Page:Gory v Kolver (CC).djvu/3

Van Heerden AJ

dispute with Mr Gory, who also claimed to be the deceased’s sole intestate heir,^[1] ultimately resulted in motion proceedings being instituted by Mr Gory in the Pretoria High Court in October 2005.

[4]⁠ On 31 March 2006, Hartzenberg J made the following order:

“1.

It is declared that the omission in section 1(1) of the Intestate Succession Act, 81 of 1987 after the word ‘spouse’, wherever it appears in the section, of the words ‘or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support’ is inconsistent with the Constitution of the Republic of South Africa.

2.

It is declared that section 1(1) of the Intestate Succession Act is to be read as though the following words appear therein, after the word ‘spouse’, wherever it appears in the section – ‘or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support’.

3.

The orders in paragraphs 1 and 2 above shall have no effect on the validity of any acts performed in respect of the administration of an intestate estate that has been finally wound up by date of this order.

4.

It is declared that the applicant and the late Henry Harrison Brooks were, at the time of the death of the deceased, partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support.

5.

It is declared that the applicant is the sole heir of the late Henry Harrison Brooks.

6.

The agreement, dated 9 September 2005 in which the property situated at 152 First Avenue, Bezuidenhout Valley, Johannesburg was purportedly sold to the fourth and/or fifth respondents is declared to be of no force and effect. This particular order has immediate effect.

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“[i]f after the commencement of this Act a person (hereinafter referred to as the ‘deceased’) dies intestate, either wholly or in part, and – … (d) is not survived by a spouse or descendant, but is survived – (i) by both his parents, his parents shall inherit the intestate estate in equal shares”.

1. In terms of section 1(1)(a) of the Act, which provides that –

   “[i]f after the commencement of this Act a person (hereinafter referred to as the ‘deceased’) dies intestate, either wholly or in part, and – (a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate”.

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