[41] In order to protect the public interest in the finality of completed acts, the High Court framed paragraph 3 of its order to exclude the retrospective effect of the order of constitutional invalidity contained in paragraphs 1 and 2 of its order on “any acts performed in respect of the administration of an intestate estate that [had] been finally wound up by date of [the] order.” I agree with the argument advanced by Mr Bell that, for the reasons set out by this Court in the Bhe case,[1] a limiting order framed in these terms goes too far. In the words of Langa DCJ (as he then was) in the majority judgment in Bhe,[2] such an order –
“… would make it impossible to re-open a transaction even where the heir who received transfer knew at the time that the provisions which purport to benefit him or her were to be challenged in a court …
To limit the order of retrospectivity to cases in which transfer of ownership [had] not yet been completed would enable an heir to avoid the consequences of any declaration of invalidity by going ahead with transfer as speedily as possible. What will accordingly be just and equitable is to limit the retrospectivity of the order so that the declaration of invalidity does not apply to any completed transfer to an heir who is bona fide in the sense of not being aware that the constitutional validity of the provision in question was being challenged. It is fair and just that all transfers of ownership obtained by an heir who was on notice ought not to be exempted.”
[42] It is necessary to balance the potentially disruptive effects of an order of retrospective invalidity of section 1(1) of the Act and the effect of such an order on the vested rights of third parties, on the one hand, with the need to give effective relief to Mr Gory and similarly situated persons, on the other. The most appropriate way to
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