The applicant averred that regardless of the judgment in Gory, that the non-registration of the union disqualified the respondent from inheriting. The High Court held that it could not deviate from the decision in Gory and that the only permitted deviation would be where the provision declared unconstitutional had been amended, or there occurred a material change by legislative intervention. The High Court further noted that the CUA did not aim to alter the position of heterosexual couples who have elected not to marry nor did it aim to alter the position of same-sex couples who likewise elected not to solemnise and register their same-sex partnerships.

In the Constitutional Court, the appellant argued that the CUA in effect repealed or nullified the findings in Gory. He said that the judgment was an interim measure for a time when same-sex couples could not enter into marriage. This was rectified by Parliament in the CUA which allows for same-sex marriage and thus for the inheritance by, for all intents and purposes, a spouse. He also relied on Volks v Robinson which found that heterosexual couples have the choice to enter into marriages and thus gain the legal protection that attaches. In the same breath, if there is legislation which governs same-sex marriages, it would be illogical to extend the same protection to unmarried same sex-couples, especially when that protection is not extended to their heterosexual peers.

The respondent argued that the CUA and the Gory judgment can and do exist side by side. The reasoning behind Gory was to permit same-sex permanent partners to inherit despite being unmarried. The CGE further argued that Gory gives effect to the spirit, purport and objects of the Bill of Rights because it made it clear that there is no room for preference in protection when it comes to different family structures.

The Constitutional Court held that the ruling in Gory was not an interim measure as the deciding court was aware of the imminent enactment of the CUA and regardless, made provision for intestate succession in the specific circumstance of same-sex permanent partners. The Bench emphasised that the enactment of the CUA did not specifically amend section 1(1) of ISA as was required by Gory and therefore, Gory remains valid as protection for same-sex permanent partners.

The Constitutional Court astutely noted that suggesting that the protection offered by Gory unfairly discriminated against opposite sex permanent partners who were not equally protected was neither here nor there. This is because there has yet to be a constitutional challenge from that category of people. Gory addressed intestate succession of permanent same-sex partners, whilst the CUA addressed same-sex marriage – two different intimate relationships.

This judgment underlines the need to guard against unfair discrimination based on seemingly sound grounds. The existence of legislation governing marriage, same-sex or otherwise, does not make it mandatory for couples to enter into such unions for the purposes of the ISA. It is not the place of the law to instruct citizens on how to conduct their intimate relationships. Neither should the law threaten to withhold protection for failure to enter into legislated unions. 

By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights