Page:Gory v Kolver (CC).djvu/22

VAN HEERDEN AJ is that contained in the answering affidavit filed in the court below on behalf of the Minister. The deponent to this affidavit, Ms Theresia Bezuidenhout, canvassed various practical difficulties in respect of the administration of affected deceased estates that would result from a retrospective order, including delays in the finalisation of such estates, and complications and additional costs arising from the “effective nullification” of the appointment of the executor and the appointment of a new executor. Ms Bezuidenhout concluded that any order made by the Court “should operate prospectively; alternatively should not apply to estates in which an executor has already been appointed”. In view of the fact that an order with retrospective effect would cause uncertainty and, in addition, would ignore the wishes of those deceased persons who had consciously and deliberately decided not to make a will but to let their estates devolve in accordance with the scheme of intestate succession set out in the Act, any declaration of constitutional invalidity and reading-in order should be limited so that they apply only prospectively.

In response, Mr Gory submits that limiting the retrospective effect of the declaration of invalidity and reading-in to those intestate estates of persons who die after the date of this Court’s order would deny relief to him and others who are similarly situated. This would not be just and equitable.

As regards the argument that a reading-in would interfere with the autonomy interest of intestate same-sex life partners who elect not to make a will, Mr Bell points out that the purpose of the Act is to provide normative standards and not to protect the