(if any), there is the possibility that unmarried heterosexual couples will continue to be excluded from the ambit of section 1(1) of the Act.[1] As was argued by the Starke sisters, the rationale in previous court decisions for using reading-in to extend the ambit of statutory provisions applicable to spouses/married couples so as to include permanent same-sex life partners was that same-sex couples are unable legally to marry and hence to bring themselves within the ambit of the relevant statutory provision. Once this impediment is removed, then there would appear to be no good reason for distinguishing between unmarried heterosexual couples and unmarried same-sex couples in respect of intestate succession.
[30] In this regard, it is useful to reiterate the following dictum of this Court in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs:[2]
“It should also be borne in mind that whether the remedy a Court grants is one striking down, wholly or in part; or reading into or extending the text, its choice is not final. Legislatures are able, within constitutional limits, to amend the remedy, whether by re-enacting equal benefits, further extending benefits, reducing them, amending them, ‘fine-tuning’ them or abolishing them. Thus they can exercise final control over the nature and extent of the benefits.” (footnotes omitted).
[31] As contended by Mr Bell, questions like what status to accord pre-existing same-sex life partnerships after the expiry of the Fourie deadline, whether to provide a “transitional” period in which partners to pre-existing same-sex life partnerships will be expected to marry or to register their pre-existing partnerships to continue to
- ↑ Cf the majority decision of this Court in Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC).
- ↑ Above n 20 at para 76.
20
