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APPLICANT’S HEADS OF ARGUMENT - SAFLII

IN THE constitutional court OF south africa . CCT CASE NUMBER : 234/2015. GP CASE NUMBER : 24589/2015. In the matter between : RASMUS ELARDUS ERASMUS LAUBSCHER Applicant (First Respondent in the court a quo). and ERIC JEAN SPIRIDION DUPLAN First Respondent (Applicant in the court a quo). MASTER OF THE HIGH court , PRETORIA Second Respondent (Fifth Respondent in the court a quo). _____. APPLICANT'S HEADS OF ARGUMENT . _____. 1. INTRODUCTION : Leave to appeal the judgment of Acting Justice Muller delivered on 23 November 2015 in the Gauteng Division, Pretoria, is sought. Applicant did not apply for leave to appeal the said judgment to the Full Bench of the Gauteng Division, Pretoria, or to the Supreme court of Appeal, but asks for leave to appeal directly 2. to the constitutional court in accordance with Section 167(6)(b) of the Constitution1 read with Rule 19 of the Rules of the constitutional court . The court a quo was called upon to decide the only dispute between Applicant and First Respondent, being the question whether Applicant in personal capacity or First Respondent is the intestate heir of the deceased.

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CCT CASE NUMBER : 234/2015 GP CASE NUMBER : 24589/2015 In the matter between : RASMUS ELARDUS ERASMUS LAUBSCHER N.O. Applicant (First Respondent in the Court a quo) and ERIC JEAN SPIRIDION DUPLAN First Respondent (Applicant in the Court a quo)

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Transcription of APPLICANT’S HEADS OF ARGUMENT - SAFLII

1 IN THE constitutional court OF south africa . CCT CASE NUMBER : 234/2015. GP CASE NUMBER : 24589/2015. In the matter between : RASMUS ELARDUS ERASMUS LAUBSCHER Applicant (First Respondent in the court a quo). and ERIC JEAN SPIRIDION DUPLAN First Respondent (Applicant in the court a quo). MASTER OF THE HIGH court , PRETORIA Second Respondent (Fifth Respondent in the court a quo). _____. APPLICANT'S HEADS OF ARGUMENT . _____. 1. INTRODUCTION : Leave to appeal the judgment of Acting Justice Muller delivered on 23 November 2015 in the Gauteng Division, Pretoria, is sought. Applicant did not apply for leave to appeal the said judgment to the Full Bench of the Gauteng Division, Pretoria, or to the Supreme court of Appeal, but asks for leave to appeal directly 2. to the constitutional court in accordance with Section 167(6)(b) of the Constitution1 read with Rule 19 of the Rules of the constitutional court . The court a quo was called upon to decide the only dispute between Applicant and First Respondent, being the question whether Applicant in personal capacity or First Respondent is the intestate heir of the deceased.

2 The dispute between the parties required a consideration of the interplay between : the judgment of the constitutional court in the matter Gory v Kolver2, wherein it was declared that the omission in Section 1(1) of the Intestate Succession Act3 after the word spouse , wherever it appears in the Section, of the words or partner in a permanent same- sex life partnership in the which the partners have undertaken reciprocal duties of support , was unconstitutional and invalid, and that the words quoted above should be read in after the word spouse in the Section; and 1. Act No 108 of 1996. 2. 2007 (4) SA 97 CC. 3. Act No 81 of 1987. 3. the subsequent stipulation of the Civil Union Act,4 in Section 13(2)(b) in terms of which the word spouse . includes a civil union partner. The court a quo was furthermore asked to interpret the Civil Union Act, in order to establish the effect of the Act upon the reading-in . in terms of Gory v Kolver. The court a quo did comment upon the judgment in Gory v Kolver, but eventually held that it was bound by the doctrine of stare decisis not to interfere with the judgment of Gory v Kolver It is submitted that the court a quo felt it bound to the reading-in in Gory v Kolver, and did not consider the effect of the Civil Union Act upon the judgment and order of the constitutional court , not to violate the stare decisis principle : [21] However, a court will in my view not violate the stare decisis principle when a provision which is declared unconstitutional, has been amended and has undergone a material change through legislative intervention, provided of course, that the consequential amendment or introduction of an act which removes 4.

3 Act No 17 of 2006. 5. Record, p 22, paragraphs 20 and 21. 4. the constitutional complaint within constitutional constraints is not open to attack.. It is submitted that the court a quo failed to appreciate the supremacy of the legislature to amend the law, even as expressed by the constitutional 2. LEAVE TO APPEAL : It is submitted that the dispute between the parties concerns a constitutional matter : First Respondent's contention was throughout that he was entitled to treatment equal to surviving spouses of traditional marriages and surviving spouses of registered civil unions. The application launched by First Respondent was premised upon discrimination against himself founded upon marital status and unfair sexual The matter therefore concerns the 6. The constitutional court itself in Gory v Kolver, paragraphs 28 and 31 recognised Parliament's prerogative to finally deal with the unconstitutionality of Section 1(1) at the time. In Minister of Home Affairs v Fourie, 2006 (1) SA 52 CC it was stated : I believe that Parliament is well-suited to finding the best ways of ensuring that same-sex couples are brought in from the legal cold.

