achieve this balance is to fashion a limiting order along the lines of the relevant part of this Court’s order in Bhe[1] and also to make provision[2] for a variation of its order on application by an interested party who can show that serious administrative and practical difficulties require such variation.
[43] To summarise my conclusions thus far: first, I am of the view that the High Court correctly found section 1(1) of the Act to be unconstitutional and invalid to the extent that it confers rights of intestate succession on heterosexual spouses but not on permanent same-sex life partners. Second, the most fitting way to cure this unconstitutionality is by reading in after the word “spouse”, wherever it appears in section 1(1), the words “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support”, as was ordered by the High Court. Third, this order of constitutional invalidity should in the main operate retrospectively, but this Court should, in the exercise of its powers in terms of section 172(1)(b)(i) of the Constitution, fashion an order limiting the retrospective effect of the order of constitutionality so as to reduce the risk of disruption in the administration of deceased estates and to protect the position of bona fide third parties as best possible.
The first respondent’s application for leave to appeal
- ↑ Id at para 136 order 8.
- ↑ As was done in both Bhe above n 37 at para 132 and para 136 order 10 and Moseneke and Others v The Master and Another above n 40 at para 30 and para 31 order 5.
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