The Trengove Talks Part 1: The day same-sex couples got the last laugh

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Visiting Professor Adv Wim Trengove
Visiting Professor Adv Wim Trengove

An analysis of the case of Laubscher NO v Duplan

By Jeremy de Beer

Heterosexual people have historically held more power, privilege, and societal advantages than homosexual people. Prior to the Constitution and the right to equality, homosexual people were viciously discriminated against on the basis of their sexual orientation. This discrimination was extensive, but what was perhaps the most visible form of discrimination was the fact that gay people were not allowed to marry and as such could not inherit from their partners under the Intestate Succession Act whereas heterosexual people could.  Since our constitutional democracy, this position has shifted to the extent that homosexual couples are actually afforded more protection than heterosexual couples. “This happened by accident, not design,” said Adv. Wim Trengove SC in a presentation to the final year LLB class of 2017.

In order to understand how this occurred, a bit of background information is needed. The position in South African law is that under the Intestate Succession Act (ISA), if you die without a will, the primary heirs of your estate are your spouse and descendants. This created a massive problem for same-sex couples as prior to 30 November 2006 when the Civil Union Act (CUA) came into effect, gay people were unable to get married (or enter into a civil partnership if you prefer) and so could not inherit from their partners under the ISA as they did not qualify as “spouses”.

Enter the case of Gory v Kolver. In Gory, the inequality of same-sex couples not being able to inherit under the ISA was challenged in the Constitutional Court. The Court decided to cure this inequality by reading in “or partner in a same-sex life partnership” after the word “spouse” in the ISA, making the Act applicable to same sex couples even though they could not get married. This judgment was handed down a week before the CUA came into effect. The CUA allowed same-sex partners to marry and provided in s 13 that a civil union has all the consequences of a common law marriage and that any reference to a marriage in any other law, including the common law, will also refer to a civil union. As such, any reference to the word “spouse” would also refer to a spouse in a same-sex civil union. This also had the effect of curing the original defect in the ISA.


This created an inequality however, as the Gory orderhad alreadyextended the application of the ISA to unmarried homosexual couples (who could now get married under the CUA), but not to unmarried heterosexual couples. Same-sex couples therefore had dual protection in terms of intestate estates, protected by both the Gory order if unmarried and by the CUA read together with the ISA if they were married. The question arose: does the order in Gory no longer apply since homosexual people can now get married and should therefore do so if they wish the ISA to apply to them and their partners?

This question was answered in the fairly recent case of Laubscher NO v Duplan. Cornelius Laubscher was in a same-sex partnership with Eric Duplan since 2003, prior to the legalisation of same-sex marriage. After the CUA came into force however, they still did not get married and Laubscher died intestate in 2015. Laubscher’s brother, Rasmus Laubscher, was appointed as the executor of Cornelius’ estate and argued that Duplan did not qualify under the CUA as an heir as he was never married, nor under Gory as the Gory order was only intended as a temporary measure until the original defect (same-sex couples being unable to legally marry) had been cured. He argued that the CUA had by implication repealed the Gory order by curing the defect. The court found these arguments to have no founding as when the Gory order is read, there is no indication of it ever being intended as a temporary measure and the court was well aware when granting the order that the enactment of the CUA was imminent. Rasmus Laubscher relied on the doctrine that when two statutes are in conflict, the latter takes precedence and the maxim that once the reason for a law falls away, the law too must fall away. The court did not agree with this argument as the two laws were not irreconcilable but were capable of standing together, even if the outcome is that same-sex partners had greater protection than opposite sex partners. As such, Duplan qualified as an heir to his deceased partner’s estate.

This left the issue of unfair discrimination against heterosexual couples, who are still required to be married in order to inherit from an intestate estate. Although the outcome is one that differentiates on the basis of sexual orientation, there was no challenge to the constitutionality of either the ISA (as amended by Gory) or to the CUA. In Laubscher NO v Duplan, there was no cause of action for a challenge to the inequality, and so the court did not make any finding in this regard. “There was also no suggestion of how to remedy the inequality,” remarked Trengove, continuing to ask “do we equalise up by allowing unmarried heterosexual couples to inherit intestate or equalise down by depriving same-sex couples of the Gory order?” Until a valid cause of action and constitutional challenge arises, we will not have an answer. Trengove concluded his presentation by highlighting that we are left with a position where same-sex relationships are better protected than heterosexual relationships, making the case of Laubscher NO v Duplan “the day same-sex couples got the last laugh.”