a) a direct and substantial interest in the subject matter; but (b) this is not always sufficient - the court has overriding discretion to grant or refuse intervention in the interests of justice, considering factors such as timing, attitude of other parties, and whether the applicant raises substantially new contentions. 5. "Issues connected with decisions on constitutional matters" under section 167(3)(b) includes ancillary orders that are dependent upon a declaration of constitutional invalidity and were made pursuant to such declaration in the interests of justice and equity. 6. Exceptional circumstances (such as the State's failure to discharge its section 7(2) obligation to amend unconstitutional legislation despite repeated judicial prompting, thereby requiring vulnerable persons to litigate piecemeal to vindicate their rights) may justify ordering the State to pay all parties' costs.

1. The Court noted that comprehensive legislation dealing with the whole gamut of different types of marital and non-marital domestic partnerships is the task of the legislature, not the courts (para [31]). 2. The Court left open how any new marriage dispensation resulting from the Fourie judgment would interact with pre-existing same-sex life partnerships, and whether there should be a transitional period for such partnerships to marry or register - these are pre-eminently legislative decisions (paras [29]-[31], [22]). 3. The Court observed that once same-sex couples can legally marry following Fourie, there may be a question whether it is appropriate to distinguish between unmarried heterosexual couples and unmarried same-sex couples for intestate succession purposes, though the legislature can address this (paras [29]-[30]). 4. The Court suggested (without deciding) that ancillary orders made pursuant to a declaration of invalidity under section 172(1) might themselves constitute "constitutional matters" requiring confirmation under section 172(2)(d), not merely "issues connected with decisions on constitutional matters" (paras [49]-[50]). 5. Van Heerden AJ observed that government departments should do more than merely file affidavits raising concerns - something more substantive is required when dealing with constitutional challenges to legislation and formulation of appropriate remedies (para [64]).

This case is a landmark in South African LGBTI+ rights jurisprudence. It definitively established that permanent same-sex life partners have equal rights to heterosexual spouses in intestate succession, applying the constitutional rights to equality and dignity. The judgment demonstrates the Court's approach to remedies in discrimination cases: (1) reading-in is appropriate where it cures unconstitutionality with minimal interference with legislative scheme; (2) declarations of invalidity generally operate retrospectively under the doctrine of objective constitutional invalidity (dating back to commencement of the Constitution), but courts may limit retrospective effect in the interests of justice and equity to protect bona fide third parties; (3) comprehensive legislative reform by Parliament is preferable to piecemeal judicial intervention, but courts will grant effective relief to vindicate constitutional rights where the legislature has failed to act. The case also addressed important procedural issues including standing to intervene in constitutional matters, the scope of "issues connected with decisions on constitutional matters" under section 167(3)(b), and exceptional circumstances warranting costs orders against the State. The judgment was handed down before the deadline in Minister of Home Affairs v Fourie for Parliament to pass legislation recognizing same-sex marriages, and explicitly left open how the new marriage dispensation would interact with pre-existing same-sex life partnerships. The case forms part of a series of Constitutional Court decisions progressively eliminating discrimination against same-sex couples across multiple areas of law.