GORY v KOLVER NO and Others

Case Title: Gory v Kolver NO and Others

Citation: 2007 (4) SA 97 (CC)

Court: Constitutional Court of South Africa

Bench: 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

Date of Judgment: 23 November 2006

Date Heard: 24 August 2006

Applicant: Mark Gory

Respondents: Daniel Gerhardus Kolver; Henry Harrison Brooks; Maryke Brooks; and the Master of the High Court, Pretoria

1. Introduction

This case addresses the inequality that existed between same-sex and opposite-sex relationships, specifically the exclusion of same-sex partners from inheriting or receiving maintenance from their deceased partner’s estate under the law of intestate succession. It marked a significant development in Family Law, as the court’s judgment had far-reaching consequences for subsequent cases — ultimately shifting the imbalance in an unexpected direction by creating fresh inequalities affecting opposite-sex life partners, rather than simply curing the discrimination that existed at the time. This case is of considerable significance because it demonstrates how judicial decisions can shape future cases through the doctrine of precedent, while simultaneously giving rise to new areas of legal uncertainty.

2. Facts of the Case

Mark Gory, the applicant, was in a same-sex permanent life partnership with the deceased Henry Harrison Brooks, in which both parties had undertaken reciprocal duties of support. Following Mr. Brooks’s death intestate on 30 April 2005 (the author notes this date should be verified against the judgment), Mr. Brooks’s parents — the second and third respondents — nominated Daniel Kolver to be appointed by the Master of the High Court as the sole intestate heir. Mr. Gory simultaneously claimed to be the sole heir as the surviving life partner and argued that he had been unfairly excluded, giving rise to these proceedings.¹

The exclusion arose because the Intestate Succession Act (ISA) recognised only a “spouse” for purposes of inheritance and maintenance, and at the time, same-sex partners were not permitted to marry and were accordingly not formally recognised in the eyes of the law.² The matter was escalated to the Constitutional Court for confirmation of the High Court orders made in October 2005 in the Pretoria Division.

3. Legal Issues

3.1. Whether section 1(1) of the ISA was unconstitutional in excluding same-sex life partners who had undertaken reciprocal duties of support from inheriting intestate.

3.2. Whether the reading-in remedy granted by Herzenberg J — inserting the words “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support” after “spouse” for purposes of inheritance — was an appropriate relief.³

3.3. Whether such relief could apply retrospectively.

4. Judgment

On the first issue, Van Heerden AJ held that section 1(1) of the ISA conferred rights of intestate succession on heterosexual spouses to the exclusion of homosexual life partners, and that this distinction amounted to unfair discrimination and inequality. The learned judge confirmed that the reading-in remedy was the most suitable means of curing the constitutional defect as declared by the High Court. He further held that it was necessary for the court to fashion an order limiting the retrospective effect of the declaration of unconstitutionality, in order to prevent disruption of the administration of deceased estates and to protect the interests of parties who had acted in good faith.⁴

5. Ratio

5.1. Constitutionality of Section 1(1) of the ISA

In reaching its decision, the court was bound by the Constitution and was required to assess, first, whether section 1(1) of the Act discriminated and, if so, whether that discrimination was fair. Van Heerden AJ held that discrimination did indeed exist and that the provision ran afoul of sections 9 and 10 of the Constitution.⁵ This finding was driven by the provision’s differential treatment of heterosexual couples relative to homosexual ones — a distinction based on sexual orientation, which is a listed ground of discrimination under section 9(3), presumed to be unfair under section 9(5) of the Constitution unless the contrary is established. The court further held that the limitation of Mr. Gory’s right to inherit found no justification under section 36 of the Constitution and that, accordingly, the court a quo had correctly found the provision unconstitutional.⁶

5.2. The Reading-In Remedy

Van Heerden AJ reasoned that the court, empowered by section 172 of the Constitution, may declare a statutory provision invalid and make any order that is “just and equitable.”⁷ The court recognised the guidelines laid down in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs for determining whether a reading-in remedy is appropriate.⁸ It was noted that the remedy should interfere as little as possible with legislation adopted by the legislature, and that it is only appropriate where the court is in a position to clarify, with sufficient precision, the extent to which the provision must be extended to achieve constitutional compliance.⁹

In deciding on the reading-in remedy, the court had regard to the statement by Sachs J in Minister of Home Affairs v Fourie, where relief was sought to allow same-sex life partners to marry — a privilege from which they had been excluded.¹⁰ Sachs J in that case observed that there was a legislative gap which appropriately fell to future legislative consideration, given that same-sex life partners had no option to marry at that time.¹¹ The court in Gory held that any legislation enacted in response to Fourie would not amend the statutes in which a reading-in remedy had already been ordered by the court to equalise the rights of homosexual and heterosexual relationships. In clear terms, Van Heerden AJ held that even if Parliament were to respond to Fourie by permitting same-sex couples to marry, same-sex permanent life partners who chose not to marry would still be entitled to inherit from their life partners.

