Gay partners can now inherit

2006-11-23 16:51

Johannesburg - Gay life partners are entitled to inherit from the intestate estates of their partners just as spouses do, the Constitutional Court (Concourt) ruled on Thursday.

The Concourt upheld the March ruling by Pretoria High Court that section 1(1) of the Intestate Succession Act 81 of 1987 was unconstitutional because it excluded gay life partners.

It ordered the reading in after the word "spouse", wherever it appears in that section of the act, of the words "or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support".

This ruling was made retrospective to April 27 1994, when the interim constitution took effect.

The Concourt said that this amendment should, in the main, operate retrospectively, but would not affect cases where transfer of ownership had taken place, unless there had been a legal challenge at the time.

'Amounts to discrimination'

The disputed section did not provide for a permanent same-sex life partner to inherit automatically, as a spouse would, when the other partner died without a will.

Judge Belinda van Heerden, in a judgment agreed to by nine other Concourt judges, wrote: "As these partners are not legally entitled to marry, this amounts to discrimination on the listed ground of sexual orientation in terms of section 9(3) of the constitution."

Judge Van Heerden is a judge of the Supreme Court of Appeal, and was an acting judge in the Constitutional Court for the purposes of this case.

The ruling was in the case of Mark Gory v Daniel Kolver, and arose from the death of Gory's life partner, Henry Harrison Brooks, in April 2005.

Brooks died without leaving a will and his parents appointed Kolver as the executor and claimed their son's estate. Gory disputed this and won an initial ruling in Pretoria High Court.

The Concourt ruled that Gory was Brooks' sole intestate heir.

The Concourt order cancelled the sale of Gory and Brooks's joint Bezuidenhout Valley home, which had been registered in Brooks's name, and ordered the return of Brooks's personal property to Gory.

Minister must pay costs

The Concourt ordered Kolver's removal as executor, but said he should be paid for the work he had done.

Justice Minister Brigitte Mabandla, named as a respondent by Gory, did not oppose Gory's application to change the law, but opposed his request for costs against her sought in the Concourt.

The Concourt said it was the minister's fault that the unconstitutional law was still on the books and ordered her to pay costs for Gory and Kolver in both the High Court and the Concourt matters.

There was also an application to intervene in the matter by Elrida Starke and her three sisters, as the intestate estate of their late brother William Starke was being claimed by his life partner, Bobby Lee Bell.

The Concourt allowed the intervention, but said the dispute between the Starke sisters and Bell about whether Bell and William Starke were life partners would have to be addressed in a separate court.

The Concourt noted that "this is the first case dealing with the recognition of the entitlements of permanent same-sex life partners in which the effect of such recognition will be to deprive third parties of vested claims".

It said a similar situation arose when it had ruled that it was unconstitutional for only men to inherit under customary law.

The Concourt criticised the government for its tardiness in amending the law to accommodate same-sex life partnerships, despite requests by the Concourt.

Small estate, important principle

The Civil Union Bill, which legalises marriages between gay couples, was passed in parliament on November 14 and is expected to be signed into law before the December 1 deadline set by the Concourt.

Due to debts, Brooks' estate was worth only about R9 300.

Judge Van Heerden wrote: "The estate is a small one, but the principle involved is important."