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Pretoria - Same-sex permanent partners will continue to enjoy intestate succession rights - benefit from the estate of a deceased partner - until such time the legislator has spoken the last word on the subject.

This is according to nine Constitutional Court justices, who yesterday ruled in favour of Eric Duplan, whose partner Cornelius Laubscher died without a will. The couple were never married, but were committed to taking care of each other.

Duplan felt he was entitled to inherit under the Intestate Succession Act (ISA), but his dead partner’s brother Rasmus Laubscher contested that in the Gauteng High Court, Pretoria, earlier this year. The high court ruled Duplan was entitled to inherit as the ISA applied to him.

In terms of the act, the estate was divided between family members and spouses. It meant Duplan and the brother of his dead partner would have to split the assets, as Laubscher’s parents had died and there were no other siblings to inherit. However, Rasmus Laubscher turned directly to the Constitutional Court to appeal against this finding.

If he won, it would have meant that he was the sole heir, but the ruling went against him and his appeal was turned down.

The matter before the high court and now the Constitutional Court concerned the intestate succession rights of unmarried same-sex partners in a permanent partnership.

The high court, in earlier ruling in favour of Duplan, based its finding on a former Constitutional Court decision in a case where Mark Gory won his case after his life partner died without a will.

At the time of the Gory decision, the Civil Union Act (CUA) - which allows same-sex partners to marry - was not in force. The highest court in the country, in the Gory matter, ruled in favour of same-sex permanent partners in cases where one died intestate, to give them more rights.

But on appeal, Rasmus argued that this was just an interim measure, which had been overtaken by the CUA. He reasoned that same-sex partners could now get married, which afforded them the same protection as married heterosexual couples.

He also reasoned that to continue enforcing the Gory judgment when the same protection did not extend to permanent opposite sex partners, unfairly discriminated against the inheritance rights of heterosexual couples who were not married.

Acting Justice Boissie Mbha of the Constitutional Court, who wrote the judgment, agreed that an inequality may exist between opposite sex permanent partners and their same-sex counterparts by virtue of the Gory order.

But he concluded that it was up to Parliament to ultimately decide on whether opposite sex couples should benefit from the Gory order, or whether the rights given to same-sex couples should be taken away.

“The legislature is competent to adopt either a generous or a more restrictive approach to its recognition of permanent relationships.”

The judge was of the view that the enactment of the CUA did not specifically amend the ISA. Justice Mbha said civil unions concluded under the CUA constituted a new category of beneficiary and was distinguishable from same-sex permanent life partnerships. Until Parliament had finally decided on the issue, same-sex permanent couples would continue the rights afforded them under the Gory order, he wrote.

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