South African same-sex relationships: 'Gory v Kolver'
Landmark judgement regarding intestate succession in same-sex relationships to appear in SA ConCourt for confirmation today
August 24, 2006
In the matter between Mark Gory vs Kolver, N.O. and Others (Case No. 4928/2005) in the High Court of South Africa (Transvaal Provincial Division)
On 31 March 2006 the High Court of South Africa ruled that Mark Gory (the applicant) was involved in a same-sex life partnership with his late partner, Henry Brooks. Mark Gory brought his application to the High Court to question the constitutionality of section 1(1) of the Intestate Succession Act, No 81 of 1987 which provides, amongst others, that were a person to die intestate, his or her surviving spouse shall inherit the intestate estate in the absence of descendants.
Based on the Constitution of South Africa which guarantees equality and the right not to be discriminated against on the ground of sexual orientation, Mark alleged that the Intestate Act discriminated against same-sex relationships and that the definition of the word 'spouse' in the Intestate Act should be broadened to include the words "or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support".
The High Court ruled that the Intestate Act was inconsistent with the Constitution and that such extension of the word 'spouse' should be read into the Act. Gory and Brooks were declared to have been in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support and Gory was declared to be the sole heir of the Brooks estate. The sale of their common home (by Mr Danie Kolver, the executor of the estate) was set aside and the executor and parents of the late Henry Brooks were ordered to return all items they had taken possession of and which formed part of the estate. The executor (Kolver) and the parents of the deceased were furthermore ordered to pay the costs (de bonis propriis - out of own pocket) of the lawsuit. The court also ruled that the executor (Kolver) was not entitled to remuneration nor be reimbursed for his expenses for services regarding the administration of the estate.
The RSA Constitution makes provision for a Court to make an interim order pending the confirmation or otherwise of its order, by the Constitutional Court. Hence a certain number of the High Court rulings quoted above, require confirmation. This matter will be heard on 24 August 2006 by the Constitutional Court.
Gory decided to prosecute this matter in principle, despite the executor's estimated nett value of the estate at the time to be around R9 000.00. His dedicated and ongoing efforts to achieve a mutually agreeable settlement with the executor and Henry's parents in the time preceding the court case came to nothing.
Mark's claim to the estate was summarily and repeatedly denied described by the executor (Kolver). On 7 October 2005 as a last resort, Mark filed an application before the High Court in Pretoria praying for relief.
Says Gory: "My motivation for reluctantly taking this course of action is rooted in sparing others the anguish which I experienced at the hands of misguided family members and 'ill-informed' legal practitioners. People who do not take cognisance of our Constitutionally enshrined rights, through which this country has set a profound precedent for the rest of the world, must no longer be permitted to labour under the illusions which informed the previous regime in South Africa."
By contrast, an intestate estate worth R10 million is being contested as a direct consequence of the High Court decision in Gory v Kolver N.O. & Others. The Constitutional Court will consider this intervening application in its deliberations. The intervening parties are the sisters of the late Wiliam Starcke and in particular Mr Bobby-Lee Bell, who claims to be the same-sex partner of the late William Starcke. The late William Starcke and his four sisters were the beneficiaries of the sale of Meerendal, a prestigious Cape Wine Estate.
Intestate succession regarding same-sex relationships represents a significant change of law required in South Africa to provide gay, lesbian, bisexual and transgender (GLBT) individuals with rights and privileges equivalent to those of heterosexuals.
Crystal Cambanis, attorney for Gory, says: "South Africa is in some respects leading the way in the establishment of universal human rights which do not discriminate on any basis of sexual orientation. Despite the ruling of the High Court (and its pending confirmation), many South Africans still suffer undue oppression, common to a changing landscape where knowledge of rights is often not communicated, acknowledged or practised. If your same-sex life partner dies intestate, and your worldly goods are looted by means of legally-sanctioned constructs, what are your legal recourses?
This is the essence of the case. May it be that, in time to come, such rights will extend to the rest of the world, developed or emerging." – Issued on behalf of Mark Gory (applicant) and Crystal Cambanis (attorney representing Gory)
Given legal complexities this press release is issued without prejudice and, for full details and accuracy, has to be read in conjunction with the judgement handed down by the Honourable Judge Hartzenberg in the High Court of South Africa on 31 March 2006. A copy of the judgement can be found on sunsite.wits.ac.za. (Scroll to 'Gory v Kolver').
For further information, contact:
Nichols Cambanis & Associates: (Attorneys for the applicant; contact Crystal Cambanis)
Tel +27 11 646 1042
Mobile +27 84 572 0790
Fax +27 11 646 7535
Mark Gory (Applicant)
Tel +27 82 330 6346
Joint statement on same-sex marriage in SA