Mr Bell contends that the Starke sisters’ invocation of the Fourie decision in support of their argument against reading-in is misplaced. He points out that there are two fundamental differences between the Fourie case and the present case when it comes to the exercise by this Court of its remedial discretion. First, the right to marry is a right which can be exercised only prospectively, while the right to inherit intestate is a right which can be asserted only retrospectively. By suspending the order of invalidity in Fourie’s case, this Court did not deprive the successful litigants of their rights — it merely required them to wait for a period of one year for their relief. However, if the order of constitutional validity in the present case is suspended or not given retrospective effect, this will permanently deprive Mr Gory, Mr Bell and other
against a governmental agency but for the unconstitutional legislation. By contrast, in the present matter, it is not a same-sex couple seeking relief, but rather a person who claims to be the surviving partner of an alleged permanent same-sex life partnership — different considerations apply to this kind of situation.
- See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs above n 20 (unconstitutionality of provision of immigration statute which gave special benefits to foreigners married to South African citizens or permanent residents, but did not confer such benefits on permanent same-sex life partners); Satchwell above n 20 (unconstitutionality of provisions of statute and of certain regulations issued in terms thereof which accorded financial benefits to the surviving “spouse” of a deceased judge, but not to a deceased judge’s surviving permanent same-sex life partner); Du Toit above n 20 (unconstitutionality of provision in child care legislation which allowed married persons to adopt children jointly, but did not allow permanent same-sex life partners to do so); J and Another v Director General, Department of Home Affairs, and Others 2003 (5) SA 621 (CC); 2003 (5) BCLR 463 (CC) (unconstitutionality of statutory provision providing for the parental rights of a husband in cases where the child in question had been conceived through the artificial insemination of his wife, but not for the parental rights of permanent same-sex life partners in similar cases). See also Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T); 1998 (4) BCLR 444 (T) (unconstitutionality of medical scheme regulations not allowing for the registration of a permanent same-sex life partner as a dependant under the scheme); Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C) (an exclusion of liability by the insurer in respect of “a member of the policy holder’s family normally resident with him” held to apply to a person who shared the insured’s home and had been in a same-sex relationship with him for a period of ten years preceding the accident in which such person had been injured); Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) (extension of third party action for damages for loss of support and for funeral expenses to partners in a permanent same-sex life partnership who had undertaken a contractual duty to support each other).