latest, on 4 February 1997 when the Constitution came into operation.[1] Thus, so Mr Gory submitted, if a trial court were to resolve the factual dispute existing between the Starke sisters and Mr Bell in favour of the latter, no intestate succession rights would have vested in the Starke sisters on their late brother’s death. It is accordingly not correct that the Starke sisters will be prejudiced if this Court were to confirm paragraphs 2 and 3 of the order of the High Court.
[16]In my view, the Starke sisters are correct in their contention that they do have the requisite direct and substantial interest in the subject matter of Mr Gory’s confirmation application. Until such time as this Court confirms the order of constitutional invalidity of section 1(1) of the Act made by the High Court, such order has no force. When Mr Starke died intestate in November 2005, there was at that time no confirmed order of constitutional invalidity in respect of section 1(1) of the Act, and the rights of intestate succession to Mr Starke’s estate thus vested in his four sisters. They will cease to have these rights if the High Court’s order of constitutional invalidity is confirmed by this Court and if the factual dispute between them and Mr Bell regarding the nature of his relationship with their late brother is resolved in Mr
- ↑ Both the interim Constitution (Act 200 of 1993, date of operation 27 April 1994) and the 1996 Constitution (Constitution of the Republic of South Africa, 1996, date of operation 4 February 1997) prohibit unfair discrimination on the (specified) ground of sexual orientation and provide that discrimination on any specified ground is presumed to be unfair unless the contrary is established (sections 8(2) and 8(4) of the interim Constitution, sections 9(3) and 9(5) of the final Constitution). Furthermore, both Constitutions protect the right to dignity in substantially identical terms (section 10 of both the interim and the final Constitutions). The Act came into operation on 18 March 1988. Thus, as will be discussed further below, if this Court agrees with the High Court that section 1(1) of the Act unjustifiably violates the applicant’s fundamental rights to equality and dignity, then this section is unconstitutional and invalid with effect from 27 April 1994 and must be declared to be so, unless an order limiting the retrospective effect of the declaration of invalidity in terms of section 172(1)(b)(i) is required in the interests of justice and equity.
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