CASE NOTE – LAUBSCHER N.O V DUPLAN AND ANOTHER [2016] ZACC 44:

On the 30 November 2016 the Constitutional Court dismissed an application for leave to appeal an order of the Pretoria High Court, concerning the intestate succession rights of unmarried same-sex partners in a permanent same-sex partnership, with reciprocal duties of support.

The key issue ripe for determination centres around the juxtaposition of the Civil Union Act 17 of 2006 (“CUA”) and the 2007 Constitutional Court ruling in Gory v Kolver 2007 (4) SA 97 (CC) (“Gory”). The Court was unanimous (albeit for different reasons) in their findings that same-sex partners not part of a civil union, could continue to inherit in terms of the Intestate Succession Act 81 of 1987 (“ISA”), and that the advent of the CUA did not derogate from the rights afforded to unmarried same-sex partners in terms of the Gory ruling. In the interest of brevity, this case note will primarily focus on the majority judgment of Acting Justice Mbha.

Background to the Gory Judgment:

Although the CUA came into effect from 30 November 2006, at the time the Gory judgment was delivered (on the 23 November 2006), the CUA was not as then assented to and was of no force and effect. Accordingly, no statutory provision existed which entitled same-sex partners to be in a legally recognised marriage. The issue for determination before the Court in the Gory judgment, centred around the provisions of the ISA which only entitled spouses to benefit from the intestate deceased estate.

The court in Gory at paragraph 66, found section 1(1) of the ISA to be unconstitutional and ordered the reading-in of the following phrase: “…after the word spouse, wherever it appears in the section, [a reading-in] of the words ‘or partner in a permanent same-sex life partnership…[where] the partners have undertaken reciprocal duties of support”.Application to the facts at hand:

The Court accordingly had to grapple with the question of whether the ratio of the Gory judgment was still applicable in view of the enactment of the CUA, which afforded same-sex couples an election to enjoy the benefits of marriage afforded to heterosexual couples, specifically with respect to the issue of intestate succession. The court further had to contend with the ever present elephant in the room, being the Separation of Powers between the judiciary and the legislature and the cautious approach the Court must adopt when reading-into legislation.

The Court furthermore was obliged to consider the inequality that the Gory judgment poses to opposite-sex partnerships that elect to remain unmarried. The Court ultimately dispensed with the issue as same did not form part of the purview of the Court based on the facts before the learned Justices. However, Mbha AJ in obiter dicta at paragraph 52, stated that such an issue would necessarily require “[a]n actual cause of action and a plea of unfair discrimination…before crossing this bridge”.

Ultimately, it was held that civil union in terms of the CUA constitute a new category of beneficiary for the purposes of the ISA, and are sufficiently distinguishable from same-sex permanent life partnerships. Accordingly, same-sex partners will continue to enjoy intestate succession rights in terms of section 1(1) of the ISA per the Gory order. The Court did tip their collective chapeaux in showing deference to the legislature by including the rider “…until such time that the legislature specifically amends the section”.