Gory v Kolver NO and Others (Starke and Others Intervening)

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, O'Regan J, Sachs J, Van Der Westhuizen J, Yacoob J, Kondile AJ and Van Heerden AJ
• Judgment Date: 23 November 2006
• Citation: 2007 (4) SA 97 (CC)
• Docket Number: CCT 28/06
• Hearing Date: 24 August 2006
• Counsel: D I Berger SC (with P L Mokoena) for the applicant. E Prinsloo for the first respondent. No appearances for the second to sixth respondents. S Nthai and M Mokadikoa for the seventh respondent. P B Hodes SC (with A Katz) for the intervening parties. M Chaskalson and M Sikhakane for the counter-intervening party.
• Court: Constitutional Court

Van Heerden AJ:

[1] This case concerns the constitutional validity of s 1(1) of the H Intestate Succession Act 81 of 1987 (the Act) to the extent that it confers rights of intestate succession on heterosexual spouses but not on permanent same-sex life partners, as well as the appropriate remedy should this Court confirm the order of constitutional invalidity made by the Pretoria High Court.

Background I

[2] The applicant, Mr Mark Gory, and the late Henry Harrison Brooks (the deceased) were, at the time of the latter's death, partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support. The factual background of the relationship J between Mr Gory and Mr Brooks is set out fully in the reported

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judgment of the High Court. [1] As the factual findings of the High Court A in this regard have not been challenged, it is not necessary to repeat the facts in any detail.

[3] When Mr Brooks died intestate on 30 April 2005, his parents, who were the second and third respondents in the Court below, nominated the first respondent, Mr Daniel Gerhardus Kolver, to be appointed by B the Master of the High Court, Pretoria (the sixth respondent in the Court below), as the executor of their son's estate. They claimed to be the deceased's intestate heirs [2] and entitled to his estate. The resulting dispute with Mr Gory, who also claimed to be the deceased's sole intestate heir, [3] ultimately resulted in motion proceedings being instituted C by Mr Gory in the Pretoria High Court in October 2005.

[4] On 31 March 2006 Hartzenberg J made the following order:

'1.

It is declared that the omission in s 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 D the partners have undertaken reciprocal duties of support'' is inconsistent with the Constitution of the Republic of South Africa.

2.

It is declared that s 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 E support''.

3.

The orders in paras 1 and 2 above shall have no effect on the validity of any acts performed in respect of the administration of an intestate estate that has been finally wound up by date of this order.

4.

It is declared that the applicant and the late Henry Harrison Brooks were, F at the time of the death of the deceased, partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support.

5.

It is declared that the applicant is the sole heir of the late Henry Harrison Brooks.

6.

The agreement, dated 9 September 2005 in which the property situated at 152 First Avenue, Bezuidenhout Valley, Johannesburg, was purportedly G sold to the fourth and/or fifth respondents is declared to be of no force and effect. This particular order has immediate effect.

7.

The applicant is entitled to occupation of the property mentioned in 6 above, on condition that he pays the monthly bond instalments and the municipal account for rates, taxes, water and electricity. H

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8.

A The first, second and third respondents jointly and severally, the one complying the other to be absolved, are directed to return the items on X2, as amended by me, [4] to the applicant. This order has immediate effect.

9.1

[5] The first respondent is removed as executor from the estate of the late Henry Harrison Brooks. This order is suspended pending confirmation of B the orders in 1, 2 and 3 above.

9.2

Save as specifically dealt with in this order the administration of the estate of the late Henry Harrison Brooks is suspended pending confirmation of the order in 1, 2, 3 and 4 [6] above.

10.

The first respondent is not entitled to remuneration for his services in connection with the administration of the aforesaid estate or to be C reimbursed for expenses. This order is suspended pending confirmation of 1, 2, 3 and 4 [7] above.

11.

The first respondent is ordered de bonis propriis to pay half of the costs of the applicant and the second and third respondents, jointly and severally, the one paying the other to be absolved, are ordered to pay the other half of the costs of the applicant. This order is suspended pending D confirmation of the orders in 1, 2, 3 and 4 [8] above.'

