FSAL Case Summaries: Prescribed for the exam
1) GORY V KOLVER : 2006
read-in remedy, value-based dimension
Facts:
- Con Court heard an application for confirmation of an order made by High Court-
ordered a read in. Declared s 1 (1) of Intestate Succession Act 81 of 1987
unconstitutional on the grounds that the provision did not provide for a permanent
same-sex life partner to inherit automatically as a spouse would when the other partner
dies intestate; word “spouse” excluded surviving same sex life partners from claiming
from estate.
- Gory: life-time partner of Brooks. Kolver left as executor of estate, nominated by parents
of Brooks- rejecting Gory being the sole heir. Therefore led to dispute: who the lawful
executor was. Intervention from sisters and previous life partners.
- Sisters: argued that they’d suffer prejudice: deprived of vested rights as intestate heirs.
Issue:
- Whether or not s 1 (1) is unconstitutional and what remedy should be
Outcome
- Kolver: removed as executor, suspended admin of estate until new executor appointed.
Court found however, HC exercised discretion unjudicially- Kolver not remunerated for
services and expenses as its decision was not based on substantial reasons
- Con Court in favour of Gory
- Read- in, intestate succession law after the word, “spouse”: “or partner in a permanenet
same sex life partnership in which the partners have undertaken reciprocal duties of
support”.
Constitutional concerns:
, - There were reciprocal duties of support established, still excluded. Therefore inconsistent
with Gory’s section 9 rights to equality and s 10 rights to dignity.
- Leg. Not responsive to re-looking at SA’s laws pertaining to same sex partnership, read
in was important
-piecemeal reform of the law: legislature not forthcoming.
- high court: unconstitutional on grounds of unfair discrimination of sexual orientation s 9
(3)
Matters of concern
- Discrimination on grounds of sexual orientation: that would mean the provision was
invalid from time of commencement (post apartheid, 1994, interim constitution)- would
therefore open flood gate for litigation, same sex life partners reopening cases from the
past on grounds of invalidity
- Retroactive, but limitations to avoid risk of disruption in admin of deceased estates.
- If someone claimed title of property of the deceased, who was in a same- sex life
partnership knowingly might be compelled to return property.
- Spouse was related to married couples, same-sex couples could not marry, no legalized in
civil law
- Reading in: benefits to same sex life partners, but not heterosexual life partners. Time is a
concept- same sex couple living together for a week, agreeing to a permanent partnership
and reciprocal duties will receive benefits of ISA but hetero couple-living together for 30
years cannot
2) DANIELS V CAMPBELL 2004
text-based/literalist approach, language dimension; value-based dimension, purposive/
holistic dimension; historical dimension
Facts:
, - Mrs Daniels married to deceased husband according to muslim rites in 1977. Not
solemnized: Civil law.
- Husband died intestate, income transferred to his estate.
- Mrs D: contributed financially towards household, even purchasing price, therefore
reciprocal duty of support.
Court a Quo
- Respondents: argued that she cannot inherit from estate, marriage not valid in civil law
and therefore did not qualify as, “surviving spouse” in ISA.
- The High Court held: “spouse” only applied to persons married in SA law. However,
agreed: violated Mrs D’s rights to practice religion and cultural beliefs and ordered
read-in to ISA and Maintenance of Surviving Spusoes Act to get her relief she sought.
- Appealed to con court.
Sachs J in Con Court
- “spouse” in its ordinary meaning should include parties to a muslim marriage, therefore
not upholding the read-in.
- Constitutional values of equality, tolerance and respect for diversity strongly in favour of
giving spouses a broad and inclusive constructions, esp when it correlates with the
ordinary meaning of the word: text-in-context approach, language dimension and
value-laden.
- Non-sexism: hard look at reality of flives that women have been compelled to lead by
law and legally- backed social practices: historical dimension, social outlook pertaining
to discourse of women
- Objective of the acts: widows receive a child’s share instead of dependency on familial
benevolence (purposive/holistic dimension).
