and delay that might result from the recognition and vindication of their constitutional rights. Any residual concerns about potential dislocation that may be caused by the retrospective effect of the order can be accommodated in the manner in which this Court has previously addressed these concerns in similar cases, namely by making provision for variation of the order on application by any interested party who can show that serious administrative or practical difficulties necessitate any variation.[1]
[37] In response to the argument that a retrospective declaration of invalidity would deprive third parties of vested rights, Mr Gory repeats that, in the absence of a court order limiting the retrospective effect of a declaration of invalidity, the law which is the subject of the declaration is regarded as having become invalid from the moment the relevant provisions of the Constitution came into force.[2] This means that unless the Starke sisters can satisfy the Court that the interests of justice and equity require an order of prospective invalidity to be made, the challenged provisions of section 1(1) of the Act would have become invalid long before the date of death of the deceased in both the matters before this Court. If this Court confirms paragraphs 1, 2 and 3 of the High Court order, then Mr Gory will be regarded as having been Mr Brooks’ intestate heir from the date of the latter’s death and the rights in respect of intestate succession which vested in Mr Brooks’ parents at the date of his death would retrospectively cease to exist. The same would apply to the rights to inherit their late brother’s deceased estate which vested in the Starke sisters on the date of his death if a
- ↑ See, for example, the Bhe case above n 37 at para 132 and para 136 order 10; Moseneke and Others v The Master and Another 2001 (2) SA 18 (CC); 2001 (2) BCLR 103 (CC) at para 30 and para 31 order 5.
- ↑ See para [15] above and the authorities there cited.
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