Page:Gory v Kolver (CC).djvu/34

VAN HEERDEN AJ Paragraphs 4 and 5 of the order made by the High Court can be dealt with briefly. As already stated, the factual finding of the High Court to the effect that Mr Gory and the late Mr Brooks were, at the time of the latter’s death, partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support was not challenged before this Court and is in my view clearly correct. Paragraph 4 of the High Court order simply encapsulates this factual finding and is certainly just and equitable. So too, once this Court confirms the declaration of invalidity of section 1(1) of the Act and the reading-in order made by the High Court, then paragraph 5 of the High Court order—which declares Mr Gory to be the sole heir of the late Mr Brooks—clearly follows.

As regards paragraph 6 of the High Court order, it was in my view equitable for the agreement of purchase and sale in terms of which Mr Kolver purportedly sold the deceased’s house to be set aside. Mr Gory and the deceased were living in the house at the time of the latter’s death. The agreement was entered into at a time when the constitutionality of section 1(1) of the Act had not yet been determined. Had it been clear that Mr Gory was the sole intestate heir of the deceased, the property would in all probability not have been sold at that stage. The agreement of sale has not been approved by the Master and the purchasers do not oppose the setting aside of the agreement (concluded more than a year ago). Indeed, as indicated above, the purchasers are not even cited as respondents in the present proceedings. On the other hand, Mr Gory is currently living on the property, paying the monthly bond instalments and the municipal account for rates, taxes, water and electricity. He is the