Constitutional Court judges asked on Thursday why the government was not proactively rewriting the law on same-sex partnerships?
Judge Kate O’Regan said the court had on ”numerous occasions” called on the state to rewrite the law.
”It needs to be dealt with and it needs to be dealt with urgently,” she said.
Instead of this, people who cannot afford legal costs have to bring individual cases to court to establish their rights.
O’Regan was questioning advocate Seth Nthai, who appeared on behalf of the minister of justice and constitutional development. The minister is a respondent in the case of Mark Gory vs Daniel Gerhardus Kolver and others, which is being heard by a full bench of the Constitutional Court. The case concerns the right of same-sex partners to inherit from their partners who die without leaving wills.
It arises from a ruling earlier this year by the Pretoria High Court, which upheld Gory’s claim to be his late partner’s heir. The court also said the Intestate Succession Act should be amended to provide for permanent same-sex life partners to inherit automatically on the death of their intestate partners, as a spouse would.
Nthai said his instructions were not to argue on that as a policy, only on whether the minister should pay Gory’s costs.
The minister is not opposing Gory’s claim to be his dead partner’s heir, or his application to have the law changed to allow this.
”Bad laws on the books are attacked and you choose not to oppose because the laws are bad — is that sufficient?” asked Deputy Chief Justice Dikgang Moseneke.
Judge Johann van der Westhuizen asked if it is not dangerous to leave ”an entire area of law reform” to cases brought by individual litigants when there had already been several judgments in that direction.
Nthai conceded that, as the minister was opposing costs only, it could be assumed she did not oppose the constitutional correctness of the application.
Daniel Berger SC, for Gory, argued that if the court found that his client was entitled to inherit, the order should also apply to other similarly affected estates and retrospectively to estates that have not yet been finalised.
Berger said the matter was not primarily about money. The estate in dispute is worth R9 300.
”It’s a very small estate. This was really an issue of dignity and being treated as a human being with rights.”
Much of the day’s argument revolved around the effect on other such cases should the law change, and how retrospective such a ruling should be.
Chief Justice Pius Langa reserved judgment in the matter.
Constitutional Court senior registrar Martie Stander explained before Thursday’s hearing that the case arose from the death of Gory’s partner Henry Harrison Brooks, who died without leaving a will. Brooks’s parents appointed Kolver as executor of the estate and claimed their son’s assets as his intestate heirs.
Gory challenged this on the basis of his relationship with Brooks.
The Pretoria court ruled in favour of Gory, saying the exclusion of same-sex life partners from inheritance in such circumstances was unconstitutional.
Kolver applied for leave to appeal against the Pretoria High Court order removing him as executor. This is opposed by Gory, who wants the order to be confirmed as it stands.
There was also an application to intervene in the matter by Elrida Starke and her three sisters, whose late brother was allegedly a partner in another same-sex life partnership.
There was a dispute between the four sisters and their late brother’s life partner as to who the lawful heir of the intestate estate was.
The sisters argue that if the order is confirmed, they will be disinherited and any confirmation of the order should not be backdated. Their late brother’s partner has argued in favour of the order. — Sapa