4 7. Record, p 78, paragraph 5. interpretation, protection or enforcement of the Constitution. The matter further concerns the survival of the reading-in order of the constitutional court , after Section 1(1) of the Intestate Succession Act was found to be unconstitutional. The matter deals with the effect and applicability of the judgment and order in Gory v Kolver after the promulgation of the Civil Union Act. The order of the constitutional court in Gory v Kolver itself provided that an interested person may approach the court for a variation of the order in case of serious administrative or practical problems The dispute between the parties surely concerns a practical problem resulting from the reading-in . order. On a subliminal level the matter deals with probable uncertainty created by the Gory-judgment and therefore deals with the delegate relationship between the judiciary and the legislature, as the effect of the Civil Union Act, partly designed to address the lacuna 8.

5 Paragraph 66, order 4. 6. in our law highlighted by the Gory-matter, is in question. Apart from being a constitutional matter, it is submitted that the matter raises an arguable point of law of general public importance which ought to be considered by the constitutional court : There is no factual dispute between the parties, as appears from the fact that the court a quo was approached by way of stated case. The matter therefore raises a point of law with a prospect of success, as appears from the exposition Not only the gay- and lesbian community has an interest in the matter, but all relatives who qualify as potential intestate heirs of a deceased person who was a partner in an unregistered universal partnership before his/her death, have an interest in the matter. It is therefore submitted that a sufficiently large section of the public has an interest in the matter to comply with the standard that the matter is of general public importance.

6 9. Paulsen v Slip Knot Inv 777 (Pty) Ltd, 2015 (3) SA 479 CC at paragraphs 20 24. 7. It is further submitted that it is in the interests of justice that leave to appeal to the constitutional court be granted to Applicant. Applicant is well aware of the indications that the constitutional court is loath to judge on constitutional issues raised for the first time before the constitutional In casu however, all issues were of course already raised before the court a quo. The simple reason why the constitutional court is approached to grant leave to appeal to it, is : The issue between the parties concerns, as indicated above, the interplay between a judgment of the constitutional court , and subsequent legislation. The constitutional court itself is in the circumstances with respect the appropriate and final court to decide the issues;. The court a quo, primarily to avoid a violation of the stare decisis principle, did not finally deal with the dispute between the parties.

7 The court a quo judged itself bound to the decision in Gory v Kolver, as indicated, and did not finally express itself upon the consequences of the Civil Union Act upon the 10. Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd, 2015 (5) SA 370 CC at paragraph 36. 8. constitutional court judgment. A similar stance by the Supreme court of Appeal, if Applicant should first have filed a Plea to that court , would again have resulted in the avoidance of the determination of the real dispute between the parties. Moreover, because an interpretation of the constitutional court judgment in Gory v Kolver is at stake, finality in the matter can only be reached by the constitutional court finally expressing itself upon the dispute between the parties. Insofar as the prospects of success of Applicant in the appeal are relevant to the interests of justice, it is reiterated that Applicant has a good prospect to be successful in the appeal, in view of the exposition hereinlater.

8 It is conspicuous that First Respondent, although the application for leave to appeal is challenged upon the merits of the appeal itself, raised no objection to leave being granted to the constitutional court without first approaching the Supreme court of Appeal. It is submitted that the grant of leave to appeal to the constitutional court as asked for by Applicant, cannot 9. prejudice First Respondent in any way. On the contrary, it is in the interest of First Respondent that the constitutional court finally addresses the issue between the parties. In view of the aforegoing it is submitted that a proper case has been made out for Applicant to be granted leave to appeal to the constitutional 3. FACTS : The facts agreed upon by the parties to be relevant for adjudication of the dispute between them were set out in a stated case,12 and can be summarised as follows : The deceased died on 13 February 2015;. First Respondent and the deceased lived as partners, since 2003.

9 Until the death of the deceased, in a permanent same-sex partnership in which they have undertaken reciprocal duties of support;. 11. Everfresh Market Virginia v Shoprite Checkers, 2012 (1) SA 256 CC at paragraphs 49 and 50;. Paulsen v Slip Knot Inv 777 (Pty) Ltd, supra at paragraphs 29 to 31. 12. Record, p 8. 10. First Respondent and the deceased never solemnised and registered their same-sex life partnership in terms of the Civil Union Act;. The deceased died intestate;. If First Respondent is not entitled to inherit the intestate estate of the deceased, Applicant is the only intestate heir of the deceased. 4. APPLICANT'S CONTENTION : The effect of the enactment and commencement of the Civil Union Act,13. from 30 November 2006, upon the right of same-sex partners to inherit the intestate heir of a deceased partner, which depends upon a proper construction of the Act, should be conclusive of the issue between the parties. A civil union is defined as : The voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed by this Act, to the exclusion, while it lasts, of all others.

10 (Own emphasis). 13. No 17 of 2006. 11. 5. HISTORY OF EQUALISATION OF RIGHTS OF SAME-SEX. COUPLES : Equality jurisprudence had taken great strides in respect of gays and lesbians in the last decade. The cases articulate far-reaching doctrines of dignity, equality and inclusive moral citizenship. The case law before the promulgation of the Civil Union Act established :14. Gays and lesbians were a permanent minority in society which in the past had suffered from patterns of disadvantage. As a minority they were unable on their own to use political power to secure legislative advantages, and were exclusively reliant on the Bill of Rights for their Continuing discrimination against gays and lesbians was assessed on the basis that marriage and the family are vital social institutions. The legal obligations arising from them perform important social functions. They provide for security, support and companionship 14. Fourie v Minister of Home Affairs, 2005 (3) SA 429 SCA at paragraph 13.


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