Johannesburg - The Commission for Gender Equality (CGE) has submitted representations to be friends of the court in a watershed court case interrogating the rights of same sex couples after death.
Represented by the Legal Resources Centre, the CGE made representations on Thursday in the Constitutional Court as amicus curiae (friends of the court) in the application for leave to appeal in the case of Laubscher NO versus Duplan and Another.
This case stems from a court decision in which the partner of a man who had died without having made a will was found to be his lawful heir and, therefore, awarded his estate.
This was despite the fact that the two were not married and had not had a civil union.
However, the deceased man’s brother has now challenged that court decision. According to the CGE, Cornelius Laubscher and his partner, Eric Duplan, had been in a relationship for 12 years and shared duties in their household. Laubscher died last year but did not have a will and his brother elected himself the heir and executor of the estate.
However, Duplan took the matter to court on an urgent appeal and he was declared the heir in line with the judgment in a matter involving Mark Gory and Henry Harrison Brooks.
The two were in a permanent same-sex life partnership of reciprocal duties of support.
When Brooks died intestate in April 2005, his parents nominated Daniel Gerhardus Kolver as the executor of their son’s estate.
They also claimed to be his intestate heirs and that they were entitled to his estate.
On the other hand, Brooks’ partner, Gory, also claimed to be the sole intestate heir and then took the matter to court.
After a lengthy case, the court ruled that Gory was the sole heir of the estate, removing Kolver as executor of Brooks’ estate.
In the current matter, Laubscher’s brother refused to accept the court’s decision that Duplan was the rightful heir and appealed to the Constitutional Court.
The CGE said Laubscher’s brother contends that the Gory case has been repealed by the Civil Union Act and only same-sex partners in a registered civil union can inherit under the Act, something they disagree with.
“The CGE agrees with Mr Duplan’s submissions that the Gory order was not an interim measure; that the Gory order and the Civil Union Act are not incompatible and they do live side by side; and that the Civil Union Act did not repeal the Gory order. The CGE also said if the Court was to undo the Gory order, the substantive equality gains achieved through the case stand to be lost.
“The commission submits that the Intestate Succession Act should be left as is which, in its current form, provides legal protection to unregistered same-sex partners, and provides for significant substantive equality gains for same-sex life partners.”
Judgment was reserved.
@Mizzyb1
The Star