Page:Gory v Kolver (HC).djvu/12

Rh acts performed in respect of the administration of an intestate estate that had been finally wound up by the date of its order.

The matter came before the Constitutional Court for confirmation in terms of section 172(2)(d) of the Constitution. The majority of the court found that the unconstitutionality could be avoided by including in the definition of spouse a partner in monogamous Muslim marriage union. Moseneke J with whom Madala J agreed followed the same approach as the Cape Provincial Division and found that the thus far accepted definition of "spouse" excluded partners to a Muslim marriage union. Sachs J in paragraph [34] compared the different approaches in previous judgments: "''[34] The fact that permanent same-sex life partnerships could not be included in the term 'spouse' affected the manner in which the resulting discriminatory impact of the statutes under consideration was remedied in National Coalition and Satchwell. Once it was established that members of permanent same-sex life partnerships, although not classifiable as married people. merited the same recognition as is accorded by the law to married persons, the indicated remedy was to declare the unconstitutionality and read-in a provision to cure the defect. Thus, recognition of the right to equality and dignity of permanent same-sex life partners was achieved not by means of imposing undue strain on the word 'spouse', but by pointing to the constitutionally unacceptable manner in which the statutes fail to treat them on a par with married people. Such partners were accordingly equated with, rather than subsumed into the concept of spouses. The under-inclusiveness in their regard was cured by adding to the category of entitlement so as to avoid unconstitutionality. In the present matter the potential under-inclusiveness and consequent discriminatory impact is avoided simply by correcting the interpretation.''" (My emphasis)

It has now been held over and over in our courts that in our present society same-sex life partnerships deserve the same considerations than hetero-sexual marriages. For the purposes of prayers 1 and 2 it has only to be considered whether Section 1(1) of