5.3. Retrospective Effect

Van Heerden AJ endorsed the High Court’s reluctance to declare the invalidity of section 1(1) retrospective in effect, finding that retrospectivity would have undermined the finality of completed acts in the administration of estates.¹² His decision was supported by the judgment in Bhe v Khayelitsha Magistrate, where Langa DCJ held that a reading-in remedy does not permit the re-opening of a transaction even where an heir knowingly benefited from a provision that was subsequently challenged.¹³ The learned judge held firmly that it was necessary to balance the potentially disruptive effects of retrospective invalidity against the interests of innocent third parties, while still affording Mr. Gory effective relief. Accordingly, the court declared the invalidity prospectively rather than retrospectively, in order to protect the interests of innocent parties.

6. Critical Analysis of the Judgment

At the outset, it must be acknowledged that this judgment had a considerable impact on subsequent legal developments. It is clear and beyond reasonable dispute that section 1(1) of the ISA was one-sided in its application, extending its protections exclusively to heterosexual relationships. The court showed proper deference to the Constitution, governed by the supremacy clause, and correctly found this provision unconstitutional and invalid for its conflict with sections 9 and 10 of the Constitution.¹⁴

Turning to the more contentious aspect of the judgment — and the primary focus of this critique — the court exercised its remedial function by ordering the reading-in remedy, which was, in principle, a perfectly appropriate form of relief in the circumstances. The remedy fitted the gap precisely: it provided relief to the disadvantaged homosexual group while respecting the legislature’s role in enacting corrective legislation consequent upon Fourie, which had exposed the exclusion of same-sex couples from the right to marry, and by extension from the protections of section 1(1) of the ISA. The critique of Van Heerden AJ’s findings is, however, largely valid in its implications.

His ruling that the reading-in remedy serves a distinct purpose from any legislation to be enacted by Parliament took steps that generated more inequality rather than reducing it. An honest appraisal of this judgment is that the remedy ought to have been declared interim — operative only for as long as the awaited corrective legislation had not been enacted — so as to bridge the gap for that transitional period. However, when Van Heerden AJ held at paragraph 29 of the judgment that even after an Act permitting same-sex life partners to marry was passed, unmarried same-sex life partners would still inherit from their partners, he not only created a fresh wall of discrimination against opposite-sex life partners, but also called into question the very importance of marriage in family law.

Van Heerden AJ’s judgment in this respect calls into question the emphasis placed by Skweyiya J in Volks v Robinson.¹⁵ In that case, Skweyiya J underscored that “marriage and family are social institutions of vital importance in our society,”¹⁶ illustrating how marriage occupies a special place as the foundation of family life in South African communities. By entrenching the rights of unmarried same-sex partners to inherit even after the legislature had extended the right to marry to same-sex couples, the court inadvertently diminished the legal significance of that institution — at least in the context of succession.

7. Conclusion

This landmark judgment is aptly described as one that opened a wide gap while closing a narrow one. It rightly painted the necessity of addressing the long-standing injustice suffered by same-sex life partners, but in doing so, it created a new imbalance — one that ultimately favoured same-sex partners over their heterosexual counterparts in an equivalent position. The judgment offered enhanced protection to same-sex life partners and gave rise to further litigation, as well as the enactment of the Judicial Matters Amendment Act 15 of 2023, which extended inheritance rights to opposite-sex life partners as well.¹⁷ Ultimately, this judgment leaves enduring questions about the proper role of the reading-in remedy as a constitutional corrective tool, and about the continuing importance of marriage as a legal institution in South Africa today.

Bibliography

Cases

1. Gory v Kolver 2007 (4) SA 97 (CC)
2. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
3. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC)
4. Bhe v Khayelitsha Magistrate 2005 (1) SA 580 (CC)
5. Volks v Robinson 2005 (5) BCLR 446 (CC)

Constitution

6. The Constitution of the Republic of South Africa, 1996

Legislation

7. Intestate Succession Act 81 of 1987
8. Judicial Matters Amendment Act 15 of 2023

Footnote(S):

¹ Gory v Kolver 2007 (4) SA 97 (CC) par 2.

² Intestate Succession Act 81 of 1987 s 1(1).

³ See n 1 above par 4.

⁴ See n 1 above par 43.

⁵ The Constitution of the Republic of South Africa, 1996.

⁶ See n 1 above par 19.

⁷ See n 5 above s 172(1)(b).

⁸ National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC).

⁹ See n 1 above par 21.

¹⁰ Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) par 125–131.

¹¹ See n 1 above par 27.

¹² See n 1 above par 41.

¹³ Bhe v Khayelitsha Magistrate 2005 (1) SA 580 (CC) par 123.

¹⁴ See n 5 above s 2.

¹⁵ Volks v Robinson 2005 (5) BCLR 446 (CC).

¹⁶ See n 15 above par 52.

¹⁷ Judicial Matters Amendment Act 15 of 2023.