Page:Gory v Kolver (CC).djvu/39

VAN HEERDEN AJ proper weight to the fact that he could not recognise Mr Gory’s claim given the law in existence at the time. In fact, Mr Kolver would have been acting unlawfully had he recognised Mr Gory as the surviving spouse of the deceased Mr Brooks for the purposes of section 1(1) of the Act. Before he was legally able to do so, the constitutionality of this section had to be challenged in legal proceedings, a court had to declare the section to be unconstitutional and such a declaration of invalidity had to be confirmed by this Court. This being so, the High Court’s statement that Mr Kolver “bluntly refused to consider the applicant’s claim” is based on an incorrect principle.

Mr Kolver advised Mr Gory at an early stage that the immovable property would in his view have to be sold to generate cash to settle the debts of the deceased estate. Notwithstanding Mr Gory having legal representation from shortly after the death of the deceased on 30 April 2005, he made contradictory claims against the estate without furnishing Mr Kolver with sufficient facts in support of these claims. He also failed to institute proceedings for a declaration of constitutional invalidity until early in October 2005. In the meantime, Mr Kolver was obliged to take the movable assets of the estate into his custody and to take steps to sell the immovable property to defray the debts of the estate which were increasing continually as no income was being received from the property or from any other source. In view of the small size of the estate, he could not realistically be expected to suspend winding-up the estate until such time as Mr Gory had formally challenged the legislation in question. Had Mr Gory acted more expeditiously in challenging the constitutional