Page:Gory v Kolver (CC).djvu/13

VAN HEERDEN AJ The unconstitutionality of section 1(1) of the Act

Section 1(1) of the Act confers rights of intestate succession on heterosexual spouses but not on permanent same-sex life partners. 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, which discrimination is in terms of section 9(5) presumed to be unfair unless the contrary is established. Given the recent jurisprudence of South African courts in relation to permanent same-sex life partnerships, the failure of section 1(1) to include within its ambit surviving partners to permanent same-sex life partnerships in which the partners have undertaken reciprocal duties of support is inconsistent with Mr Gory’s rights to equality and dignity in terms of sections 9 and 10 of the Constitution. There was no attempt by the respondents either in the High Court or in this Court to justify the limitation of Mr Gory’s rights in term of section 36 and, in my view, there is no such justification. It follows that the High Court correctly found section 1(1) of the Act to be unconstitutional and invalid to the extent alleged by Mr Gory and that paragraph 1 of the order of the High Court must be confirmed.

The appropriate remedy