The unconstitutionality of section 1(1) of the Act
[19] Section 1(1) of the Act confers rights of intestate succession on heterosexual spouses but not on permanent same-sex life partners. As these partners are not legally entitled to marry, this amounts to discrimination on the listed ground of sexual orientation in terms of section 9(3) of the Constitution, which discrimination is in terms of section 9(5) presumed to be unfair unless the contrary is established.[1] Given the recent jurisprudence of South African courts in relation to permanent same-sex life partnerships,[2] the failure of section 1(1) to include within its ambit surviving partners to permanent same-sex life partnerships in which the partners have undertaken reciprocal duties of support is inconsistent with Mr Gory’s rights to equality and dignity in terms of sections 9 and 10 of the Constitution.[3] There was no attempt by the respondents either in the High Court or in this Court to justify the limitation of Mr Gory’s rights in term of section 36 and, in my view, there is no such justification. It follows that the High Court correctly found section 1(1) of the Act to be unconstitutional and invalid to the extent alleged by Mr Gory and that paragraph 1 of the order of the High Court must be confirmed.
The appropriate remedy
- ↑ For the relevant provisions of the interim Constitution, see preceding note.
- ↑ See National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at para 37 n 41; 2000 (1) BCLR 39 (CC) at para 37 n 42; Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) at para 32 n 27; 2002 (9) BCLR 986 (CC) at para 32 n 22; Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC); 2002 (10) BCLR 1006 (CC) at para 32 n 33.
- ↑ See n 18 above for the relevant provisions of the interim Constitution.
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