Acting Justice Belinda van Heerden, in the Constitutional Court of South Africa

“ In deciding to read words into a statute, a Court should also bear in mind that it will not be appropriate to read words in, unless in so doing a Court can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution. ”

“ Moreover, it is possible that any legislation which Parliament does enact in this regard may be susceptible to a court challenge. Any such legislation will not, as enacted, necessarily deal with the law of intestate succession. In any event, any change in the law pursuant to Fourie will not protect or vindicate the rights of Mr Gory and others in a similar situation, namely those gay and lesbian people whose permanent same-sex life partners have already died or who die before the law is changed or before they have the opportunity to make use of any new dispensation. ”

“ Testators who wanted to protect their autonomy would have executed wills. Moreover, according to Mr Gory, this argument itself amounts to discrimination on the grounds of sexual orientation in that, irrespective of any deliberate intention of a heterosexual spouse in not making a will (whatever such intention may be) , his or her surviving spouse is nonetheless an intestate heir of the deceased estate. ”

“ Thus, in cases involving the constitutionality of a statute, while a direct and substantial interest in the validity or invalidity of the statute in question will ordinarily be a necessary requirement to be met by an applicant for intervention, it will not always be sufficient for the granting of leave to intervene. Even if the applicant is able to show a direct and substantial interest, the Court has an overriding power to grant or to refuse intervention in the interests of justice. ”

“ 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. ”

“ In view of the fact that an order with retrospective effect would cause uncertainty and, in addition, would ignore the wishes of those deceased persons who had consciously and deliberately decided not to make a will but to let their estates devolve in accordance with the scheme of intestate succession set out in the Act, any declaration of constitutional invalidity and reading-in order should be limited so that they apply only prospectively. ”

“ While Mr Bell does not oppose the Starke sisters’ application for intervention, he opposes the relief sought by them. He also applies to intervene should their application be granted. Like the Starke sisters, Mr Bell does not seek costs. Neither Mr Kolver nor the Minister opposes the application for intervention by the Starke sisters, or the conditional application to intervene by Mr Bell. Mr Gory, on the other hand, takes the view that there is no merit in the Starke sisters’ application and that it should be dismissed with costs. ”

“ Mr Bell contends that the Starke sisters’ invocation of the Fourie decision in support of their argument against reading-in is misplaced. He points out that there are two fundamental differences between the Fourie case and the present case when it comes to the exercise by this Court of its remedial discretion. First, the right to marry is a right which can be exercised only prospectively, while the right to inherit intestate is a right which can be asserted only retrospectively. ”

“ Mr Gory counters the Starke sisters’ argument on the question of reading-in by pointing out that, despite repeated dicta of this Court to the effect that the legislative framework must be changed so as to accommodate same-sex life partnerships in a constitutionally acceptable manner, [26] Parliament has continued to deal with unfair discrimination against gays and lesbians on a piecemeal basis, often in response to court decisions. It thus remains to be seen whether Parliament will in fact enact any legislation by the Fourie deadline of 1 December 2006. ”

“ The Starke sisters cite Rule 8 of this Court’s Rules which deals with the intervention of parties in proceedings, providing that –
“ (1) Any person entitled to join as a party or liable to be joined as a party in the proceedings may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a party.” ”

“ To state it more formally, when any factum probandum of a disputed issue is a constitutional matter, then any factum probans, bearing logically on the existence or otherwise of such factum probandum, is itself an issue ‘connected with a decision on a constitutional matter’. ”

“ In the meantime, Mr Kolver was obliged to take the movable assets of the estate into his custody [69] and to take steps to sell the immovable property to defray the debts of the estate which were increasing continually as no income was being received from the property or from any other source. ”

“ By contrast, in the present matter, it is not a same-sex couple seeking relief, but rather a person who claims to be the surviving partner of an alleged permanent same-sex life partnership—different considerations apply to this kind of situation. ”

“ Citing S v Ntsele [36] in support of the contention that questions of retrospectivity often depend on factors in respect of which evidence is necessary, the Starke sisters argue that the only evidence that was adduced concerning the issue of retrospectivity is that contained in the answering affidavit filed in the court below on behalf of the Minister. ”