Ngcobo J:
- Concurrent
1) GORY V KOLVER : 2006
read-in remedy, value-based dimension
Facts:
- Con Court heard an application for confirmation of an order made by High Court-
ordered a read in. Declared s 1 (1) of Intestate Succession Act 81 of 1987
unconstitutional on the grounds that the provision did not provide for a permanent
same-sex life partner to inherit automatically as a spouse would when the other partner
dies intestate; word “spouse” excluded surviving same sex life partners from claiming
from estate.
- Gory: life-time partner of Brooks. Kolver left as executor of estate, nominated by parents
of Brooks- rejecting Gory being the sole heir. Therefore led to dispute: who the lawful
executor was. Intervention from sisters and previous life partners.
- Sisters: argued that they’d suffer prejudice: deprived of vested rights as intestate heirs.
Issue:
- Whether or not s 1 (1) is unconstitutional and what remedy should be
Outcome
- Kolver: removed as executor, suspended admin of estate until new executor appointed.
Court found however, HC exercised discretion unjudicially- Kolver not remunerated for
services and expenses as its decision was not based on substantial reasons
- Con Court in favour of Gory
- Read- in, intestate succession law after the word, “spouse”: “or partner in a permanenet
same sex life partnership in which the partners have undertaken reciprocal duties of
support”.
Constitutional concerns:
, - There were reciprocal duties of support established, still excluded. Therefore inconsistent
with Gory’s section 9 rights to equality and s 10 rights to dignity.
- Leg. Not responsive to re-looking at SA’s laws pertaining to same sex partnership, read
in was important
-piecemeal reform of the law: legislature not forthcoming.
- high court: unconstitutional on grounds of unfair discrimination of sexual orientation s 9
(3)
Matters of concern
- Discrimination on grounds of sexual orientation: that would mean the provision was
invalid from time of commencement (post apartheid, 1994, interim constitution)- would
therefore open flood gate for litigation, same sex life partners reopening cases from the
past on grounds of invalidity
- Retroactive, but limitations to avoid risk of disruption in admin of deceased estates.
- If someone claimed title of property of the deceased, who was in a same- sex life
partnership knowingly might be compelled to return property.
- Spouse was related to married couples, same-sex couples could not marry, no legalized in
civil law
- Reading in: benefits to same sex life partners, but not heterosexual life partners. Time is a
concept- same sex couple living together for a week, agreeing to a permanent partnership
and reciprocal duties will receive benefits of ISA but hetero couple-living together for 30
years cannot
2) DANIELS V CAMPBELL 2004
text-based/literalist approach, language dimension; value-based dimension, purposive/
holistic dimension; historical dimension
Facts:
, - Mrs Daniels married to deceased husband according to muslim rites in 1977. Not
solemnized: Civil law.
- Husband died intestate, income transferred to his estate.
- Mrs D: contributed financially towards household, even purchasing price, therefore
reciprocal duty of support.
Court a Quo
- Respondents: argued that she cannot inherit from estate, marriage not valid in civil law
and therefore did not qualify as, “surviving spouse” in ISA.
- The High Court held: “spouse” only applied to persons married in SA law. However,
agreed: violated Mrs D’s rights to practice religion and cultural beliefs and ordered
read-in to ISA and Maintenance of Surviving Spusoes Act to get her relief she sought.
- Appealed to con court.
Sachs J in Con Court
- “spouse” in its ordinary meaning should include parties to a muslim marriage, therefore
not upholding the read-in.
- Constitutional values of equality, tolerance and respect for diversity strongly in favour of
giving spouses a broad and inclusive constructions, esp when it correlates with the
ordinary meaning of the word: text-in-context approach, language dimension and
value-laden.
- Non-sexism: hard look at reality of flives that women have been compelled to lead by
law and legally- backed social practices: historical dimension, social outlook pertaining
to discourse of women
- Objective of the acts: widows receive a child’s share instead of dependency on familial
benevolence (purposive/holistic dimension).
Ngcobo J:
- Concurrent
