trial court were, at a later date, to resolve the factual dispute between them and Mr Bell in favour of the latter.
[38] It is important to note that, as pointed out on behalf of the Starke sisters, this is the first case dealing with the recognition of the entitlements of permanent same-sex life partners in which the effect of such recognition will be to deprive third parties of vested claims.[1] However, a not dissimilar situation confronted this Court in the Bhe and Shibi cases,[2] in which (inter alia) the rule of male primogeniture as it applies in customary law to the inheritance of property was declared to be inconsistent with the Constitution and invalid to the extent that it excluded or hindered women and extramarital children from inheriting property. This Court also held that section 1 of the Act is, subject to certain modifications to accommodate polygynous unions, applicable to intestate deceased estates that would formerly have been governed by section 23 of the Black Administration Act 38 of 1927.[3] In terms of these statutory provisions and “Black law and custom” as it applied at the time of the deceased’s death in both Bhe and Shibi, a “third party”[4] acquired vested rights to inherit upon the death of the relevant deceased. The effect of the declarations of constitutional invalidity made by the Court was that such rights ceased to exist and the applicants were declared to be the deceased’s intestate heirs, their rights in this regard obviously dating from the date of death of the relevant deceased.
- ↑ See para [23] above, in particular the cases referred to in n 25 above.
- ↑ Above n 37.
- ↑ That section, together with the Regulations for the Administration and Distribution of the Estates of Deceased Blacks (R200) published in Government Gazette No 10601 dated 6 February 1987, were also declared to be unconstitutional and invalid.
- ↑ The deceased’s father in Bhe and the deceased’s two male cousins in Shibi.
25
