[61] Who then should, as a matter of justice and equity, pay Mr Gory’s costs in the court below? The reason why Hartzenberg J ordered the second and third respondents to pay one half of such costs was that, in his view, Mr Kolver “was aided and abetted [in what Hartzenberg J regarded as his ‘obstructive’ conduct[1]] by the second and third respondents” and that their denial of a permanent life partnership with reciprocal duties of support between Mr Gory and their son could not “be justified”.[2] To my mind, it is apparent from the affidavits filed in the court below that, while the second and third respondents treated Mr Gory, in the period after their son’s sudden death, in a manner that was insensitive to Mr Gory’s shock and grief, they had nevertheless gone some way during their son’s life towards acknowledging Mr Gory as their son’s life partner and overcoming such prejudices as they may have had based on their son’s sexual orientation. As with all inheritance disputes, it is distressing to see people who apparently cared deeply for the deceased in their own ways set at loggerheads over the question of entitlement to the deceased’s estate. I do not consider it to be in the interests of justice and equity that the second and third respondents be mulcted in costs. For reasons on which I will elaborate below, I am of the view that the fairest solution would be to order the fifth respondent (the Minister) to pay the costs incurred by Mr Gory in the High Court.
[62] As indicated above, apart from filing an answering affidavit dealing in the main with the question of retrospectivity of the declaration of constitutional invalidity of section 1(1) of the Act, the Minister did not formally oppose Mr Gory’s application in
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