[5] The Minister of Justice and Constitutional Development, the seventh respondent in the Court a quo, caused an answering affidavit to be filed in that Court stating that the application was moot because of the decision of this Court in Minister of Home Affairs and Another v Fourie and E Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others. [9] In addition, it was contended that, while Mr Gory had made out a case for prospective relief, practical difficulties in connection with the administration of relevant deceased estates would result from retrospectivity of F an order of constitutional invalidity. Thus, it was argued that any such order should be made to operate only prospectively, alternatively should not apply to those estates in which an executor has already been appointed. [10] The Minister did not, however, formally oppose Mr Gory's application in the High Court. Nonetheless, the answering affidavit G

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deposed to on her behalf in substance constituted submissions in A opposition to the order sought by Mr Gory.

[6] The fourth and fifth respondents in the Court below were a married couple to whom the executor had purported to sell the late Mr Brooks' house in which he and the deceased were living at the time of his death. B They did not oppose Mr Gory's application and, as they also do not oppose the application for confirmation before this Court, they are not cited as respondents in these proceedings.

Proceedings before this Court

[7] Mr Gory applies to this Court in terms of s 172(2)(d) of the C Constitution for confirmation of paras 1, 2 and 3 of the High Court order and a costs order against the Minister. Neither Mr Kolver nor the Minister opposes the application for confirmation. Mr Kolver has, however, brought an application for leave to appeal against paras 9, 10 and 11 of the High Court order. The application was heard simultaneously D with the application for confirmation. The Minister appeared before this Court only to oppose Mr Gory's prayer for a costs order against her.

[8] There is also an application to intervene in the matter by Ms Erilda Starke and her three sisters. Their late brother, Mr William Starke, was E at the time of his death allegedly a partner in a permanent same-sex life partnership with Mr Bobby Lee Bell. Mr Starke died intestate on 21 November 2005 and his sisters nominated an attorney, Mr Myer Mervyn Smith, to be appointed by the Master of the Cape High Court as the executor of their brother's estate. There is a dispute between the F four sisters and Mr Smith, on the one hand, and Mr Bell, on the other, concerning Mr Bell's claim against Mr Starke's intestate estate. The applicants for intervention (the Starke sisters) deny that the relationship between their late brother and Mr Bell was a permanent life partnership and also deny that their brother and Mr Bell were 'totally dependent on each other for reciprocal support in every sense of the word', as alleged G by Mr Bell. This factual dispute will obviously have to be addressed in proceedings before the relevant High Court, should Mr Gory's application for confirmation be successful.

[9] The Starke sisters argue that, should the High Court order be confirmed, they will suffer prejudice by being deprived of their vested H rights as their late brother's intestate heirs. [11] While they make no specific

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A submissions in respect of para 1 of the High Court order, they contend that paras 2 and 3 of the order should not be confirmed, that reading-in is not the appropriate remedy and that any order made by this Court should apply only to the intestate estates of persons who die after the order is handed down. The Starke sisters do not seek costs from any B party in this matter.

[10] While Mr Bell does not oppose the Starke sisters' application for intervention, he opposes the relief sought by them. He also applies to intervene should their application be granted. Like the Starke sisters, Mr Bell does not seek costs. Neither Mr Kolver nor the Minister opposes the C application for intervention by the Starke sisters, or the conditional application to intervene by Mr Bell. Mr Gory, on the other hand, takes the view that there is no merit in the Starke sisters' application and that it should be dismissed with costs.

Applications for leave to intervene D

[11] The Starke sisters cite Rule 8 of this Court's Rules which deals with the intervention of parties in proceedings, providing that:

'(1) Any person entitled to join as a party or liable to be joined as a party in the proceedings may, on notice to all parties, at any stage of the proceedings E apply for leave to intervene as a party.'

They acknowledge that Rule 12 of the Uniform Rules of the High Court is not expressly listed in Constitutional Court Rule 29 as one of the Uniform Rules which apply to the proceedings in this Court. They submit, however, that the considerations applicable to Uniform Rule 12 F as developed by the Courts should be followed by this Court in construing Constitutional Court Rule 8 and the effect thereof. [12] This being so, the decisive criterion for a...